Wednesday, July 01, 2015

Two of today's decisions involve a question about the proper decision maker in § 2254 habeas cases for the stay-and-abeyance procedure described in Rhines v. Weber, 544 U.S. 269 (2005).  The third involves a collateral attack on a removal order in a § 1326 case.

Mitchell v. Valenzuela, No. 12-55041 (Berzon with Pregerson and Wardlaw) --- The Ninth Circuit vacated and remanded the dismissal of a California state prisoner's § 2254 habeas petition, holding that a magistrate judge lacked the authority to rule on a motion for stay and abeyance under Rhines v. Weber, 544 U.S. 269 (2005), because it was dispositive of the claims involved in the motion and therefore had to be decided by a district judge.

The petitioner was convicted of first-degree murder in a California state court.  After completing his direct appeal, he filed a pro se federal habeas petition that contained both exhausted and unexhausted claims.  Such petitions are subject to dismissal, see Rose v. Lundy, 455 U.S. 509 (1982), and so he withdrew the petition in order to exhaust certain claims in the petition.  Later (and within the applicable limitations period), he filed another pro se habeas petition that contained some exhausted and some unexhausted claims.  He also asked for stay and abeyance under Rhines, which the state opposed.  A magistrate judge denied the request for stay and abeyance, finding no good cause for failure to exhaust.  The district court later denied the exhausted claims; no reference was made in the order to the claims that were the subject of the Rhines motion.

Magistrate judges to whom civil cases are delegated under 28 U.S.C. § 636 may issue nondispositive orders but not dispositive ones.  The court had to decide into which category a Rhines motion falls, and held in the context of this case that a Rhines motion is dispositive with respect to the unexhausted claims that are the subject of the motion.  Denying stay and abeyance effectively keeps a habeas claim out of federal court, because it will often be the case that the claim will not be timely filed if the petitioner must return to state court to exhaust it after filing initially in federal court.  And when a petitioner withdraws a mixed petition as required by Lundy, he may not ultimately receive federal review of any of his claims at all.  Denying a Rhines motion thus "preclusively determines the important point that there will not be a federal forum available to entertain the petitioner's unexhausted claims," and thus must be ruled on by a district judge.  The panel remanded the case to allow a district judge to do so.

Congratulations to Deputy Federal Public Defender Michael Weinstein of the Central District of California.

The decision is here:



Bastidas v. Chappell, No. 12-55024 (Berzon with Pregerson and Wardlaw) --- In this companion case to Mitchell, argued before the same panel, the Ninth Circuit also vacated and remanded the dismissal of a California state prisoner's § 2254 habeas petition.  The court held that denying a Rhines motion relating to claims that had *never* been presented to the state courts was also dispositive of those claims, for the same statute-of-limitations-based reasons.  The court also held that the petitioner's failure to object to the magistrate judge's report and recommendation on the entire petition (which did not contain the unexhausted claims) did not waive appellate review of the magistrate judge's ruling on the Rhines motion.  Finally, the panel directed magistrate judges to expressly warn litigants that they have a right to object to magistrates' rulings if they believe that a magistrate's ruling is dispositive, such that the matter must be decided by a district judge.

Congratulations again to Deputy Federal Public Defender Michael Weinstein of the Central District of California.

The decision is here:


United States v. Garcia-Gonzalez, No. 13-50369 (Murphy (10th Cir.) with Gould and Tallman) --- The Ninth Circuit affirmed a conviction for illegal reentry, holding that the defendant's 2012 expedited removal was not fundamentally unfair and that the government was not required to disclose statistics about the number of similarly-situated immigrants in removal proceedings who received discretionary relief (which was a component of the defendant's argument that the expedited removal was fundamentally unfair).

The defendant was born in Mexico but grew up in the United States.  His father ultimately obtained a green card, which gave him the right to adjustment of status at some later date.  But before then, he was convicted of misdemeanor possession of cocaine and other crimes.  He was deported in 2003.  In 2012, he attempted to return by using someone else's birth certificate, but was deported after expedited removal proceedings.  He was found a little over a week later in the United States near the Calexico, California, port of entry, and this time charged with illegal reentry.  He moved to dismiss the indictment, arguing that the expedited removal proceedings were fundamentally unfair, see 8 U.S.C. § 1326(d), but the district court denied the motion.  He pleaded guilty, reserving the right to appeal the denial of his motion to dismiss.

The government conceded that the 2012 expedited removal proceeding did not comply with the applicable regulations.  The issue then became whether the defendant plausibly would have received discretionary relief (in the form of withdrawal of an application for admission to the United States) if the proceeding had been compliant.  The court held that he would not have, because he would not have been able to overcome the bars to admissibility presented by his criminal record.  Nor was he permitted to compare his situation to that of others who had received the discretionary relief he said he would plausibly have also received; that mode of analysis is off the table after United States v. Barajas-Alvarado, 655 F.3d 1077 (9th Cir. 2011).  Nor did either Brady or Fed. R. Crim. P. 16 and 17 require the government to disclose statistics about cases in which other similarly-situated defendants had received discretionary relief, because the defendant did not present any evidence about whether those statistics existed to the district court and a Customs and Border Protection official denied that such statistics existed.

A hard-fought battle by Kara Hartzler of Federal Defenders of San Diego, Inc.

The decision is here:


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