Friday, December 30, 2005

Espinoza-Matthews, No. 04-56805 (12-28-05). The 9th finds equitable tolling in this habeas case. The petitioner was convicted of state crimes. He pursued state appeals and post-conviction. When time came for his federal petition, he found himself in state admin. segregation because he was assaulted by another prisoner. He made efforts to get his legal materials, but the prison officials foot-dragged and stonewalled, basically saying that he would get the materials when he was released from admin. seg. He finally filed his petition but in the wrong court. If he is given the benefit of the "mailbox" rule, he'd still be 82 days over the statute; if not, he'd be 120+ days. It doesn't matter, though, because the 9th finds that equitable tolling applies. Petitioner made numerous efforts to obtain his file, and the intransigence of the prison prevented him from getting it. He needed the file to file, and his prevention was beyond his control.

US v. Fifield, No. 04-30299 (12-30-05). The 9th ventures into 5G1.3 jurisprudence, and when state and federal sentences run concurrent. The posture here is more procedural as the issues raised relate to procedure the court must follow. The defendant was on state probation for assault and possession when he was busted with guns. His state sentence was revoked, and he was convicted of being a felon in possession federally, and that sentence ran consecutive to the state. Defendant argued that the court had to give notice under Fed R Crim P 32 of the running of a federal sentence consecutively, and must state the reasons on the record. The 9th held that the guidelines, specifically 5G1.3(c) allow a sentence to be run either concurrently or consecutively, and that discretion doesn't amount to a departure, requiring notice under Burns, when it runs consecutive. There is no explicit or implicit requirement in Rule 32. In discussing 5G1.3, the 9th finds this falls under (c), discretionary, and that the conduct was not relevant conduct or accounted for in the state matter. The 9th also parsed the statement of reasons given by the court, and held that the reasons proffered for the sentence were sufficient, with reference to the state judge giving the defendant a prior break, and that this sentence addresses the 3553 factors.

US v. Southwell, No. 04-30521 (12-30-05). This is an important decision regarding jury instructions and affirmative defenses. The 9th (Kozinski) holds that a jury must unanimously reject an affirmative defense, in this case insanity. The defendant was charged with arson. he raised insanity. The court instructed on the charge, and on insanity. During deliberations, the jury asked a question whether they could convict if they all found him guilty of the charge but were not unanimous on sanity. The court refused (!) to answer, referring the jury back to the instructions. The 9th found that the instructions were unclear on what to do, and that there was, strangely, no controlling precedent. The Supremes seemed split on this. The 9th reviewed various state courts, and concluded that the requirement was that an affirmative defense had to be unanimously rejected. The jury couldn't find guilt on the element, and then a split on the affirmative resulted in a conviction. A jury united on guilt but divided on an affirmative defense is hung. A very nice opinion.
Congrats to AFPD Kim Deater of the E.D. Wa.

Motley v. Parks, No. 02-56648 (12-30-05)(en banc). This is a 1983 action. The 9th holds that"before conducting a warrantless search pursuant to a properly imposed parole condition, law enforcement officers must have probable cause that the parolee resides at the house to be searched." The 9th found such probable cause here, and affirmed the qualified immunity. Dissenting, Reinhardt and others would find there was no probable cause. The issue of whether the officers also need particularized suspicion of wrong-doing before conducting a search was sidestepped because the Supremes granted cert on that in another case. The 9th found for this case that the issue was not clearly established.


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