Winzer v. Hall, No. 06-55327 (7-23-07). Confronting AEDPA? Here, petitioner was convicted on making a terrorist threat to his on-again off-again girlfriend when he supposedly said "I'll smoke you and you daughter" while patting his waistband as if he had a gun. The 911 call, which was described by the state trial judge as "one of the calmest " it has heard, was precluded, but the statement came through the officer who interviewed the mother hours later as a "spontaneous utterance" under state law. The mother never showed up for trial; the daughter could not recall. The petitioner was convicted though and got nine years. The 9th (Molloy joined by Kozinski and Trott) granted the petition because the petitioner's confrontation clause rights were violated. Although this occurred pre-Crawford, the right to confrontation was still present under Roberts and Lilly. That right was violated here when the hearsay was let in. The state's holding of "spontaneous" did not preclude federal examination because of the confrontation right, and the justification was wanting given the hours later that the statement was made, and the circumstances. A nice decision in the AEDPA context.

US v. Figueroa-Ocamp, No. 05-50777 (7-24-07). A bittersweet victory. The defendant was facing a 1326 charge with a prior state simple possession conviction. The 9th had previously held this was an aggravated felony and so the defendant faced a +8 adjustment. While the defendant fought this on appeal, the Supremes came down with Lopez v. Gonzeles, 127 S, Ct 625 (2006) with the holding that simple possession is not an aggravated felony because it is a misdemeanor under federal drug laws. The 9th applies Lopez here, and holds that the defendant should not have received the adjustment for an aggravated felony. The problem is that the defendant had already served his sentence. The government moved to dismiss for mootness, but the 9th reasoned that the court might reduce the SR term, and that a corrected sentence was needed for any future considerations or use. The 9th therefore vacated and remanded for resentencing.

Congratulations to Jodi Thorp of the Federal Defenders of San Diego.

US v. Castillo, No. 05-30401 (7-25-07)(en banc). In an important jurisdictional decision, the 9th (Bybee writing for the en banc panel) holds that "a valid guilty plea does not deprive the court of jurisdiction...." The 9th's prior precedents had two different views: an appeal waiver divested jurisdiction, or the appeal waiver was procedural, and did not divest of jurisdiction. The defendant here pled guilty to be a felon in possession. He entered into a plea, where he retained the right to appeal if the sentence was higher than 27 months. It was. His appeal however did not raise the sentence, but only went to the guilty plea, and the merits of the search and preindictment delay. The government responded on the merits, and did not raise the waiver. The first panel dismissed for lack of jurisdiction with a dissent. In the en banc opinion, the 9th reviewed the jurisdictional grant of power to courts from the Constitution and Congress, and whether a plea's terms could infringe upon it. The rules of criminal and appellate procedure set the considerations and order of process, but does not infringe on the power to hear appeals. Procedural defects can be waived; jurisdictional grants cannot be. The 9th reasoned that the court here did have jurisdiction, and that the preclusive effects of a plea waiver concerns the posture, nature of plea, and the circumstances were to be considered by the court, but it had jurisdiction to consider them. In so ruling, the 9th aligned itself with the four other circuits that have considered the issue and found jurisdiction. A lone dissent from Callahan argues that precise issue is whether there's jurisdiction over pre-plea constitutional claims in light of an unconditional guilty plea, and she would argue that there was not given the nature of the allegations.

Congratulations to AFPD David Porter of the E.D. Ca (Sacramento) for the win.