Thursday, October 06, 2005

US v. Brown, No. 03-10479 (10-4-05). We all see the pleas where the gov't promises to dismiss charges. Here, the defendant plead guilty to 44 counts and the gov't promised to dismiss the others (how many do they charge in the E.D. Ca.?) The gov't did in fact dismiss, but without explicitly stating it was with prejudice. The defendant seized on this as a breach of the plea, and thus voided the appeal waiver. The defendant appealed on Booker grounds and that the court abused its discretion in not continuing the sentencing. The 9th considered whether a dismissal with an explicit "with prejudice" was a material breach. The court noted that a dismissal without more was usually considered without prejudice, but the courts can give force to the intent of the parties, and the 9th found it clear that in these situations, the dismissal would be with prejudice. The gov't would be barred from bringing the counts back. Thus, since the dismissal was read "with prejudice," the plea was not breached, and the waiver was enforced, and the appeal dismissed.

Bonner v. Carey, No. 02-56022 (10-6-05). This is another "out of time, out of luck" habeas appeals. The petitioner filed several state petitions in the early 90's. He filed another in 1995 that was never acted on, but he did file a motion for rehearing that drew a response. The state trial court denied the petition on several grounds, the most relevant being that he could have raised the allegations in an earlier petition (IAC). The case then wended its way upwards. The 9th here holds that this pronouncement in a state court minute entry means that petitioner's petition was never properly filed in state court, and so time was not tolled under AEDPA, and he was out of luck. The 9th recognized the harshness of its ruling, but the Supremes in Pace v. DiGuglielmo, 125 S.Ct. 1807 (2005) control. Pace moreover overturns two possible 9th Cir. exceptions to the tolling, namely that "lack of diligence" in a pre-AEDPA delay was irrelevant to a post_AEDPA decision. Pace holds that "time limits," no matter their form, are filing conditions for AEDPA purposes. Under Pace, if the petition was untimely under California law, it was never properly filed. Likewise, if a pending case is deemed to be untimely by a state court, under Pace, the time that the state court was considering is not tolled. This case is remanded though for any possible claim of equitable tolling.

US v. Jensen, No. 04-30094 (10-6-05). The 9th affirms a conviction and sentence. The defendant was stopped for careless driving (75 mph in a 25 mph area) and was subsequently arrested. The arresting officer had inquired of a narc detective whether he wanted the defendant for anything. As it turned out, the narc detective had information from a CI that the defendant was carrying narcotics in the type of car, at the time, the CI said he was travelling. A narcotics dog also alerted. The 9th found that there was cause to stop him, and that the arrest was good, and that the probable cause to search the car was justified. The knowledge of the officers doesn't have to be personal, but can be collective, and the officer who stopped the defendant could rely upon the information of the narc detective in deciding to arrest him. The complexities of modern police investigations must rely upon the collective knowledge doctrine. Where officers are cooperating in an investigation, the knowledge of one is presumed to be shared by all. There was probable cause to ask for a search warrant for the car (where lots of pure meth was found). The defendant also had two prior drug felonies and was sentenced to life under 851. the 9th affirmed the sentence against due process and separation of powers challenges. The 9th relied upon its precedents in these decisions, and that the recent cases of Booker and Blakely didn't change this.


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