U.S. v. Briggs, No. 09-30108 (9-27-10) (Tashima with Fisher and Berzon). The defendant was caught up in plans to rob stash houses. Unfortunately for him, the "masterminds" were ATF operatives. The defendant was charged with drug, gun, conspiracy, and escape counts. He pled, and then, six months later, with new counsel, said he wanted to withdraw his guilty plea. The district court said "no" and he got 320 months. On appeal, the 9th also said "no," to the withdrawl but vacated the sentencing and remanded. The 9th looked at the purported reasons for withdraw, such as failure to understand the sentence possibilities, or even the guilty plea. He had an IQ of 70. The colloquy, however, demonstrates that he had the capacity, and was aware of what he could face. The fact that the range was double what he expected is not a reason to say the district court abused its discretion. Defendant also set forth no evidence of sentencing entrapment. The district court did err in giving the firearm adjustment because the defendant did not possess a weapon; he planned on using one in the robbery but it never came to that.

Martinez v. Schriro, No. 09-15170 (9-27-10) (Wallace with Hug and Clifton). The 9th reaffirms that there is no right to counsel in collateral proceedings. Although the first tier of post-conviction is the time to raise IAC claims, this does not mean that counsel is required. Petitioner argued that he should not be barred from successor petition because his PCR counsel was ineffective and did not raise his IAC claims from his trial and appeal. Different purposes are served between trial and direct appeal and post-conviction. Moreover, the state court (Arizona) had a reasonable basis to deny the claim.

U.S. v. Mayweather, No. 08-50449 (9-27-10) (Block, Sr. D.J., with O'Scannlain and Tallman). Defendant plead guilty to a firearm count. He argued that he should have been allowed to withdraw his plea. The defendant said he told his counsel he wanted to litigate his case and the suppression issue, but that his counsel said he was unprepared for trial, and so forced him to take this plea. Counsel said that he told defendant about the plea, discussed the suppression issue, and that the defendant entered the plea with his eyes wide open (drug charges were dropped). The 9th affirms the district court's denial of the motion to withdraw. This case differs from McTiernan, 546 F.3d 1160 (9th Cir. 2008), where the 9th allowed a withdrawal because counsel never told defendant about a suppression issue, and counsel never investigated or pursued it. Here, though, defendant was aware of the suppression issue as shown in the plea colloquy, where he said that he was not pleading guilty because of any illegally obtained evidence. He knew the issue, and was silent at the colloquy. McTiernan required an evidentiary hearing to see if the facts were known to defendant; here there were, and he still entered into the plea.

U.S. v. Isaac Ramos, No. 09-50059 (9-24-10) (Wardlaw with Reinhardt and Trott). File under "win the battle, lose the war." The defendant, facing a 1326 charge, collaterally attacked the prior deportation order. He argued that DHS and the IJ violated this due process rights and violated their own applicable regulations in removing him through the stipulated removal program under 8 U.S.C. 1229a(d), 8 CFR 1003.25(b). The 9th agreed that there were violations. First, the waiver of appeal was invalid because it was not knowing or voluntary. The defendant did not have counsel; it was not explained; and he may not have understood the language. Second, the stipulated removal hearings violated his due process right to counsel under the Fifth Amendment by requiring him to waive it. His waiver, moreover, was not valid. The 9th also found that the IJ violated the agency regulations by failing to insure the waiver to a removal hearing was voluntary, knowing, and intelligent. Yet, with all these violations, the 9th finds there was no prejudice because the defendant had no right to relief. The waivers may all have violated regulations and constitutional safeguards, but at the end of the day, he would not be allowed to say. Thus, the district court's denial of the motion to dismiss the indictment was affirmed. Still, a good case to see how stipulated removals are done, and the lax procedures and process in the IJ courts.

Norris v. Morgan, No. 08-35645 (9-23-10) (Berzon with Fisher and Snow, D.J.). The 9th rejects a challenge to the State of Washington's life imprisonment sentence for a two-strike sex offender. The petitioner suffered a second conviction for child molestation and received life imprisonment. His challenge was that the sentence was grossly disproportionate. The 9th said it was a close call, but the present confused Eighth Amendment jurisprudence, and given the facts and issues at stake, the state court's decision denying the challenge was not unreasonable.

Rossum v. Patrick, No. 09-55666 (9-23-10) (Gertner, D.J., with Nelson and Reinhardt). The 9th remands for an evidentiary hearing on an IAC claim. The facts are enough to, shall we say, raise the dead. The petitioner was convicted of killing her husband by poison. The poison was fentanyl, which is a synthetic opiate. The motive: she worked in the San Diego Medical Examiner's Office and was having an affair with a co-worker. The evidence was circumstantial, but the odd fact was that the amount of poison was so high that it was impossible for the victim to have lived for several hours, yet, the forensic evidence was that he did. Indeed, he had complained, supposedly, of feeling ill earlier on the day of his demise, and he was taking other medication that, acting together, could have caused his death. So does that mean that the fentanyl could have been planted? Possibly. The affair was an open secret, and the autopsy samples were left unsecured for 36 hours before the medical examiner's office had sent it out to another lab (afraid of a conflict of interest). Someone could have contaminated the samples for a variety of reasons. The one way to know for sure is to test the samples for metabolites. Such a test would determine if the poison was in the system or planted. Counsel, however, failed to ask for such a test, even though it was really the only defense in the case (she was convicted and given a LWOP sentence). As such, this was a Strickland violation. The 9th orders an evidentiary hearing on the IAC claim, and orders the district court to allow testing of the samples and of testing for blood on the victim's clothes, which the petitioner said was not hers.