Carrillo-Carrillo v. Coursey, No. 14-35897 (5-24-16)(Watford with Fisher and Berzon). The 9th reversed the dismissal of the IAC petition as being procedurally barred.  It wasn't.  The petitioner had presented his claims, in a pro se portion of Balfour brief (Oregon's version of Anders), by attaching his PCR petition and incorporating it by reference.  The petitioner may not have numbered the claims exactly as required, but some leeway is granted, and the Oregon Supreme Court has held such attachment can constitute presentation of the claim.

Here, the petitioner alleged IAC.  He claimed he was pressured into taking a plea to 15 years when new charges had been filed, trial was looming, and he received bad advice from counsel, who conducted no investigation.  The petitioner had presented the PCR in state court, lost after an evidentiary hearing, and then had a Balfour brief on appeal.

The 9th reverses the dismissal for procedural default and remands for the district court to review on the merits.

Congrats to AFPD Tony Bernstein, Oregon FPD (Portland).

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2016/05/24/14-35897.pdf

Rodriguez v. Copenhaver, No. 14-16399 (5-25-16)(Silverman with Graber; partial dissent by Tashima).  The BOP denied nunc pro tunc discretionary crediting a state sentence to a federal sentence pursuant to 18 USC 3621(b).  In denying the credit, the BOP relied upon a letter from a judge who was not the sentencing judge, as designated by statute, and had been RECUSED.  The judges for the district had been recused because one of the judges had been the victim of one of the offenses. The district court dismissed for lack of jurisdiction.

The 9th held that the courts had jurisdiction over the discretionary awarding of credit because the petitioner alleged violation of statutory authority and a violation of constitutional due process. 

The 9th further held that the BOP had indeed violated the statute by considering the letter, and had violated due process.  The 9th granted the petition and ordered the BOP to consider the request without the letter.

Tashima partially dissented.  He would have found that the BOP had committed error in relying on the letter.  He would not have gone further and found a due process violation.

Congrats to Steve Sady and Elizabeth Daily of the FPD Oregon (Portland) office.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2016/05/25/14-16399.pdf

Smith v. Ryan, No. 14-99008 (5-26-16)(Paez with Clifton and Owens)(Note: This is an Az FPD-CHU case).  The 9th affirmed the denial of petitioner's habeas challenge to his death sentences.  In affirming, under AEDPA deference, the 9th holds that confrontation did not apply in the sentencing phase, that sentencing counsel was not ineffective and that Martinez did not apply, that introduction of other crimes did not violate due process, and that aggravator challenges for vagueness fail.  The 9th found it reasonable for the state supreme court to rely on a 1970 sentencing statute for aggravators and that it could judicially narrow and define the terms.  In so doing, petitioner's categorical challenge was rejected.

 

Petitioner was convicted in 1977 for two murders and given death.  He has had several appeals, resentencings, and petitioners.  Petitioner has been on death row for almost 40 years.

AFPD Mike Burke of the AZ FPD - CHU (Phoenix) and AFPD  Kelly Culshaw (now of the Calif E - CHU) fought long and hard on this case.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2016/05/26/14-99008.pdf

 

Williams v. Johnson, No. 07-56127 (5-27-16)(Kozinski with Whyte, Sr D.J.; Reinhardt dissenting). This concerns whether, in habeas, a juror in a state murder case was dismissed for bias or because she was a principled holdout for acquittal.  On remand from the Supremes, in light of Williams, the 9th considers whether, under AEDPA deference, the dismissal was reasonable.  The 9th holds it was; the dissent argues it wasn't.

 

Case ' The Week: Client, Disappearing, Gets Ten at Hearing - Ornelas and Sentencing in Absentia

The Tenth's C.J., writing for the Ninth, gives ten reasons not to miss a sentencing hearing.  

  United States v. Ornelas, 2016 WL 2342363 (9th Cir. May 4, 2016), decision available here.

Hon. C.J. Tymkovich (Tenth Circuit Court of Appeals)

Players:  Decision by visiting 10th Circuit Chief Judge Timothy Tymkovich, joined by Judges Farris and M. Smith.

Facts: Ornelas had been indicted for conspiracy to distribute meth. Id. at *1. While on release, agents saw him involved in the purchase of meth. Id. He was released again, and agreed to drug testing and mental health counseling. Id. He plead to 10-years, under a plea agreement with an appellate waiver clause. Id. When agents searched his home and found meth, the MJ issued a warrant. Id. At sentencing, defense counsel appeared: Ornelas, however, did not. Id. at *2. Over defense counsel objection, the court imposed the ten year custodial term. Id.

Issue(s): “Ornelas acknowledges that his appeal waiver explicitly covers the circumstances here because his sentence was not above the high end of the guideline range recommended by the government. He also concedes that his plea was entered into voluntarily and knowingly. Under such circumstances, we would generally apply the appeal waiver and dismiss this appeal. See United States v. Bibler, 495 F.3d 621, 624 (9th Cir. 2007). But we have recognized some exceptions to this general rule. The exception relevant here is for unlawful sentences, which we have defined as those that ‘exceed[ ] the permissible statutory penalty for the crime or violate[ ] the Constitution.’ . . . We address whether the sentence was lawful, and apply the appeal waiver if it was.” Id. at *2.

Held: “Applying this rule, we assume for purposes of this opinion that due process and [Federal Rule of Criminal Procedure] Rule 43 are coextensive, and analyze whether the district court abused its discretion—and thus violated Rule 43—when it sentenced Ornelas in absentia. It did not. The court made a fact finding that Ornelas had ‘absented himself’ from the proceedings, which is a finding of voluntary absence required by Rule 43. That finding is supported by the record.” Id. at *3.

Of Note: For the legions of good folks slugging away on Johnson § 2255 motions this Spring, Ornelas is an interesting decision on appeal waivers. As noted above, Ornelas’s plea agreement had a very explicit appellate waiver. How does the Ninth get as far as the merits? Because plea agreement waivers do not insulate unlawful sentences – those that “exceed [ ] the permissible statutory penalty for the crime or [ ] violate the Constitution.” Id. at *2. 

In Ornelas, it was the client’s constitutional due process rights that were at issue: had they been violated, the waiver would not have applied. In Johnson § 2255 motions, it is our client’s due process right not to be subject to a sentence defined by an unconstitutionally vague term: “crime of violence.” Cite Ornelas (and the seminal case, Bibler), when AUSAs waive waivers during this summer’s Johnson litigation.

How to Use: There’s a better Seventh decision that requires a court to explore any “serious questions raised about whether the defendant’s absence was knowing and voluntary.” Id. at *4, citing United States v. Achbani, 507 F.3d 598, 601 (7th Cir. 2007). The Ninth in Ornelas doesn’t reject Achbani altogether, but notes that in this case, the defense presented no evidence in the district court that explained Ornelas’ absence (drug use and ADHD were excuses presented on appeal). Id. at *4. Explore Achbani when standing alone at sentencing – and make sure to make the record for the troubled client in the district court.

                                               

For Further Reading: A public defender argues for her client at sentencing,

Las Vegas Justice of the Peace Conrad Hafen

protesting “there has to be some leniency in this department.” Las Vegas Justice of the Peace Conrad Hafen instructs her to, “be quiet.” 

When she responds, “Judge, you’re –“ the Judge orders her handcuffed, puts her in the jury box with inmates, then sentences her client to six months. 

  For accounts of the episode, see here; and here.

 For a compelling editorial on the practice of cuffing PD’s, see here

Image of the Hon. Chief Judge Timothy Tymkovich (10th Circuit Court of Appeals) from http://www.coloradostatesman.com/wp-content/uploads/TymkovichT.jpg

Image of the Hon. Justice of the Peace Conrad Hafren from http://www.reviewjournal.com/sites/default/files/field/media/web1_WEB_rgb_JUSTICE_LV14-Hafen_2010_3.jpg

Steven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org

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Case o' The Week: Give Unto Others (or Go to Jail) - Inouye and Restitution Orders

 Tithe 10% to the Church -- or face the consequences on judgment day.

  Then give 8% to the Feds -- or face the consequences on judgment day.

United States v. Inouye, 2016 WL 2641109 (9th Cir. May 10, 2016), decision available here.

Players: Per curiam decision with Judges Graber, Bybee, and Christen. Hard-fought appeal by Federal Public Defender Peter Wolff, District of Hawaii.

Facts: Inouye pleaded guilty to wire fraud. Id. at *1. He was sentenced to one month in prison, concurrent terms of supervised release, and was held joint and severally liable for over $200,000 in restitution. Id. The order had the rate of repayment to be set by the Probation Office, “but no less than 10% of his gross monthly income . . . .” Id. at *1. While on supervised release, Inouye started making payments, then stopped, then lied and assured his PO “the checks were in the mail.” Id. Because Inouye had no job, had barely ceased being homeless, and had significant debts, the defense and the government agreed that the repayment schedule should be set at zero, or a nominal fee. Id. 

  At the Form 12 hearing, however, the court sentenced Inouye to a day of custody, 59 months of supervised release, and future restitution at 8% of gross monthly income. Id. Because the government had agreed to no, or nominal, restitution, the court appointed the “Maryland Crime Victim’s ResourceCenter, Inc.” as amicus curiae. Id.

Issue(s): “On appeal, Inouye argues that the district court abused its discretion when it imposed an 8%-of-gross-income restitution schedule because it considered his projected future earnings and drew inferences about Inouye’s finances with ‘no support in the record. . . . The government has changed its position on appeal and now supports the judgement below.” Id. at *2.

Held: “The district court did not abuse its discretion in setting Inouye's restitution schedule at 8% of his gross monthly income. When assessing whether a restitution schedule under 18 U.S.C. § 3664(f)(2) was an abuse of discretion, we follow a two-step inquiry: First, we determine whether the lower court applied the correct legal rule, and second, we determine whether the application of that rule or standard was illogical, implausible, or without support from any inferences that can be drawn from the record. United States v. Hinkson, 585 F.3d 1247, 1261–62 (9th Cir.2009) (en banc); see also United States v. Booth, 309 F.3d 566, 575 n. 6 (9th Cir.2002) (“A restitution order is reviewed for abuse of discretion if it is within the bounds of the statutory framework.”). Inouye fails to make out a case at either step, so we affirm.” Id. at *3.

Of Note: Amicus “Victim’s Resource Center” argued that the Ninth lacked jurisdiction, because of an appellate waiver in the original plea agreement. Id. at *2. Thankfully, the Court rejected all of the arguments challenging the right to appeal a sentence for a supervised release violation. Id. The Ninth agrees with other Circuits that have considered the issue: “A generic appellate waiver does not waive the right to appeal modification or revocation proceedings.” Id.

How to Use: Eight percent of monthly income, for a guy reduced to living rent-free with his aunt, id. at *1, seems like a particularly harsh restitution order (notably, the Hawaiian AUSA apparently agreed). 

  When staving off Inouye in district court, note some unusual facts that may help distinguish the case. Inouye was 36, had no substance abuse problems, was healthy, had been steadily employed throughout his life, and had – for the most part – remained employed during most of his period of supervised release. Id. at *1. Not our typical indigent client. 

   Moreover, remember – as emphasized by the Ninth – “8% of $0.00 is “$0.00.” If this restitution order had been an amount – instead of a percentage – this rate may not have fared as well.

                                               

For Further Reading: What do District Judge Charles R. Breyer, and new San Francisco Police Chief Toney Chaplin, have in common? They both think S.F. cops need body cams. See “For Further Reading” available here; see also “New San Francisco Police Chief Top Priorities: Body Cameras, Use of Force,” available here.  

 

Image of “tithing” from http://cdn.biblemoneymatters.com/wp-content/uploads/2008/02/tithe.png

Steven Kalar, Federal Public Defender, N.D. Cal. Website at www.ndcalfpd.org

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