Two opinions today -- an en banc decision holding that a
California state convict exhausted his remedies in an appeal from a misdemeanor
DUI conviction, and an immigration decision holding that possession of child
pornography is not an aggravated felony.
1. McMonagle v. Meyer, No. 12-15360 (Nguyen for the en banc panel) ---
The en banc panel reversed a district court's denial of a California state
convict's § 2254 petition, holding that he exhausted his state-court remedies
from a misdemeanor conviction. The panel further granted him equitable tolling
for relying on precedent that the en banc panel overruled in the course of
explaining how he had exhausted his state-court remedies, and remanded the
petition for consideration of the merits of the claims.
A California state jury convicted the petitioner of two DUI
crimes -- driving while under the influence, and driving with a BAC level of
.08% or greater. The appellate division
of the superior court reversed the second of these convictions on Confrontation
Clause grounds, but affirmed the first.
He then asked the appellate division to certify the case for appeal to
the California Court of Appeal, and when the appellate division denied
certification he asked the Court of Appeal to transfer the case. The Court of Appeal denied transfer. Then he filed a state habeas petition with
the California Supreme Court, which denied the petition. The petitioner then filed a § 2254 petition, which
the district court denied as untimely under AEDPA. According to the district court, the
conviction became final when the Court of Appeal denied the petitioner's
transfer request, such that he should have then petitioned for a writ of
certiorari from the U.S. Supreme Court.
He did not do so, and filed his § 2254 petition more than a year after
his cert deadline expired. A three-judge
panel of the Ninth Circuit disagreed with the district court's timeliness
ruling, and then the Ninth Circuit decided to rehear the case en banc.
After surveying California procedure for seeking appellate
review of a misdemeanor conviction, the court held that the conviction became
final for purposes of state law when the Court of Appeal denied the transfer
request. But in Larche v. Simons, 53 F.3d 1068 (9th Cir. 1995), the Ninth Circuit
had held that the state habeas petition in the California Supreme Court was a
required component of the state's established process of appellate review. The Ninth Circuit held that this was
incorrect in light of the California Supreme Court's decision in Marks v. Superior Court, 38 P.3d 512
(Cal. 2002). This required the Ninth
Circuit to overrule Larche, and hold
that a California state misdemeanor convict exhausts his state-court remedies
by seeking transfer with the appropriate division of the California Court of
Appeal.
Because the petitioner here was relying on Larche to exhaust his claims, the panel
granted him equitable tolling of AEDPA's limitations period, and remanded the
case for consideration of the merits of his claims.
The decision is here:
2. Chavez-Solis v. Lynch, No. 11-73958 (Bybee with Fisher and Bea) ---
The Ninth Circuit granted a petition for review of a removal order, holding
that a conviction for possession of child pornography under Cal. Penal Code §
311.11(a) is not an aggravated felony under 8 U.S.C. § 1101(a)(43)(I), and thus
that the petitioner was not removable based on his conviction of that crime.
For purposes of the categorical analysis, the relevant metric
of comparison was the federal child-pornography statute, 18 U.S.C. §
2252(a)(4)(B). The Ninth Circuit had
previously held, in an unpublished decision, that California's statute was
meaningfully identical to the federal one.
But "new arguments" led the court to reevaluate this
decision. For one thing, the California
statute encompassed depictions of more kinds of sexual conduct than the federal
statute, because California's statute punished depictions of any touching of a
child on any part of the child's body.
The government had argued that this did not make the California statute
overbroad, because the petitioner was required to show a realistic probability
that the state statute would be applied to prosecute someone for conduct in the
overbroad area. The Ninth Circuit
rejected this argument because the text of the state statute was clear, and so
the reasonable-probability showing was unnecessary. Moreover, California court decisions showed
that the statute would be used to target conduct in the overbroad area. And because California did not require a jury
finding of a depiction of any particular type of sexual conduct in order to
convict, the state statute was not divisible under Descamps, and thus the modified categorical approach was unavailable.
The decision is here:
posted by Jon Sands at 10/06/2015 11:04:00 AM
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