Saturday, April 24, 2010

Case o' The Week: Aptly-named Strickland Case Sets New IAC Traps - Modified Categorical / Taylor Analysis

Strickland v. Washington is, of course, the lead Supreme Court case on the ineffective assistance of counsel. Now, ironically, an en banc court of the Ninth Circuit creates a new trap for ineffective assistance in another "Strickland" case, in the context of the Taylor modified categorical analysis. United States v. Strickland, 2010 WL 1529414 (9th Cir. April 19, 2010) (en banc), decision available here.

Players: Hard-fought appeal by Tony Gallagher, demoted in the opinion from the Montana Federal Defender to a Federal Defendant, id. at *1, and AFPD Michael Donahue. Id.

Decision by Judge Callahan (right), concurrences by C.J. Kozinski and (Supreme Court candidate) Judge Thomas. Dissent by Judge Berzon joined by Judges Schroeder, Reinhardt and in part by Judge Thomas.

Facts: Strickland pleaded guilty to possession and receipt of child porn. Id. at *1. The weird procedural history is poorly explained in the opinion – the PSR seems to have come out before the plea, yet there’s no mention of a pre-plea PSR. Id.

In any event, at sentencing a prior conviction for a Maryland sex-crime dramatically increased Strickland’s sentence. Id. Because that Maryland offense was not categorically a predicate offense, the district court undertook a modified categorical analysis. Id. Among the documents the government relied upon in the modified categorical analysis was a docket sheet that stated, “Defendant is a child sex offender.” Id. The district court relied upon this Baltimore docket sheet to deem the Maryland prior a predicate offense, and over the defendant’s objection sentenced him to 240 months. Id. at *2. A three-judge panel affirmed. Id.

Issue(s): “On appeal, Strickland argues that the government failed to produce judicially noticeable documents sufficient to prove that his Maryland conviction for child abuse was a predicate offense . . . He contends that the court misapplied the modified categorical approach and improperly relied on the PSR, [and] the Maryland docket sheet . . . when determining that his prior conviction was a predicate offense.” Id. at *2.

Held: “We determine that the docket sheet . . . clearly establishes that Strickland pleaded guilty to sexual abuse of a minor, and thus the district court properly gave him an enhanced sentence. In reaching this conclusion we determine that: (1) pursuant to our decision in Snellenberger, the district court properly considered the docket sheet; (2) in this instance, there was no need for the docket sheet to be certified; and (3) the docket sheet clearly indicates that Strickland pleaded guilty to sexual abuse of a minor.” Id. at *3.

“[W]e hold that even without certification, a docket sheet, which Maryland law requires be prepared and maintained by a court clerk, and which defendant has a right to review and correct, is of sufficient reliability under
Shepard and Snellenberger.Id. at *5.

Of Note: An en banc opinion, proofread eleven times by eleven Ninth Circuit judges and eleven Ninth Circuit law clerks, has a glaring typo in its first line, at the expense of a respected Federal Defender. Given this unfortunate nit, it is richly ironic that the majority vests such confidence in the accuracy of a single harried Baltimore court clerk churning out an uncertified docket sheet that no one actually reads.

Judge Berzon has the far better argument in her persuasive dissent, when she vigorously questions the reliability of the docket sheets and disputes their use after Shepard. For us in the trenches, Snellenberger and Strickland have created, out of whole cloth, a duty of professional responsibility that no one ever knew existed – reviewing and correcting a frazzled court clerk’s often-erroneous docket.

The good news? This line of authority opens up a whole new world of IAC and habeas claims when defense counsel didn’t review the docket.

How to Use: Also in the mix during the modified categorical analysis were two sex registration forms signed by Strickland. Id. at *1. The Ninth did “not reach the question of whether the district court could consider Strickland’s sex offender registration forms.” Id. at *1. Beware, however, when evaluating a client’s exposure that these sex-registration forms may someday be enough to qualify a prior as a predicate offense.

In his concurrence, Chief Judge Kozinski certainly thinks they would qualify, id. at *8, though the dissenters persuasively argue that registration forms don’t fall within the ambit of Shepard, id. at *9.

For Further Reading: Just to assure you that poor Tony is in fact a Defender, not a Defendant, take a look at his impressive creds here.

Image of the Honorable Consuelo "Connie" Callahan from

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

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