Tuesday, May 31, 2016

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:


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:

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:

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.



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