Washington v. Shinn, No. 05-99009 (12-20-21)(Callahan w/Gould & VanDyke). In a pre-AEDPA capital habeas petition, the 9th denies petitioner’s IAC claim. The 9th concluded trial counsel did not meet the first Strickland prong (deficient performance) for failure to investigate or present certain mitigating evidence of diffuse brain damage, childhood abuse, and drug abuse. Even if counsel’s actions fell below professional standards, there was no prejudice.

The 9th notes that it is not “insensitive” to the fact that two other co-defendants do not face the death penalty: one had his conviction overturned and the other had his capital sentence vacated (and has since died). The 9th recognizes the “temptation” to bend legal sentences to equalize outcomes, but the panel must stay true to “its duty.”

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/12/20/05-99009.pdf

US v. De La Mora-Chen, No. 20-30187 (11-29-21)(Tallman w/Gould & Bumatay). The 9th affirms the district court’s dismissal of a defendant’s motion to dismiss the 1326 indictment. The defendant argued he was precluded from collaterally attacking the underlying order of removal. The defendant had raised an asylum claim which had been denied in expedited removal and he did not appeal. The 9th holds the defendant raising an asylum claim in expedited removal proceedings must exhaust administrative remedies before the defendant can collaterally challenge in a subsequent criminal case. Here, the defendant was given an opportunity to appeal the denial of his claim (no credible fear despite being kidnapped and held for ransom and maimed) and made a “considered and intelligent” decision not to. Thus, he was precluded from now collaterally attacking it in this 1326 case.

A valiant effort by Deputy Fed Defender Paul Shelton of the Fed Def Wash E (Yakima).

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/11/29/20-30187.pdf

US v. Reyes, No. 20-50016 (11-26-21)(Collins w/Hurwitz; Higginson concurring). The 9th affirmed part of the sentence but vacated and remanded for resentencing about SR conditions. At sentencing for importation of drugs, the court imposed, without notice, a special SR condition for suspicionless police searches. The court cut defense counsel’s attempt to object off and note the objection. This was enough to preserve the record. When it comes to advance notice of a special condition of SR, the 9th holds advance notice must be given. Prior precedent, US v. Wise, 391 F.3d 1027 (9th Cir. 2004), requires such notice. The 9th rejected the Government’s contention that the Supreme Court in Irizarry v US, 553 US 708 (2008) overruled Wise. In Irizarry, the Court held no advance notice is required for a variance, as it is always in play. This is distinct from a special SR condition, where the parties had no notice of imposition.

On plain error review, the 9th rejected the requirement the court had to articulate why it denied defendant’s request for a downward departure or variance.

Concurring, Higginson would require a court to always articulate any discretionary SR condition, mandatory or special.

Congrats to Doug Keller, CJA, in Cal S.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/11/26/20-50016.pdf

US v. Franklin, No. 20-30136 (11-23-21)(Boggs w/Murguia; Berzon concurring). This is an important sentencing opinion. It involves Guidelines, relevant conduct, and hearsay.  You need to read it.

The 9th considers what standard to use in reviewing the unsworn hearsay testimony of a codefendant used to increase the offense level. Reviewing almost a half century of Guidelines jurisprudence, and the cases, the 9th fashions a two-factor test: (1) whether the statement is “procedurally reliable;” or (2) whether the statement is “substantively reliable.” “Procedural reliability” cannot put the burden on the defendant to prove a negative. The defendant must have an opportunity and means to challenge the statement. “Substantive reliability” requires the statement to be reliable or consistent enough with other statements to indicate probable truth. “Procedural reliability” is reviewed de novo. “Substantive reliability” is more factual and is reviewed for “clear error.” This test is disjunctive: “or.”

At the end, a Hobbs Act robbery, the 9th upheld the use on both standards.  The 9th also found that former precedent foreclose the argument that the Hobbs Act robbery was not a COV.

Berzon concurs. She agrees with the outcome; but argues the test, as developed, requires both. At a minimum, Berzon argues the test has to be “substantively reliable.”

This is a lengthy opinion, reviewing the cases, development of case doctrines, concerns, and various tests.

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/11/23/20-30136.pdf