U.S. v. Vidal-Mendoza, No. 11-30127 (01-15-13) (Ikuta with Tashima and Tallman)

A change in law does not help this 1326 defendant.  The defendant's 1326 charge was dismissed because the district court found that in the immigration proceeding the Immigratoin Judge erroneously informed the defendant that his Oregon stat rape conviction was an aggravated felony and barred him from relief.  The law subsequently held that the stat rape was not an aggravated felony.  The 9th reversed the district court.  The IJ had a responsibility to inform the defendant, at the time, if he had a basis for relief.  However, at that time, the defendant did not.  The IJ could not be expected to look ahead; the IJ informed the defendant of the lay of the land as it was.  That comports with due process.

U.S. v. Gallegos-Galindo, No. 12-10000 (01-17-13) (Sack with Gould and M. Smith)

In a 1326 sentencing appeal, the defendant argued that a Washington state third-degree rape conviction was not a crime of violence, warranting a +16 level enhancement.  He argued that the conviction was not a forcible sex offense under 2L1.2.  The Guidelines were amended in 2008 to include as forcible sex any sex act involving absence of the victim's consent.  Under a modified categorical approach, this offense was a forcible act, because the factual basis of the plea stated it was without the consent of the victim.  The 9th does not reach out to say whether the state offense is a categorical crime of violence, because it did not need to.

U.S. v. Zepeda, No. 10-10131 (01-18-13) (Paez with Fernandez; dissent by Watford)

This is a Indian jurisdiction case, and specifically the requirement that the government prove that the defendant is an Indian for Major Crimes Act jurisdiction.  In this case, the government and the defendant stipulated to the introduction of the Certificate of Enrollment of the defendant in an Indian tribe.  However, the government introduced NO EVIDENCE that the tribe is federally recognized.  As such, a jury could not find that the defendant had the bloodline back to a federally recognized tribe.  The 9th also held this is a question of fact, not law, and the court could no so decide.  Finally, the court could not take judicial notice.  In dissent, Watford argues that as a matter of law, the tribes to which the defendant was enrolled were federally recognized.  Any error was harmless.

This is a significant case when it comes to "Indian status" as the 9th requires the tie to federal recognzied tribes, and that it is a question for the jury.

Hurles v. Ryan, No. 08-99032 (01-18-13) (Nelson with Pregerson; dissent by Ikuta)

The 9th remanded on the issue of judicial bias in the state trial court.  The state trial court had denied a recusal motion, and then filed a brief in the interlocutory appeal defending her position and commenting on the evidence.  The trial judge then went on to preside over the capital trial that imposed death.  An evidentiary hearing is warranted to develop the record on this issue.  The dissent by Ikuta looks to AEDPA and argues that the decisions by the state courts were not contrary to federal law.  The 9th affirmed the denial of the numerous IAC claims related to trial and sentencing.

Thompson v. Runnels, No. 08-16186 (01-24-13) (Ikuta; concurrence by Goodwin; dissent by Berzon)

Petitioner argues that his confession regarding the murder of his girlfriend should be suppressed under Missouri v. Siebert, 542 US 60 (2004).  No, holds the 9th, because the state of the law at the time the state court decided the case was Oregon v. Elstad, 470 US 298 (1985).  The 9th takes a step back from the Siebert two-step, and pivots to look backwards at the reasonableness of the decision under the law at the time under AEDPA.  The opinion finds it was reasonable.  Dissenting, Berzon argues that the petitioner should be allowed to raise issues, that the application of Miranda in this instance was an open question, and that the Supreme Court had evolved its Miranda jurisprudence and so not applying Siebert was a violation of established law. Goodwin, concurring, recognizes the confusion, and commends both the opinion and dissent.  A strict adherence to AEDPA has him siding with the affirmance of the denial of the petition.