Case o' The Week: Ninth's Home is its Castillo, No Limits on Subject-Matter J/X

In the recent Jernigan decision, the very experienced Judge Betty Fletcher (left) lead an impressive 13-2 en banc majority to reverse a conviction for Brady error. See blog here. Not to be outdone, relative-newcomer Judge Bybee (right) leads a 14-1 majority in Castillo, to hold that procedural rules do not strip the Ninth of subject-matter jurisdiction. United States v. Castillo, __ F.3d. __, 2007 WL 2120232 (9th Cir. July 25, 2007) (decision available here). A great victory for our public defender colleague Dave Porter.

Players: Very important en banc win by E.D. Cal. AFPD (& RPCV) David Porter. Decision by Judge Bybee, lone dissent by Callahan.

Facts: Castillo lost suppression motions on a § 922(g)(1) [felon in possession] charge, then entered into a plea agreement. 2007 WL 2120232, *2. It wasn’t a “conditional” plea that preserved the right to appeal the motion – it just allowed a sentencing appeal in limited circumstances. Id. Nonetheless, Castillo appealed the motion, and not the sentence. Id. The government “[i]nexplicably” didn’t assert the plea agreement as a bar to the appeal. Id. at *3. The panel held the Ninth had no jurisdiction to hear Castillo’s claims and dismissed the appeal. Id.

Issue(s): “We granted en banc review in this case to resolve a question to which we have given inconsistent answers: Do we have jurisdiction to hear an appeal when the defendant entered a guilty plea in which he waived his right to appeal?” Id. at *1.

Held: “We now hold that a valid guilty plea does not deprive the court of jurisdiction and remand to the panel for further proceedings.” Id. “[W]e conclude that our procedural rules do not expand or contract our jurisdiction and that the action or inaction of the parties neither confers jurisdiction nor deprives us of the power to adjudicate a case.” Id. at *6.

Of Note: Castillo will be a seminal cases on subject-matter jurisdiction to hear a criminal conviction appeal. Judge Bybee carefully explains the difference between subject-matter jurisdiction (bestowed by Congress, cannot be waived by the parties) and procedures (like appellate waivers) which can result in dismissal, but which are subject to waiver or forfeiture. Id. at *3-*4. “Procedural rules do not create or withdraw federal jurisdiction.” Id. at *5 (citation and internal quotation omitted). Thus, although Federal Rule of Criminal Procedure 11 creates the process permitting conditional appeals, “[n]othing in Rule 11 affects our jurisdiction to hear Jacobo Castillo’s appeal.” Id. at *6.

How to Use: Remember Bibler? In this recent, tragic case, a female cooperator got ten years based on District Court Judge Haddon’s repeated and erroneous view that Booker eliminated the Safety Valve. See Case o' The Week blog here. The Ninth dismissed the appeal, originally holding that it lacked jurisdiction because of an appellate waiver.

Last May, we noted that Dave Porter had Castillo pending, and that in Bibler the Ninth was woefully out-of-step in its view of its own jurisdiction to correct a manifestly unjust sentence. See id. Since then, Bibler has been twice amended, but the tremendously unjust sentence still stands. See Bibler, __ F.3d. __ 2007 WL 2050956 (9th Cir. Jul. 19, 2007).

With Castillo’s welcome jolt of jurisdictional juice, the Ninth should take another look at Bibler and revisit its own ability to hear cases of egregious error despite appellate waivers – after all, third time’s a charm.

For Further Reading: Thanks to Judge Haddon’s clear error and the Ninth’s dismissal, Ms. Bibler will be incarcerated at FCI Phoenix until 2011. This is unjust: U.S. Attorney / Associate A.G. Bill Mercer should whip together a Rule 35 letter, get Bibler back before Haddon, and let the poor woman get her Safety Valve break. See Bill Mercer press release here. Of course, the really classy thing would have been to have never asserted the waiver in the first place, and allow the sentence to be corrected through remand from the Ninth . . .



Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org

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