Tuesday, January 24, 2006

US v. Serna, No. 04-10597 (1-23-06). The 9th holds that possession of an assault weapon by a felon is NOT a "crime of violence." The 9th (Kozinski) had a weapon that arguably fell between regular firearms possession of which were not crimes of violence under the Guidelines and bad firearms (silences, sawed off shotguns) possession of which were crimes of violence. The 9th acknowledged that almost anything could be used violently (nail-clippers was one cited example), and that the firearms, although lethal and dangerous, are not by themselves inherently violent as defined under the Guidelines (risk or substantial risk of death or injury). The fact that assault weapons are no longer banned, along with Congress's indifference to assault weapons all over the place, convinced the 9th that the weapon in question here was more like the nonviolent firearms. Vacated and remanded.

Congrats to FPD Quin Denvir for the win. Quin has since retired, so it is a fitting last hurrah, or maybe a fitting salvo.

Young v. Runnels, No. 03-16859 (1-23-06). The 9th deals with whether a state lawyer subsequently disbarred after representation of petitioner is per se ineffective. The lawyer here was facing disciplinary proceedings for failure to communicate with clients, moral turpitude, dishonesty, and other irregularities. She also filled a law suit against the DA and others alleging that they were part of a pedophile ring. The lawsuit was deemed baseless. The petitioner argued that the framework for analysis was the Cronic precedent of essentially not having counsel (some acts so egregious that it was per se IAC). The state argued that Strickland applied. The 9th looked at Supreme Court precedence and concluded that Strickland bound the court. There was no prejudice here from the lawyer's representation. Nonetheless, Noonan, concurring, ruefully lamented how strange it was that the Court could conclude that a "fully licensed lawyer with her head full of fantasies and 'with complete lack of insight into the wrongfulness of her actions' was counsel enough to satisfy the Sixth Amendment!". The 9th upheld the district court's findings of no IAC.


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