United States v. Torralba-Mendia, No. 13-10064 (Murphy (E.D. Mich.) with Tallman and Rawlinson) ---

 

In this appeal involving a conviction for conspiracy to commit alien smuggling, the NInth Circuit affirms, finding no reversible plain error stemming from the admission of expert testimony from two Border Patrol agents and no error in admitting investigation reports (form I-213) about the smuggled aliens.

The defendant was a driver for a shuttle company based in Tucson, Arizona, that would transport aliens from the border to stash houses, and only release the aliens upon payment from their family members for their services. Agent Burrola testified at trial as an expert about the common practices of alien-smuggling operations -- how they escorted people across the border, avoided detection by immigration officials, used safe houses, and employed code words. Agent Frazier offered similar expert testimony, as well as lay testimony about what he observed as the case agent investigating this particular smuggling operation. Finally, the government introduced I-213 forms describing the smuggled migrants and how they returned to their respective countries of origin; the I-213 forms were redacted to exclude the manner in which the migrants were apprehended (presumably by the defendant or others in the smuggling operation) and any statements the migrants may have made to immigration officials.

There was no objection at trial to the expert testimony of Agent Frazier, so the court reviewed these contentions for plain error. The court held that the district court erred in failing to instruct the jury about how to use expert testimony from the government's case agent when that agent also testifies as a lay witness about his involvement in the investigation. See United States v. Vera, 770 F.3d 1232 (9th CIr. 2014). Moreover, his lay testimony -- much of which consisted of narrating video surveillance of the smuggling operation -- was proper because he had seen the videos dozens of times and assisted the jury in spotting details they might otherwise have missed and understanding the code words used by people on the video. But on plain-error review, none of these issues were reversible. The case agent's expert testimony was bifurcated (in the sense that the prosecutor's questions involving the agent's specialized knowledge were not intermingled with questions involving his role as investigating agent), he provided adequate foundation for his testimony, and substantial evidence apart from the agent's testimony connected the defendant to the conspiracy.

The district court likewise did not err in admitting Agent Burrola's expert testimony. It helped the jury understand how smuggling operations work in general, and was not overly prejudicial because it put the defendant's actions in context.

Form I-213 is properly admitted under Rule 803(8) as a public record and, as such, does not contain testimonial information for purposes of Crawford v. Washington, 541 U.S. 36 (2004).

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2015/04/28/13-10064.pdf

　

Luna v. Kernan, No. 12-17332 (Watford with Gould and Friedland) ---

 

The Ninth Circuit vacated the dismissal, as time-barred, of a California state prisoner's § 2254 petition, and remanded for further proceedings. The court held that appointed federal habeas counsel's handling of the proceedings amounted to egregious professional misconduct, an extraordinary circumstance that warrants equitable tolling of the AEDPA statute of limitations. The court then remanded to develop a record on whether the petitioner had been diligently pursuing his rights.

The petitioner is a California state prisoner convicted of first-degree murder and other crimes and serving a life sentence. The operative petition in this appeal was filed more than six years after the AEDPA limitation period expired.

The petitioner's effort to seek federal habeas relief from his conviction and sentence started off well enough. He filed a federal habeas petition three months after his conviction became final. The district court even appointed counsel to assist him in litigating it. But appointed counsel's actions undermined the petitioner's effort to timely seek review of his claims. Because only one of the petitioner's claims was fully exhausted, he would need to use the stay-and-abeyance procedure of Rhines v. Weber, 544 U.S. 269 (2005), in order to preserve his right to review of fully exhausted claims within the statutory deadline. And indeed the petitioner had also filed a pro se state habeas petition in superior court. With the benefit of appointed counsel, hopefully he could manage to exhaust those claims.

But that is not what counsel did. After the superior court denied state habeas relief, counsel voluntarily dismissed the pending § 2254 petition in federal court. He did so because he thought that none of the claims in the § 2254 petition were exhausted (and if that were true, dismissal would be required). But counsel was wrong -- there was one exhausted claim in federal court. Nevertheless, because motions for voluntary dismissal are automatically granted, the district court closed the case. Only then did counsel proceed to exhaust the claims in state court, albeit very slowly -- he filed in the California Court of Appeal some three months after being denied in superior court, and then filed in the California Supreme Court some two years after being denied by the Court of Appeal. What's worse, counsel waited four years after seeing the California Supreme Court deny relief before re-filing in federal court. And when he did, he tried to amend the petition in the closed case rather than initiating a new civil case. All the while, counsel was assuring the petitioner that his rights were being protected.

The district court appointed new counsel to represent the petitioner, who sought equitable tolling necessary to render the new petition timely. The magistrate judge did not conduct a hearing and based his decision to deny equitable tolling on only some of the written correspondence between the petitioner and his former counsel. Based on this limited set of evidence, the district court denied equitable tolling and dismissed the petition as untimely.

In light of the court's precedents and the Supreme Court's decision in Holland v. Florida, 560 U.S. 631 (2010), and Maples v. Thomas, 132 S. Ct. 912 (2012), the court found that former counsel's actions amounted to "egregious attorney misconduct" rather than "garden-variety negligence," and held that extraordinary circumstances existed that prevented timely filing. But the court remanded for further findings on the question of diligence, because the record did not contain the full extent of correspondence between the petitioner and his former counsel and thus was not adequately developed to allow a determination about whether the petitioner was actively pursuing his right to relief during the six-year delay.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2015/04/28/12-17332.pdf