Thursday, February 01, 2007

US v. Daane, No. 05-50282 (2-1-07). "Its my money and I want it back" is a request that, in various forms, is made frequently in person, over phones, via the internet, and in lawyers' letters. Taking the money, if it is indeed yours, is not theft but can be considered the "claim of right" defense. Unfortunately for the defendants here, using force when making such claims, and having that force involve guns, threats of physical harm, and chases, prevents the validity of the claim, and, in context here, allows the court to REJECT the JURY INSTRUCTION for such a claim. Such a claim here was not supported by law or facts.

Butz v. Mendoza-Powers, No. 06-71137 (2-1-07). Dismissal of a petition for failure to pay filing fees or comply with the court's orders is not a ruling on the merits, and a Rule 60(b) motion challenging the dismissal is not treated as a second or successive petition.

Edwards v. LaMarque, No. 04-55752 (2-1-07)(en banc). The 9th, sitting en banc, reverses a district court's finding of IAC. The issue revolves around whether counsel's asking questions of the petitioner that waived his marital privilege was ineffective. The questions focused on conversations about a killing, to the effect that "you don't have to worry about him again." The district court found that counsel's questions about conversations damaged the petitioner, served no purpose, could and should have been avoided, and were prejudicial. The en banc court, adopting the deferential standard of review under AEDPA to state findings, held that it was a tough case, and that counsel was trying to walk a fine line, and so there were tactical and strategic reasons for the line of questioning. The court (Hawkins) stressed that the review is not de novo, but whether the state court's holding was reasonable. Graber concurred in the result. She agreed that counsel blundered with his understanding of the marital privilege, but sided with the majority because of the deferential standard. Dissenting, Fisher, joined by 4 others, vigorously argued that trial counsel was totally inept, made elementary evidence errors, had no idea of the scope of the marital privilege, and his ineffectiveness undercut any supposed tactical decisions. The dissent would find the state court's affirmance objectively unreasonable.


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