1.     US v. Vederoff, No. 17-30096 (Gaitan w/McKeown & Friedland).

This is a categorical analysis in the 922(g) context.  In its opinion, the 9^th quoted the sentencing court: “it drives me absolutely nuts as a trial judge to think that things like murder and assault with a dangerous weapon could be conceived as not being crimes of violence, but these are highly technical rulings from courts that predominately don’t have people who have ever been in a trial court, let alone been a trial-court lawyer or trial-court judge.”  The 9^th applied the categorical approach to the priors and held that, under Washington law:  (1) second-degree assault; and (2) second-degree murder do not qualify as “crimes of violence” under 4B1.2(a). The 9^th so held because Washington law, for second-degree assault, is overbroad in having assault with an intent to commit any felony (not a specified set). The second-degree murder is overbroad because it can include felony murder. The statutes were not divisible. The 9^th in its exhaustive opinion looked at generic statutes, Model Penal Codes, and other state statutes.   Despite a variance down, the error in the sentencing was not harmless. The sentencing was vacated and remanded.

Congrats to Alan Zarky and Mohammad Ali Hamoudi, AFPDs, FPD Wash. West (Seattle).

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/02/01/17-30096.pdf

 

2.     Hurles v. Ryan, No. 16-99007 (2-1-19)(Per curiam w/Thomas, Paez, and N. Smith). 

The 9^th affirmed dismissal of a habeas petition.  The 9^th found that petitioner’s IAC claim not viable. The Supreme Court held in Davila v. Davis, 137 S.Ct 2058 (2017) that Martinez IAC claims, allowing post conviction IAC to excuse procedural default of trial counsel IAC, does not extend to IAC defaulted claims for appellate counsel.

The decision is here:

          http://cdn.ca9.uscourts.gov/datastore/opinions/2019/02/01/16-99007.pdf