Saturday, November 17, 2018

Case o' The Week: A brace of categorical wins -- Menendez and CPC 288(c)(1) offenses

The Honorable Judge William Fletcher

  Taylor-ed to a T.
Menendez v. Whitaker, 2018 WL 5832974 (9th Cir. Nov. 8, 2018), decision available here.

Players:  Decision by Judge W. Fletcher. Concurrence by Judge Callahan, joined by Judge Owens.  

Facts: The Ninth considered two petitions for review of decisions of the Board of Immigration Appeals (BIA). Id. at *2. In both cases, the petitioners were aliens potentially subject to removal. The BIA found that the men had either a crime of moral turpitude, or a crime involving child abuse, because they had been convicted of California Penal Code Sec. 288(c)(1). Id. Section 288(c)(1) prohibits the commission of a “lewd or lascivious act” when the victim is a child of 14 or 15 years old, and the defendant is at least 10 years older than the child. Id.

Issue(s): Is California Penal Code Section 288(c)(1) either a “crime of moral turpitude” under 8 USC § 1182(a)(2)(A)(i)(I), or a crime “involving child abuse” under 8 USC § 1227(a)(2)(E)(i), precluding immigration relief?

Held: “We hold that § 288(c)(1) is neither categorically a crime involving moral turpitude or categorically a ‘crime of child abuse.” We grant Menendez’s and Rodriguez’s petitions for review. We remand both cases to the BIA for further proceedings consistent with this opinion.” Id.
  “We hold that § 288(c)(1) is not categorically a crime involving moral turpitude. Because the statute contains a single, indivisible set of elements, the modified categorical approach does not apply. Descamps v. United States, 570 U.S. 254, 258, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013). The BIA therefore erred in concluding that Menendez’s § 288(c)(1) conviction triggered the stop-time rule and rendered her ineligible for cancellation of removal.” Id. at *7.
  “We hold that Cal. Penal Code § 288(c)(1) is not categorically a ‘crime of child abuse’ under 8 U.S.C. § 1227(a)(2)(E)(i). The BIA therefore did not rely on an appropriate ground in refusing to reopen Rodriguez’s case.” Id. at *8.

Of Note: This is a terrific decision. Judge Fletcher carefully analyzes the full scope of state law that will sustain a conviction for Sec. 288(c)(1) offenses, and correctly concludes that the state offense is overbroad when compared to the federal definitions of “crime of moral turpitude” and “child abuse” offenses. These are not categorical matches, contrary to the BIA’s holdings.
  The case ends, however, on a troubling note. Judges Callahan and Owens, in their concurrence, bemoan the categorical and modified categorical analyses and outcomes that “turn on a determination in the abstract of the breadth of the underlying state statute rather than the person’s actual offense.” Id. at *8. Their concurrence ends with a call to action: “If Congress will not, or cannot act (see Almanza-Arenas v. Lynch, 815 F.3d 469, 483 (9th Cir. 2016) (en banc) (Judge Owens concurring, joined by Judges Tallman, Bybee, and Callahan) ), we can only hope that the Supreme Court will devise a more straight-forward approach to this area of the law.” Id.
  As the composition of the Supreme Court changes, these calls to revisit Taylor become increasingly worrisome.  

How to Use: The obvious first cut for Menendez is in the context of Section 1326(d) motions, for illegal reentry cases. Note that for one of the petitioners, Rodriguez-Castellon, the Dimaya decision gave him the opportunity to come back before the Ninth – despite an earlier published opinion barring relief. See id. at *4 (discussing previous Rodriguez-Castellon decision). Dimaya may be the wedge that opens the door for Section 1326 clients, to mount attacks under this new Menendez decision.
For Further Reading: Respondent in Mr. Menedez’s case is Acting Attorney General Whitaker - for now. The legality of Mr. Whitaker’s appointment may now be before the Supreme Court. Litigants in the Court have asked that the name on a pending case should be Rod Rosenstein -- in their view, the DAG is is actually the acting attorney general.
  For an interesting piece on this fascinating litigation, see NBC article here

Steven Kalar, Federal Public Defender, ND Cal. Website at


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Tuesday, November 13, 2018

Williams v. Filson, No. 13-99002 (Watford with Berzon & Owens)—The Ninth Circuit partly affirmed and partly reversed the denial of a § 2254 habeas petition filed by a Nevada state prisoner, remanding some claims for further procedings and one claim, involving ineffective assistance of counsel in the penalty phase, for an evidentiary hearing. The court also affirmed the denial of the prisoner’s motion for relief from judgment under Fed. R. Civ. P. 60(b) and denied him authorization to file a second or successive habeas petition.

The underlying crime here involves the burglary of a home in Reno, Nevada, in 1982, during which a woman and her unborn child were killed. The case was the subject of intense publicity at the time, and the petitioner ultimately pleaded guilty to capital murder, manslaughter, and burglary in order to avoid jury sentencing on the charges. Nevada law at the time provided that sentencing would be conducted before a three-judge panel. The prosecution portrayed the petitioner as a “depraved individual whose criminal conduct escalated from a series of home burglaries to ‘the most brutal, the most sadistic and most merciless murder ever in the history of Washoe County.’” A forensic pathologist testified that there was “no question that this woman was tortured before she was murdered.” Family members testified that the petitioner was a “caring and dutiful child” and described his childhood growing up in South Central Los Angeles, during which his mother died and he was “bounced around” between different homes and schools. The panel found four aggravating circumstances and one mitigating circumstances, and set the punishment at death. In postconviction proceedings, two of those aggravating factors (the ones relating to felony murder) were struck as invalid under state law, but the death sentence was upheld under harmless-error review.

The initial federal habeas petition in this case was filed pro se in 1998, but the operative petition here, the third amended petition, was filed in 2007, after the petitioner was allowed to return to state court to exhaust certain claims. That petition raised a total of 38 claims. The district court denied some of them as untimely, some of them as procedurally defaulted because the state courts had denied them as untimely, and some of them on the merits without a hearing. The district court certified three of the claims for appeal, and the court of appeals certified two more after asking the state to respond to the petitioner’s requests on appeal to expand the certificate of appealability.

The panel first held that claims raised in an amended petition filed in 1999 were timely with the benefit of equitable tolling. That petition was filed under the district court’s protocol for handling capital habeas cases, under which the court granted two unopposed requests for deadlines for filing a counseled amended petition with the benefit of investigation and discovery. At the time—before the Supreme Court overruled the Ninth Circuit’s liberal standard for amending a habeas petition without running afoul of the statute of limitations, see Mayle v. Felix, 545 U.S. 644 (2005)—the law permitted amending the petition without regard to timeliness concerns. Following a published Tenth Circuit decision that permitted equitable tolling when a petitioner relies on circuit precedent that is later overruled, the panel allowed equitable tolling to render these claims timely, rejecting the district court’s ultimate reliance on Felix to hold the claims to be untimely. The panel remanded these claims to the district court for further proceedings, including whether to excuse the procedural default under Martinez v. Ryan, 566 U.S. 1 (2012).

The panel considered two related claims of ineffective assistance of counsel in the penalty phase relating to the presentation of mitigating evidence. One of those claims relates narrowly to evidence of brain damage. The other relates more broadly to evidence of childhood abuse and trauma, including the effect on the outcome of the penalty phase considering the brain damage along with that evidence.

On the narrower claim, the Ninth Circuit held that the district court did not abuse its discretion in denying a hearing on the claim after concluding that federal review was limited by 28 U.S.C. § 2254(d)(1). This claim was raised in the petitioner’s sixth round of state postconviction review. A panel of the Nevada Supreme Court ruled that the claim was untimely under state law, but the full court sitting en banc “arguably” reached the merits of the claim in the course of deciding whether to excuse the untimeliness. The en banc state supreme court found no cause and prejudice because the failure to consider the brain damage was not prejudicial under Strickland. The Ninth Circuit, in turn, concluded that this ruling was an adjudication “on the merits” for purposes of § 2254(d)(1), and held that it was not unreasonable under Cullen v. Pinholster, 563 U.S. 170 (2011), for the state court to conclude that the failure to present evidence of brain damage to the sentencing panel would not likely have affected either his decision to plead guilty or the decision to impose a death sentence.

On the broader claim, the Ninth Circuit held that an evidentiary hearing was warranted after cutting through a thicket of procedural hurdles. This claim was raised in the petitioner’s fifth round of state postconviction review. The postconvition court held the claim both to be procedurally barred under the law-of-the-case doctrine and to be meritless. On review, however, the Nevada Supreme Court affirmed the denial of postconviction relief solely on the basis of the procedural bar. On appeal the state conceded that the procedural bar was not adequate to support procedural default, and so the claim was not subject to § 2254(d)(1)’s limitation on relief. The court then held that the petitioner did not “fail to develop the factual basis of his claim in state-court proceedings”—he had presented his claim to the state courts, which had denied it on procedural grounds, and the state postconviction court’s treatment of the merits was not fairly supported by the record. Moreover, his allegations of ineffective assistance were colorable. Sentencing counsel failed to investigate and discover evidence of childhood abuse, and therefore focused her mitigation presentation on the petitioner’s “redeeming qualities.” A solid wall of caselaw establishes that this evidence is classically mitigating; no strategic decision would justify not presenting it. Instead, counsel said, “Where are the mitigating factors? They simply do not exist in this case.” On these facts, the Ninth Circuit ruled that the petitioner should have an evidentiary hearing on this claim.

The panel held that the district court properly denied a hearing on claims relating to the guilt decision. Documents presented for the first time in federal court were not the proper subject of a hearing, because the petitioner did not diligently develop the evidence in state court beforehand. Nor did the documents reframe the claim in a much stronger posture, such that the petitioner could not rely on Ninth Circuit Martinez law to obtain a federal hearing.

The Nevada Supreme Court’s interpretation of its aggravating factor involving avoiding a lawful arrest did not raise ex post facto concerns.

Nevada’s timeliness bar was firmly established and regularly followed, and thus was adequate to support the procedural default of those claims subject to the timeliness bar.

The decision in Hurst v. Florida, 136 S. Ct. 616 (2016), does not apply retroactively to cases on collateral review, and so the district court correctly denied the petitioner’s motion under Fed. R. Civ. P. 60(b) and he was not entitled to file a second or successive habeas petition.

Congratulations to AFPD Mike Pescetta and his team in Las Vegas.
US v. Carter, No. 16-50271 (11-2-18)(Bybee w/Gould & Hernandez).

The 9th reverses convictions for sex trafficking and transportation of a minor for a Confrontation Clause violation. The now adult victim witness testified via two-way video because she was seven months pregnant and her physician advised her not to travel. The 9th makes clear that a defendant’s right to confront an adverse witness, child or adult, “cannot be compromised by permitting the witness to testify (whether one-way or two-way) unless Craig’s standard is satisfied.” (11-12). The findings must be case specific and individualized, focused on the trauma for the witness, or circumstances, and there must be no other alternatives to the video. It is a high standard. The test was not met here because the trial could have continued the case. The opinion stresses the importance of face to face confrontation and the constitutional rights of the defendant. This case contains good language for opposing.

Congrats to Ben Coleman on the CJA panel.

The decision is here:

Sunday, November 11, 2018

Case o' The Week: Ninth feeling Confrontational - Laron Carter and Video Witness Testimony

The Ninth, happily, demands The Chair.

United States v. Laron Carter, 2018 WL 5726694 (9th Cir. Nov. 2, 2018), decision available here.

Players: Decision by Judge Bybee, jointed by Judge Gould and DJ Hernandez. Admirable victory for former Fed. Def. of San Diego, Inc. AFD Ben Coleman.

Facts: Carter went to trial on sex trafficking charges. Id. at *1. A witness named “J.C.” testified against Carter via video because she was seven months pregnant and reportedly unable to travel. Id. (J.C. was, by trial, an adult). Id. The government also suggested a Rule 15 depo of J.C. mid-trial, but conceded that it could not guarantee Carter’s attendance at the deposition. Id. 
  Over Carter’s objection the district court permitted J.C.’s video testimony. Id. at *2. The government did not introduce evidence from J.C.’s doctor that she could not travel. Id. 
  During her video testimony, J.C. could not see well and made an ambiguous identification of Carter. Id. Carter was convicted and sentenced to 40 years. Id. at *3.

Issue(s): “Carter contends that permitting J.C. to testify against him remotely by two-way video, rather than in person, violated his Sixth Amendment right to confront the witnesses against him.” Id.

Held:We agree. Criminal defendants have a right to ‘physical, face-to-face confrontation at trial,’ and that right cannot be compromised by the use of a remote video procedure unless it is ‘necessary’ to do so and ‘the reliability of the testimony is otherwise assured.’ Maryland v. Craig, 497 U.S. 836, 850 . . .  (1990). Because alternatives were available for obtaining J.C.’s testimony that would have preserved Carter’s right to physical confrontation, the use of a remote video procedure was not necessary in this case. We therefore vacate Carter’s convictions on the . . . counts involving J.C. and remand to the district court for resentencing on the remaining counts.” Id.
  “The Supreme Court has not decided whether Craig’s standard applies in these circumstances, and until now we have applied Craig only in the context of 18 U.S.C. § 3509, a statute enacted in direct response to Craig that permits child witnesses to testify by two-way video . . . . We now make clear that a defendant’s right to physically confront an adverse witness (whether child or adult) cannot be compromised by permitting the witness to testify by video (whether one-way or two-way) unless Craig’s standard is satisfied. And that standard is a stringent one; the use of a remote video procedure must be reserved for rare cases in which it is ‘necessary.’” Id. at *4 (internal quotations and citations omitted).

Of Note: This important case of first impression applies Craig’s strict Confrontation Clause standards to adult witnesses. Id. (Previous authority had addressed minor witnesses). Judge Bybee pens a scholarly and thoughtful analysis of the high standards demanded by the Confrontation Clause – and along the way, speculates that the Supreme’s Craig decision may not have survived Crawford. See id. at *4 & n.3.
  Carter is now a lead Confrontation Clause case, and a must-read when confronting Rule 15 depos or video testimony.

How to Use: On appeal, the government scrambled for the refuge of “plain error” review, arguing that Carter did not seek a continuance or severance. Id. at *3 & n.2. 
  Judge Bybee is blunt: this argument “has no merit.” Id. 
  Carter specifically objected at trial, asserting Confrontation Clause violations. He wasn’t then also obligated to suggest “other strategies for how the government could introduce evidence against him.” Id.
   Tuck footnote two away, as a welcome and pointed reminder that it is not our job to fix AUSA errors.
For Further Reading: DOJ’s new A.G, Matthew Whitaker, is a lawyer who has not been confirmed by the Senate. He has also jumped ahead of the DAG in spite of the DOJ’s succession plan. 
  Are federal prosecutions during Mr. Whitaker’s administration legalFor an interesting discussion of this fascinating question, see article here

Attorney General Matthew Whitaker
Mr. Whitaker, admittedly, may be uninterested in the Judiciary’s views on this issue -- he has bemoaned the Supreme Court’s “bad ruling” in Marbury v. Madison. See NYT article here.

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


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Sunday, November 04, 2018

Case o' The Week: A Western Gunn battle -- Ornelas and Mens Rea for Federal Attempted Robbery

   A Ninth Circuit panel, the defendant, and an Officer all wrestled over dangerous Gunn.

Mr. Jesus Eder Moreno Ornelas
 (No one badly hurt, thankfully).
  United States v. Ornelas, 2018 WL 5289024 (9th Cir. Oct. 25, 2018), decision available here.

Players: Decision by Judge Friedland, partial concurrence and partial dissent by C.J. Thomas.
  Compelling dissent by DJ Zilly, on defense-expert disclosure issue.
  Yet another notable win for former CD Cal AFPD Carl Gunn.

Facts: Mr. Moreno Ornelas and Forest Service Officer Linde got into dramatic fight after a routine stop near the Mexican border. Id. at *1. 
  According to Officer Linde, Moreno attacked him and knocked him out, grabbed his gun, and tried to shoot the officer. Id. at *2. Moreno then tried to steal Linde’s Forest Service truck. Linde testified that he ultimately prevailed and arrested Moreno at gunpoint. Id. 
  According to Moreno, he compiled with Linde’s orders to sit and be handcuffed, but the officer kept a gun trained on him with a finger on the trigger. Id. Fearing for his life, Moreno wrestled for the gun, emptied the chamber by firing into the air, then ran for the truck to escape. Id. 
  Among many other crimes, Moreno was charged with attempted robbery of the Officer's gun and the Forest Service truck. Id. (18 USC Sec. 2112). 
  Although the defense requested mens rea instructions, it did not object when the court instructed the jury and failed to require the specific intent to steal. Id. at *3. 
  Moreno was convicted by the jury on most counts, including the Section 2112 attempted robbery, and sentenced to 43 years. Id.

Issue(s): “On appeal, Moreno maintains that the district court plainly erred in two ways in instructing the jury on the elements of attempted robbery under § 2112: 
  (i) by failing to instruct that Moreno must have possessed the specific intent to steal; and 
  (ii) by failing to instruct that Moreno must have formed such intent by the time he used force, not just by the time he tried to take the property in question.” Id. at *3.

Held:We agree with the first contention but reject the second.” Id. “Although the district court was correct not to instruct the jury that Moreno must have formed the specific intent to steal by the time he used force, the court was wrong—and plainly so—to omit an instruction on specific intent altogether.” Id. at *4.
  “Congress’s use of the common law terms ‘robbery’ and ‘attempted robbery’ in § 2112 imported the common law meanings of those terms. The district court therefore should have instructed the jury that, to convict Moreno of attempted robbery, it needed to conclude beyond a reasonable doubt that he had formed the specific intent to steal the gun and truck by the time he tried to take them, though not necessarily by the time he used force against Linde. And, given the well-settled elements of common law robbery as well as Carter’s clear indication that § 2112 incorporates the common law, failing to instruct the jury on specific intent was an obvious omission.Id. at *5.

Of Note: Another issue in this complex appeal was the preclusion of a late-disclosed defense expert. Id. at *9.
  Suffice it to say, don’t be late. Id. at *11 (“Because he did not come close the meeting the district court’s reasonable deadline, Moreno was properly left to proceed without his desired expert testimony.”) 
  Somewhat lost in this bigger opinion is a compelling dissent by WD Wa. District Judge Zilly. Id. at *12. Judge Zilly - who is in the district court trenches every day - has the better argument. If caught in this exclusion bind, take a look at Judge Zilly's dissent while attempting to distinguish this Ornelas outcome.  

How to Use: Moreno earned a reversal on the mens rea instruction, but lost on another instruction challenge. At trial, he sought a specific theory-of-the-defense instruction on self-defense. The district court refused, and gave the Ninth’s general self-defense instruction. In a detailed analysis, Judge Friedland concludes that this was not error. Id. at *7-*8.
  Along the way, Judge Friedland delivers a decision of first impression on the general adequacy of the general self-defense instruction. Id. at *8.
  Eyeball Ornelas if considering a self-defense or justification theory: the opinion is likely to impact your run at specific theory-of-the-defense instructions.
For Further Reading: On October 18, Judge Ryan D. Nelson became the second Trump appointee to join the Ninth Circuit. See Ninth Circuit jurist listing here
The Hon. Judge Ryan D. Nelson

For a general background on the Ninth’s newest jurist, see blog post here
  President Trump has also nominated three additional nominees to the Ninth (to the considerable chagrin of a pair of powerful California Senators). See CNN article here

Steven Kalar, Federal Public Defender. Website at


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