Case o' The Week: Blackstone on the Law -- Blackstone and Timeliness of Johnson guideline Section 2255 claims

   Sir William would be disappointed.

United States v. Blackstone, 2018 WL 4344096 (9th Cir. Sept. 12, 2018), decision available here.

Players: Decision by Judge Clifton, joined by Judges Schroeder and M. Smith. Hard-fought appeal by AFPD Alyssa Bell, Central District of California FPD.

Facts: In ’99, Blackstone was convicted of Hobbs Act robbery and a § 924(c), and sentenced under the (then-mandatory) guidelines to 290 months. Id. at *1-*2. Two priors were treated as “crimes of violence” that triggered Career Offender. Id. His appeal and habes were denied.

  Within a year of Johnson, Blackstone obtained permission to file a second-or-successive § 2255. Id. Blackstone filed a § 2255 in the district court, and the motion was denied on the merits. Id.

  Back up in the Ninth, the government then argued that Blackstone’s motion was untimely. Id. at *3. On appeal, the government contended that “the Supreme Court’s decisions in Johnson and Welch have not authorized a motion by Blackstone at this point because those decisions pertained to the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B), and that neither addressed whether Johnson applies to other clauses providing for enhanced sentences based on convictions for crimes of violence.” Id. at *3.

Issue(s): “[A] right newly recognized by the Supreme Court may open the door to filing a § 2255 motion later in time. The question presented in this case is whether Johnson and Welch have opened that door.” Id. at *3.

Held: “We conclude that they have not.” Id.

  “[T]he Supreme Court has not yet recognized the right asserted by Blackstone. The Supreme Court has not held that the mandatory Sentencing Guidelines are subject to this vagueness challenge. As a result, Blackstone’s current motion is not timely under the statute. In reaching that conclusion, we agree with similar rulings by three other circuit courts that have considered this issue. We deny a similar challenge by Blackstone to a conviction and sentence under 18 U.S.C. § 924(c) for use of a firearm during a crime of violence because the Supreme Court has not recognized that right, either. We affirm the denial of Blackstone’s motion.” Id.

Of Note: This is a terrifically disappointing opinion. As the Ninth’s Johnson warriors have quickly pointed out, the decision relied on the Tenth’s opinion in Greer. See id. at *5. Blackstone failed, however, to wrestle with how Dimaya affected Greer – or acknowledge that the Tenth itself has now granted rehearing in Ward based on Dimaya (the Tenth had previously dismissed Ward based on Greer).

  The Ninth is now crossways with Cross, a Seventh Circuit case, may soon be sideways with the Tenth in Ward, and is a step behind the Supremes after Dimaya.

  Blackstone should go en banc.  

How to Use: To add salt to the wound, in our view the Ninth stretches to resuscitate the government’s “timeliness” argument. On appeal, Blackstone argued that the government did not raise this argument in the district court. See id. at *4 & n.2. The Court reassures us that the government had argued that the petition was time barred: this appellate theory was just an “alternative argument to support . . . a consistent claim.” Id.

  Until the Blackstone en banc and certiorari dust settles, read footnote 2 closely and take a hard look at the government’s district court claims in your Johnson cases. If the government failed to raise a statute of limitations defense in the district court, or conceded timeliness, the Blackstone resurrection of a waived government claim may be avoidable in your case.  

                                               

For Further Reading: In the recent Newton case, a panel including Judges Berzon and Friedland rejected a Johnson claim based on the controlling Watson decision. See mem. dispo here. Notably, the Newton panel avoided the timeliness issue. See id. at 2 fn. 1.

  Of greatest interest, however, it appeared that during the oral argument Judges Berzon and Friedland may have a different view of the timeliness issue, than the Blackstone panel. See oral argument here, starting at 16:25. 

The Honorable Judges Friedland and Berzon

   Here’s hoping that reasonable minds in the Ninth will differ, on Blackstone’s new barrier to our clients’ day in court.

Image of Sir William Blackstone from https://en.wikiquote.org/wiki/William_Blackstone

Image of the Honorable Judges Friedland and Berzon from https://www.ca9.uscourts.gov/media/view_video.php?pk_vid=0000014205 

Steven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org

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Case o' The Week: Mommy & Miranda - Ortiz, the Fifth Amendment, and Confessions

What could be more heartwarming than a maternal cop who assures a nervous young defendant that she "loves him," tells him that he reminds her of her own kids, warmly refers to him as a "young puppy," and assures him that she wants to hug him?

(Oh - did we mention that she also misleads him about being a cop while preparing him for a polygraph, and then elicits a murder confession that leads to his conviction?) Ortiz v. Uribe, 2011 WL 5607625 (9th Cir. Nov. 18, 2011), decision available here.


Players: Decision by Judge Alarcón.

Facts: Suspected of a homicide, eighteen-year old Ortiz voluntarily went to the sheriff’s for questioning. Id. at *1, *2. He waived his Miranda rights. Id. at *1. To support his claim of innocence Ortiz agreed to a polygraph. Id.

Detective Kathy Cardwell conducted the examination – but didn’t reveal to Ortiz that she was a sheriff. Id. When he admitted that he was nervous, Cardwell assured him she would help him get through. Id. Before the exam, she called Ortiz, “young puppy,” and “poor guy.” She compared Ortez to her own sons, “told him that she loved him, and offered him a hug.” Id. (emphasis added). She informed Ortiz that the “cops” couldn’t dictate the questions to her (not revealing that she was a cop,) and assured him “They [the cops] can’t have any say so in here, this is my world.” Id. “[D]o the right thing by [your] mom,” she urged, and by your “daughters and lady.” Id. After these instructions, and before the exam started, Ortiz confessed to the shooting. Id. at *2.

He was convicted in state court of, among other things, murder. The California appellate and Supreme Court denied his challenges to the use of his statements in trial, id., and the federal district court denied his habeas petition. Id. at *3.

Issue(s): “The question before this court is whether the California Court of Appeal’s decision was contrary to, or involved an unreasonable application of, clearly established Supreme Court law, or whether the court’s decision was based on an unreasonable determination of the facts in light of the evidence presented when the court determined that Ortiz’s will was not overborne when he confessed, based on the totality of the circumstances, including Ortiz’s claim that Detective Cardwell played a maternal role during the interview, concealed her identity as a police officer, allegedly made implicit promises that Ortiz would be given leniency, and appealed to his moral obligation to his family. Ortiz argues that his confession was involuntary because his will was overborne as a result of deceptive interrogation tactics.” Id. at *4.

Held: “[A] polygrapher’s empathic and parental questioning does not render a confession involuntary. We are persuaded that the undisputed evidence reflected in the record of the state trial court’s proceedings demonstrates that Detective Cardwell’s advice to Ortiz that he had to tell the truth to pass a polygraph examination, was not coercive. The California Court of Appeal’s conclusion that Detective Cardwell’s motherly or parental tone in preparing Ortiz for a polygraph examination did not violate Ortiz’s Fifth Amendment rights was not contrary to, and did not involve an unreasonable application of, clearly established Supreme Court law, and was not based on an unreasonable determination of the facts in light of the evidence presented.” Id. at *6.

Of Note: There’s little silver lining, in this dark cloud. Beyond its tolerance for an -- unusual -- interrogation technique (remember, Ortiz was just 18), the opinion isn’t bothered by the fact that Detective Caldwell ‘concealed the fact that she was a sworn officer and misled appellant into believing that she was not a police officer and that she was his ally rather than his adversary.” Id. at *6. “[T]his type of ‘deception,’” reassures Judge Alarcón, “is well within the range of permissible interrogation tactics necessary to secure a lawful confession by the police.” Id. at *6.

How to Use: Ortiz is a habeas case, and the Ninth is working under the extraordinarily deferential standards of AEDPA. It is conceivable that on a direct challenge, the facts of Ortiz could violate the Fifth – yet not rise to the level of AEDPA error. Hammer that distinction: the more Ortiz is confined to habeas law, the better.

For Further Reading: “[T]he current system of criminal law and enforcement (like too many of our citizens) has grown obese.” So observes Justice Stevens, in a fascinating N.Y.T. book review on our “Broken System of Criminal Justice,” available here.



"My Mom is a Deputy Sheriff" from http://images7.cafepress.com/image/28626857_125x125.png

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org


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Case o' The Week: Ninth's Hurd Mentality - Good decision rejects use of post-Miranda Silence

"You have the right to remain silent. Your silence can and will be used against you at trial."

Count on the California Court of Appeal to rewrite the Miranda warnings and permit a defendant's silence to be used against him at trial as evidence of guilt. Count on Judge Beezer to set 'em straight. Hurd v. Terhune, 2010 WL 3293355 (9th Cir. Aug. 23, 2010), decision available here.

Players: Decision by Judge Beezer, joined by Judges Pregerson and Thompson.

Facts: Hurd’s wife, Bea, sought a divorce. Id. at *1. Bea was upstairs with Hurd when their son heard a shot. Id. Bea came down, crying, and collapsed; at the hospital she died of a single shot to her chest. Id. At his California court trial, Hurd testified that Bea was borrowing his gun and it accidentally went off when he showed her how to operate it. Id. at *2.

He had told the same account to police after being Mirandized. Id. The cops had then asked him to submit to a polygraph; Hurd refused. Id. The cops asked Hurd to demonstrate how the shooting occurred; he refused. Id. Before trial, Hurd moved to suppress his refusals to take a polygraph and to reenact the shooting. Id. After his motion was denied, the D.A. repeatedly referred to Hurd’s refusals as evidence as guilt at trial. Id. Hurd was convicted and sentenced to LWOP; his appeals were denied, as was his federal habeas in district court. Id. at *2.

Issue(s): “We first address Hurd’s argument that the state trial court improperly admitted as evidence his refusal to reenact the shooting in violation of his Fifth Amendment rights as determined by the Supreme Court in Miranda v. Arizona, . . . and Doyle v. Ohio.” Id. at *3.

Held: “Because the California courts’ application of Miranda and Doyle was unreasonable, we reverse the decision of the district court and direct that a writ of habeas corpus issue.” Id. at *1. “The California Court of Appeal’s Miranda and Doyle analysis is incorrect. The Supreme Court has clearly established that, after receiving Miranda warnings, a suspect may invoke his right to silence at any time during questioning and that his silence cannot be used against him at trial, even for impeachment.” Id. at *5. “Contrary to the conclusion of the California Court of Appeal, the right to silence is not an all or nothing proposition. A suspect may remain selectively silent by answering some questions and then refusing to answer others without taking the risk that his silence may be used against him at trial.” Id. at *6.

Of Note: What is “clearly established federal law” for the purpose of AEDPA review? Supreme Court decisions. But what is one to make of a wealth of federal circuit precedent dealing with the same issue presented by a habeas petition? That is “persuasive authority,” explains Judge Beezer. Id. at *6. It is one of the many inanities of AEDPA review that – like Lord Voldemort – circuit authority is the precedent that “must not be named.” Aware of that taboo, Judge Beezer tacks his list of circuit authority on the use of a suspect’s silence after concluding that Supreme Court law controls this habeas issue. Id. (discussing Ninth Circuit and other circuit authority).

How to Use: Hurd is a great opinion on the issue of post-Miranda silence. Judge Beezer carefully distinguishes Supreme Court authority that allows post-Miranda inconsistent statements to be used against a defendant. Id. at *5 (discussing Anderson). He also emphasizes that the protections of Miranda silence can apply to silence to specific questions: the right is not an “all or nothing proposition.” Id. at *6. Finally, he explains that a suspect who answers some questions may not have unambiguously asserted Miranda, but if the suspect later remains silent that silence is not then admissible. Id. at *6. Hurd will be a lead decision on several interesting corners of Miranda law; it is worth a close read.

For Further Reading: A week ago, in Rivera-Corona, Judge Berzon explained how to fire retained counsel and get a P.D.. See blog post here. Is that switch a good idea? That frequent debate is the subject of yet another recent study; Richard Hartley, Holly Miller and Cassia Spohn, Do you get what you pay for? Type of counsel and its effect on criminal court outcomes, discussed (with considerable skepticism) here.


Image of Ernesto Miranda from http://www.dominickrusso.com/

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org.

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