Thursday, March 08, 2007

Irons v. Carey, No. 05-15275 (3-6-07). The 9th reverses a district court's granting of habeas relief. The district court had found that the state denied parole for the petitioner, serving a sentence for second degree murder, on insufficient grounds. The 9th (a reluctant Reinhardt concurred reluctantly by Noonan and Fernandez) hold that the state supreme court had ruled that the nature of the offense (cruelty) could be a basis for denying parole, even when all the other rehabilitative factors were positive. This factor was upheld by the 9th in Sass as not violating due process. The 9th felt that it was bound and so reversed relief under AEDPA as there was an adequate state ground. All the judges filed concurrences in which AEDPA is decried. Noonan especially writes a jeremiad against congressional intent to act as judges under the structures. he is bound by precedent and the court's rulings, so he can only gnash his teeth. Reinhardt and Fernandez also weigh in.

US v. Baza-Martinez, No. 05-10282 (3-6-07). The 9th denies an en banc and rehearing petition challenging the panel's decision holding, under a categorical analysis, that a North Carolina felony for "taking indecent liberties with children" is not a crime of violence. In a spirited dissent, Graber joined by Kozinski, O'Scannlain, Gould, Tallman, Bybee, Callahan, and Bea (it was a close call) rail against the decision, arguing that it goes against precedent, common sense, common law, other circuits, and the Supremes. The dissenters chide the majority for following a state appellate decision a decade old that focuses on the victim's impact and not the offender's intent. (The irony of course is that this following a state's "reasonable" decision).

Hoffman v. Arave, No. 02-99004 (3-6-07). The 9th denies a petition for rehearing and en banc challenging a panel's holding of IAC. Bea dissents, joined by Kozinski, O'Scannlain, Kleinfeld, Tallman, Bybee and Callahan, arguing that the panel's decision "has effectively written out of law the requirement that prejudice be pleaded and proved to meet the test for ineffective assistance of counsel." The panel had found IAC because counsel had advised against a life-saving plea agreement because counsel thought Idaho's death penalty scheme would be found unconstitutional because Arizona's had been found constitutionally infirm by the 9th. A year later judge sentencing was upheld by the Supremes in Walton (1990). (And then, over a decade later, and many executions later, Ring struck down Walton). The dissenters consider counsel's advice to take the risk not deficient nor prejudicial.

US v. Llewellyn, No. 06-30185 (3-7-07). The 9th (McKeown joined by B. Fletcher and Scwarzer) affirm a conviction for assault under an attempted battery theory. The defendant was at a VA hospital. He accused another patient of being a "snitch" (he had supposedly turned him in to a counselor because of a fear that he might relapse into drug abuse). The defendant spat at the victim patient. The government of course decided to prosecute and did so under the special maritime/territorial jurisdiction, and used 113(a)(5) as the offense of simple assault. Defendant was found guilty at a bench trial. On appeal, the 9th held that spitting was indeed a form of simple assault because it was a form of attempted battery. The focus is on the wilfulness of the defendant to inflict injury, or offensive touching, including spittle. Spitting is an offensive touching and therefore falls under the ambit of assault.

Sarausad v. Porter, No. 05-35062 (3-7-07). The 9th grants relief to petitioner because the state (Washington) instruction on accomplice liability was ambiguous, and this with other factors unconstitutionally relied the state of its burden. W. Fletcher wrote the majority, joined by Reinhardt. Reinhardt dissented though on the ground that the evidence of guilt itself was insufficient. Bybee dissents from the ambiguous instruction, railing against the majority for spinning the facts and not relying upon the state's interpretation of its instructions. (Ah, but see Baza-Martinez above when Bybee dissent from reliance on a state decision).


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