U.S. v. Aguilar-Vera, No. 10-10333 (10-29-12) (Bea with Wallace and Nelson)

Note: This is a District of Arizona case

In another appeal from "Operation Streamline" (the en masse prosecution and sentencing of immigration defendants occurring in Arizona), the 9th again finds error in the procedure -- and again finds the error to be harmless. To reprise the situation, previous challenges have gone to how the defendants are advised of their rights, the timing between advising and the entry of the guilty plea, the number of defendants individuality addressed, and their rights. The cases have found errors in the process, but no prejudice. Here, the defendant, through counsel, timely asked for the court to ensure that the plea was in fact voluntarily. The advising of rights had occurred an hour previously, the groups were around six, and the defendant was going to get some time. The court acknowledged the request, but never followed up. The 9th acknowledged error, but under the record, it was clear that the defendant wanted to plead guilty, and was aware of his rights and what the sentence was going to be. The finding of prejudice is always hard in these types of cases, but at least the challenges are ensuring some attention to procedure and some individualized colloquies. The argument for a due process violation as to procedures was already foreclosed by prior precedent, although defendant preserved it for further review.

Stankewitz v. Wong, No. 10-99001 (10-29-12) (Fisher with Bybee; dissent by O'Scannlain)

Eight years ago, the 9th had remanded to the district court a colorable claim of IAC in sentencing mitigation for an evidentiary hearing to allow the state an opportunity to rebut the allegations. The state chose not to mount an evidentiary hearing, but to proceed on an expanded record. The district court found that the state had failed to rebut the allegations and ordered relief. The 9th affirms. The 9th reviewed the record, and found that counsel was ineffective in investigating and presenting extensive substantial mitigation as to childhood abuse, addiction, and mental health. The state does not get another chance. O'Scannlain dissents, arguing that the district court had no guidance as to the standards for ineffectiveness and prejudice Strickland.  The Supremes had indicated that in reviewing decisions, it had to be all evidence, and the threat of opening doors had to be factored in. Here, the limited mitigation presented (basically in the "power of God" to reform) was made to prevent other aggravating evidence to come in. It should be respected.