US v. Shehadeh, No. 18-10399 (6-18-20)(R. Nelson w/Siler & Bybee). This is an opinion that decides whether the 14 days to file an appeal runs from the entry of judgment or the entry of amended judgment that contains the restitution amount. The 9th holds that it runs from the amended judgment, which contains the restitution amount. The Supreme Court had held that an appeal filed in the 14 days after the judgment could not spring forward to also be an appeal for an amended judgment including restitution. However, this does not bar a defendant waiting for the amended judgment to file an appeal for the conviction and restitution. The defendant can either file an appeal after judgment or wait. If he files an appeal from the conviction, and then an amended judgment issues with restitution, the defendant has to file an appeal for the restitution.

The defendant had moved to withdraw his guilty plea before the amended judgment issued. The 9th holds that the district court erred in concluding it had no jurisdiction. It did. The amended judgment had not yet issued. The court could allow withdrawal for a fair and just reason. However, the error was not plain.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/06/18/18-10399.pdf

2. Rose v. Guyer, No. 18-35630 (6-18-20)(N. Smith w/M. Smith & Bress). The petitioner had gotten habeas relief for IAC through failure to present a plea agreement. Habeas relief instructed the State to reoffer the plea. It did, with two changes. The state court rejected the plea because the petitioner had not accepted responsibility. The imposed sentence was still life. The petitioner than sought release under failure of the State to follow the mandate. The 9th rejected this. The changes in the plea was to void an illegal term, allowed the State to recommend a sentence, and other terms. All of these the 9th found did not change the gist of the plea.

The 9th dismissed the appeal for lack of jurisdiction because a COA did not issue under Rule 70. Rule 70 allows a petitioner to seek enforcement of a conditional writ of habeas. The 9th holds that COA is required under Rule 70. It justifies the requirement because it is entangled with habeas merits and is not a separate issue.  The 9th then concludes that reasonable jurists would not disagree with the state court’s and district court’s rulings.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/06/18/18-35630.pdf

3. States v. Davis, No. 17-99008 (6-18-20)(Graber w/Friedland; dissent by Berzon). In affirming the denial of a capital habeas petition, the 9th finds that IAC occurred but it was harmless. The petitioner was convicted and sentenced to death for the murder of his parents. Trial counsel argued that someone else did it. He pointed at the inconsistencies in witness testimony and evidence. Yet, he ignored relevant evidence that a certain local gang did it. There was evidence that five gang members had appeared to brag or claim credit for the murder. Defense counsel did not call any of the witnesses, nor seek evidence linking the gang to the murders. The 9th found this was IAC; but it was harmless given the other evidence. Counsel was not ineffective for not calling a gang expert to rebut the State’s evidence that it was not a gang shooting.

Berzon dissented. She would hold the evidence was prejudicial. She would find that even under AEDPA, a finding of harmlessness was unreasonable.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/06/18/17-99008.pdf