Tuesday, May 22, 2007

US v. Meiners, No. 06-30389 (5-21-07). The 9th (per curiam) considers the 8th Amendment's prohibition against cruel and unusual punishment when it comes to a 15-year sentence for possession, distribution, and advertising of child pornography. Unsurprisingly, the 9th finds that the sentence is not "grossly disproportionate" to the gravity of the offense. The 9th does not even clear the first hurdle of the analysis, which is a threshold comparison of the crime and sentence imposed. Given the harm inflicted, the sentence does not strike the court as grossly disproportionate, and given the precedent in three-strike and other Eighth Amendment cases, this challenges fails.

US v. Orman, No. 06-10398 (5-22-07). The Fourth Amendment is sold out at the mall. Really. The defendant (a prohibited possessor) was seen by a public utility employee placing a gun in his boot before entering a mall. Security was alerted, which included an off-duty police officer moonlighting as security. He approached the defendant and asked him if he had a gun. The defendant said "yes." The officer did not see the gun but saw a bulge in the defendant's shirt, asked if that was the gun, and when the defendant again said "yes," the officer took the gun. Other officers had come, but stood away. The officer asked if they could continue to speak in a security office, where they went to. The defendant explained that the gun belonged to his wife, and they did not want to leave it in the car. The district court denied suppression and the 9th (Callahan joined by Goodwin and D. Nelson). The 9th explained that Terry is really a two-prong approach: stopping for reasonable suspicion and then a pat-down. Here, the stop was supported both by reasonable suspicion and by consent. The seizure of the gun was lawful for safety purposes.

Foote v. Del Papa, No. 06-15094 (5-22-07). The 9th considers a state petitioner arguing IAC because the court appointed the public defender's office on appeal after the public defender had been relieved of representation pretrial because of "irreconcilable conflicts." Petitioner argues that the Sixth Amendment requires conflict-free appointed appellate counsel. Under AEDPA, the 9th (Wallace joined by Thomas and Ezra) hold that there was no Supreme Court case right on point. Sure, they reason, an "irreconcilable conflict" between trial counsel and defendant may entitle defendant to a new counsel, see US v. Moore, 159 F.3d 1154, 1158 (9th Cir. 1998), but there is no Supreme Court case that applies this to appellate counsel. As such, the claim fails. This is not a case where the petitioner is essentially without counsel or where counsel is conflicted (the Sullivan exception) because of competing interests and this adversely affected performance. As such, the state supreme court did not unreasonably apply federal law.

(Ed note: This "Foote-note" to the Sixth Amendment seems too narrow as it is not a large step from trial counsel to appellate counsel. The record seems clear as to the antipathy between petitioner and the public defender's office, and one wonders what the petitioner would have to show. There is also no mention of any ethical obligations toward such representation.)


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