Friday, September 02, 2016

1.  Alvarez v. Lopez, No. 12-15788 (8-30-16)(Kozinski w/N. Smith; dissent by O'Scannlain)(Note:  This is an Az FPD case). The 9th granted habeas relief for a tribal court conviction.  The 9th found that under the Indian Civil Rights Act (ICRA), tribes cannot deny defendants the right, upon request, for a jury trial.  The Gila River Indian Community denied the petitioner that right when it failed to inform him that he needed to request a jury.  The balancing test of Randall v. Yakima Nation Tribal Court, 841 F.2d 897 (9th Cir. 1988) found that petitioner's interest in fair treatment outweighed the Community's procedural interests.  The denial of a jury right was structural and required automatic reversal.

Concurring, Kozinski deplored the "rat's nest" of problems with the Community's criminal justice system.

Dissenting, O'Scannlain felt the balancing due process test  of Randall was inappropriate; the focus should be on ICRA.  Under ICRA, there was no affirmative duty to inform the petitioner of his right to trial.

Congrats to Dan Kaplan and Keith Hilzendeger, AFPDs in the Az FPD office (Phoenix).

The decision is here:

2.  Rademaker v. Paramo, No. 14-56946 (8-30-16)(Callahan w/Clifton and Ikuta). The petitioner was convicted of murder with special circumstances (kidnapping).  The jury instruction for asportation was erroneous.  However, the state courts found any error harmless, and under AEDPA deference, the decision was not unreasonable.

The decision is here:

3.  US v. Aguilar-Canche, No. 15-30209 (8-29-16) (M. Smith w/Kleinfeld and McKeown). The defendant was convicted of two drug trafficking offenses, each separate, and with a mandatory minimum.  The convictions were consolidated for sentencing. The court ran the two sentences consecutive to apparently reach the guidelines range.   The consecutive nature of the mandatory sentences barred reduction under the drugs -2 Guidelines amendment.  The reasoning that the court ran the sentences consecutive only to achieve the then existing Guidelines range does not allow application.

The decision is here:


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