Creech v. Richardson, No. 10-99105 (W. Fletcher with Bybee and Christen) –- The Ninth Circuit affirmed the denial of an Idaho state prisoner’s habeas petition, in which he challenged a death sentence imposed at resentencing following Creech v. Arave, 947 F.2d 873 (9th Cir. 1991), rev’d in part, 507 U.S. 463 (1993).

The district court had certified discrete portions of the petitioner’s claim of IAC at sentencing for failing to present mitigating evidence.  Under Browning v. Baker, 875 F.3d 444 (9th Cir. 2017), the petitioner asked the court to broaden the COA to include the entire claim.  The court declined to do so, reasoning that the district court had effectively complied with the directive in Browning to “craft” the COA at “a higher level of generality.”  Plus, the district court had reexamined other parts of the claim when the case was remanded for further proceedings in light of Martinez v. Ryan, 566 U.S. 1 (2012).

The Idaho Supreme Court’s conclusion that absent mitigating evidence at resentencing did not affect the outcome of the proceeding was reasonable.  Resentencing took place before the same judge who had originally imposed the death sentence, and he took judicial notice of the evidence presented at the first sentencing hearing.  The only new evidence presented at resentencing related to the petitioner’s childhood sexual abuse.  Given the aggravated nature of the killing, this new evidence and other evidence that was allegedly absent from the resentencing would not have affected the outcome.

Because of Shinn v. Ramirez, 142 S. Ct. 1718 (2022), the district court could not consider new evidence presented for the first time in federal court under Martinez.  But even if it could, the court ruled that it would not have changed the outcome of the resentencing hearing.

The district court had dismissed some claims as subject to the second or successive petition bar.  The court reversed the dismissal of those claims but, instead of remanding them for consideration by the district court on the merits, addressed the merits of those claims and denied them.  These claims related to the validity of the underlying murder conviction, which the petitioner was permitted to challenge for a second time under Magwood v. Patterson, 561 U.S. 320 (2010).  These claims went to a potential conflict of interest in the public defender’s office and the trial court’s decision to deny the petitioner’s request to withdraw his guilty plea.

The court denied the petitioner’s request for a remand under Lackey v. Texas, 514 U.S. 1045 (1995), in light of the four decades that the peittioner has spent on death row.

Finally, the court denied the petitioner’s request to file replacement briefs in the wake of Ramirez, because that decision did not affect the court’s treatment of the claims in the appeal.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2022/07/20/10-99015.pdf

US v. Bastide-Hernandez, No. 19-30006 (7-11-22)(en banc)(Owens; Concurrence by Friedland; Partial concurrence and dissent by Collins). Addressing whether a “Notice to Appear” (NTA) is jurisdictional in the context of a 1326 charge and an attack on the prior removal, the 9th writes: “Consistent with our own precedent and that of every other circuit to consider this issue, we hold that the failure of an NTA to include time and date information does not deprive the immigration court of subject matter jurisdiction, and thus Bastide-Hernandez’s removal was not ‘void ab initio,’ as the district court determined. We reverse the district court’s dismissal and remand for further proceedings.”  The defects of the NTA does not bar the immigration court from having jurisdiction. The requirements are more of a “claims processing” rule rather than a bar to the immigration court’s adjudicatory jurisdiction.

Friedland’s concurrence urges the government to abide by and confirm with the statutory requirements for the NTA.

Collins objects to note 10, which instructs the district court to reconsider its 1326(d) analysis, given US v. Palomar-Santiago, 141 S. Ct. 1615 (2021). Collins argues that once the 9th remands, it shouldn’t be directing the court to look at any particular issues.

Valiant fight by Paul Shelton of the Fed Defenders of E. Wash. (Yakima).

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2022/07/11/19-30006.pdf