Monday, May 07, 2012

Crosby v. Schwartz, No. 10-17726 (5-4-12) (M. Smith with McKeown; Noonan concurring and dissenting).
AEDPA deference again causes the 9th to swallow hard and affirm a denial of a petition.  The case arises from a California prosecution for failure to register as a sex offender.  The petitioner waived his right to a jury trial, and then tried to withdrawal his waiver, all for naught.  His sentence after conviction was 26 years to life.  The 9th deferred to the state courts' findings that his colloquy, although short (really short) was adequate, and that since there was no Supreme Court case on withdrawal of a waiver of a jury, the state court again was not unreasonable.  As for the 26 to life for failure to register, the 9th wrings its hands over proportionality but affirms.  Noonan, following a trend of his, wonders whether the sentence is disproportionate, given that the offense itself had only a three year max (absent the three strikes).  His dissent is worth reading, starting off with a creative  imagined conversation between two lawyers.

Nedds v. Calderon, No. 08-56520 (5-4-12) (Pregerson with Fisher and Berzon).  The district court dismissed petitioner's habeas as untimely.  The petitioner appealed, arguing that equitable tolling should apply and that his petition be considered timely.  The 9th agrees.  The petitioner relied on existing 9th Cir. precedent in delaying his federal habeas while he worked his way through the state court.  When he did file his petition, it would have been timely under precedent.  The Supremes subsequently decided that if the time it took to file a state habeas is deemed unreasonable, then the federal statute is not tolled.  Petitioner acted in conformance with the 9th's precedent, moved expeditiously when the Supremes ruled, and should be entitled to equitable tolling.  The case is remanded for a decision on the merits.

Congratulations to Michael Tanaka of the FPD Calif. Central Office (Los Angeles).


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