US v. Pollard, Jr., No. 20-15958 (8-27-21)(Nelson w/Jack; concurrence by Forrest). To my reading, this is a dangerous habeas opinion regarding “futility.”

This is a Rehaif issue. The petitioner pled to being a felon-in-possession in 2017. In Rehaif v. US, 139 S. Ct. 2191 (2019), the Court required the gov’t to prove a defendant knew he was a felon at the time of the firearm possession. After Rehaif, petitioner filed a 2255.

The majority holds the petitioner did not fulfill the cause prong for procedural default for habeas relief (p.5). He SHOULD have raised the claim because the challenge had been circulating for years, even if it was routinely and expectedly denied by all circuits. The majority distinguishes between a “novel” claim and a “futile” claim. The majority announces the Court does not recognize futility. The petitioner here fails the “cause” prong for procedural default. He also fails prejudice. The latter is meaningless with the first prong being denied.

The concurrence agrees there is no prejudice. The concurrence states the panel need not decide cause because of the failure of prejudice. Also, the concurrence “disagree[s] that Supreme Court precedent dictates the majority’s broad futility-can-never-be-cause rule.” (p. 14). A difference between a claim is futile because a particular court rejects it and one where every circuit for a sustained period has rejected the claim. See Reed v. Ross, 468 US 1, 17 (1984).

To my reading, this decision has far reaching consequences for trial practice and for habeas. Read it and be concerned.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/27/20-15958.pdf

US v. Bartley, No. 20-30034 (8-20-21)(Tashima w/Boggs & Berzon). Can a “Son of God” pack a pistol?  The 9th says “No” under 922(g)(4), which prohibits a person found to be mentally defective or committed to a mental institution from possessing a firearm. In 2011, on a DUI charge, the defendant had been found incompetent.  Diagnosed with schizophrenia, he was restored and released. He then pled to the DUI. In the present proceeding, he was charged with possessing a firearm. He had been acting strangely, shouting, and pointed a gun at a witness. On appeal, he argued the 2011 state competency proceeding did not possess sufficient due process protections; the competency determination was not an adjudication or commitment as it did not require both mental defect and dangerousness; and the statute violates his Second Amendment rights. The 9th rejects the arguments. The state proceeding had sufficient due process protections.  For the second argument, the statute is plain as to a finding of “mental defect” or mental institution. The restoration at a state hospital also fits a mental institution. The 9th rejects the Second Amendment argument as the prohibition falls within a lawful regulatory scheme. It is not unconstitutionally burdensome.

Theodore Blank, AFPD, FPD Services of Idaho, fought hard for the defendant.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/20/20-30034.pdf

US v. Ferguson, No. 19-10228 (8-17-21)(Bumatay w/Thomas & Bress). The 9th affirms a conviction despite a Rule 11 change of plea colloquy error. The defendant made an unauthorized forceful withdrawal from a bank, otherwise known as bank robbery. He pled guilty to bank robbery and conspiracy.

At the COP, which lasted but 10 minutes, the magistrate judge neglected to ask whether the plea was voluntary and whether it was a result of threats or coercion.

Under plain error review, the 9th concluded the error failed to affect substantial rights. The other Rule 11 requirements were all met. In the presentence report, the defendant admitted guilt and expressed remorse. There was no indication of mental issues or of being unaware. The defendant is healthy, held various jobs, and was competent. During the proceeding, he never indicated this plea was anything but voluntary.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/17/19-10228.pdf

1. Hubbard v. US, No. 20-16094 (8-11-21)(per curium w/Nguyen, Owens, and Friedland). The 9th dismisses for lack of subject matter jurisdiction under the Innocence Protection Act (IPA). The petitioner was a serviceman whom a court martial sentenced to life imprisonment for murder and other offenses. The conviction was with no physical evidence. Petitioner sought DNA testing under the IPA. The statute does not state the IPA applies to a court martial. Moreover, the court martial court is dissolved.  Habeas allows the case to be remanded to a federal court if relief is granted. This is not available here.

The per curiam court all concurs (Friedland) with the  per curiam opinion. The concurrence urges Congress to amend the IPA to apply to the military.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/10/20-16094.pdf

2. Jones v. Davis, No. 18-99003 (8-12-21) (Friedland w/Bybee & Lee). On habeas, the 9th reverses the granting of a claim and remands for other claims. The 9th holds the conditioning of a petitioner’s testimony in the guilt phase of a capital case on psychiatric issues to a psychiatric evaluation is not error. It was reasonable under the circumstances.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/12/18-99003.pdf

US v. Prigan, No. 18-30238 (8-16-21)(Murguia w/Boggs & Berzon). The 9th joins six other circuits in holding that a Hobbs Act robbery is not a COV under USSG 4B1.2(a). The six other circuits are the 3d, 4th, 6th, 7th, 10th, and 11th.

Congrats to Fed Defenders Colin Prince and Matt Campbell of Wa E (Spokane).

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/16/18-30238.pdf

US v. Bachmeier, No. 20-30019 (8-13-21)(R. Nelson w/Rawlinson & Christen). The 9th affirms a conviction for a threatening communication to a state judge in violation of 18 USC 876(c). The defendant had threatened a state judge in a state proceeding earlier. He then sought a name change and drew the same judge. He sent a letter asking to dismiss and refile because he had said she could not be impartial because he had stated he intended to kill her family. The threatening was addressed to the Kenai Court House on Alaska but inside had the case caption.

The 9th held a jury could see this was a threat to a person. It was not an amorphous entity but could be found to be a person.

The 9th did find the jury instruction to be error. The model instruction tracks the statute to require the defendant to “knowingly” send a threat. Case law and the Supreme Court require the subjective intent that he knew the letter would be taken as a threat. Although error, it was harmless because the letter could only be taken as threat.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/13/20-30019.pdf

Jones v. Davis, No. 18-99003 (8-12-21) (Friedland w/Bybee & Lee). On habeas, the 9th reverses the granting of a claim and remands for other claims. The 9th holds the conditioning of a petitioner’s testimony in the guilt phase of a capital case on psychiatric issues to a psychiatric evaluation is not error. It was reasonable under the circumstances.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/12/18-99003.pdf

Hubbard v. US, No. 20-16094 (8-11-21)(per curium w/Nguyen, Owens, and Friedland). The 9th dismisses for lack of subject matter jurisdiction under the Innocence Protection Act (IPA). The petitioner was a serviceman whom a court martial sentenced to life imprisonment for murder and other offenses. The conviction was without any physical evidence. Petitioner sought DNA testing under the IPA. The statute does not state the IPA applies to a court martial. Moreover, the court martial court is dissolved.  Habeas allows the case to be remanded to a federal court if relief is granted. This is not available here.

The per curiam court all concurs (Friedland) with the per curiam opinion. The concurrence urges Congress to amend the IPA to apply to the military.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/10/20-16094.pdf

US v. Telles, No. 19-10218 (M. Smith w/Schroeder & Van Dyke). The 9^th affirms conviction and sentence for online enticement of a minor. The district court did not err in denying a competency hearing. The defendant appeared competent; understood the charges; his communications on the phone and with previous counsel all support competency. The court’s conclusion that competency, and defendant’s acting out, was for delay was not error. The 9^th also affirmed the preclusion a mental health evaluation after the defendant failed to cooperate with the government’s mental health expert. Last, the court’s denial of the defendant to represent himself was not error. The request was denied because it was filed for delay.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/07/29/19-10218.pdf

 

1. US v. Gomez, No. 19-50313 (7-28-21)(Ikuta w/M. Smith; dissent by Steele). Yikes! The 9th finds the district court did not err in allowing the prosecution in its case-in-chief to preemptively rebut (!) an entrapment defense. The 9th reasons the defense clearly indicated it was raising entrapment (filing in limine motions and asking for the instruction). Since the government bears the burden of intent, and since the defense can raise entrapment on cross, allowing such evidence will prevent “sandbagging.” The 9th joins the 2nd. Arguably, the 8th is at odds.

The 9th allowed introduction of gang evidence to show defendant’s predisposition for drug trafficking and guns. It comes in under FRE 405(a) (character) to rebut entrapment.

Assuming error in allowing defendant’s parole officer to testify as to a prior carjacking, the 9th finds the error harmless.

Dissenting, Steele would find reversible error. Defense counsel did not raise entrapment in opening statement; the government’s case did not present an opportunity for entrapment to be argued; the defendant’s own witness did not support entrapment; and the court did not find a basis for an entrapment instruction. Thus, for the dissent, there was no basis for “sandbagging.” The defendant did not really raise entrapment. Introduction of such evidence to rebut a nonexistent defense is error.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/07/28/19-50313.pdf

2. US v. Dade, No. 19-35172 (7-28-21)(Choe-Groves w/Berzon & Collins). The 9th affirms the dismissal of a habeas petition as not meeting the requirements of a second or successive petition. Petitioner raised a claim that his underlying offense which supported interstate domestic violence was unconstitutional under Sessions v. Dimaya, 138 S. Ct 1204 (2018). The 9th found it was not. The underlying state offenses of battery or assault had elements of violence under the force clause of 16(a) and not the residual clause of 16(b).

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/07/28/19-35172.pdf