Friday, September 22, 2006

King v. LaMarque, No. 05-15757 (9-20-06). This is a new opinion, the old one -- filed July 26, 2006 -- was withdrawn. Petitioner's challenge was dismissed as being untimely (there was a substantial delay in state court). The 9th recognized that the state rule barring challenges filed after "substantial delay" was neither firmly established nor consistently applied. The petitioner here contests the state rule, but does not argue that the rule is still being applied too uncertainly. The 9th though holds that it is the state's burden to prove that the rule is being consistently applied. If the state shows that the rule is being consistently applied, then the burden shifts back to petitioner. Petitioner meets his burden here by simply challenging the rule. On remand, the gov't must show that the procedural rules regarding "substantial delay" are being applied consistently in the noncapital context.

US v. Durham, No. 05-30403 (9-22-06). Ah, the joys of parenthood. One gets to pick baby food, among other things, for the toddler, and to make the choice between strained peas, oatmeal, and peaches. On the other hand, there are those that, such as the defendant here, who apparently decided it was okay to introduce the 18 mos. old child to pot. A neighbor witnesses it, was appalled, and became the key witness in a prosecution for distributing marijuana to someone under 21. The 9th found there was sufficient evidence, and that a lay person could testify as to what the drug was. The 9th did vacate the 5 year sentence. The defendant argued that because the drug was distributed without remuneration, and because ti was a small amount, the max was one year, and it was doubled because the defendant was older than 18, which meant two years. the 9th agreed, rejecting the gov't's strained attempt to limit incorporation 21:859 into 21:841. Thus, the defendant is only in "time-out" for two years and not five.
Congrats to AFPD Steve Babcock of the D. Montana.

US v. Castillo, No. 05-30401 (9-22-06). The defendant entered an unconditional guilty plea to being an illegal alien in possession of a firearm. . He then tried to appeal the denial of his suppression motion and a due process motion for delay between the discovery of the firearm and prosecution. The 9th (Beezer) dismissed for lack of jurisdiction, because an unconditional guilty plea constitutes a waiver of the right to appeal all nonjurisdictional antecedent issues, constitutional and otherwise. US v. Lopez-Armenta, 400 F.3d 1173 (9th Cir. 2005). The 9th regards this as jurisdictional. An unconditional guilty plea jurisdictionally bars all but jurisdictional appeals. It doesn't matter if the gov't doesn't raise waiver, and indeed responds on the merits. The jurisdictional bar is not waiveable. Wait, Bybee writes in dissent, the 9th's precedent seem to allow the gov't to waive waiver, and to reach the merits. If the majority wants to raise the jurisdictional bar in the face of the gov't's waiver, it should go en banc. Still, as to the merits, the defendant loses.


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