Monday, April 04, 2011

U.S. vs. Fasthorse, No. 10-30093 (4-1-11) (M. Smith with Graeber and Fisher). The defendant appeals a conviction for sexual abuse under 18 U.S.C. 2242(2)(B). The defendant argues there is insufficient evidence and the sentence of 130 months is unreasonable. The 9th affirms both conviction and sentence. The victim in the case admits drinking and smoking medical marijuana during the night. When she woke up, she testified, the defendant was on top of her, having sex. The defendant argued consent. The evidence revolved around credibility, and the jury found the victim credible. "Waking up," reasoned the 9th, implies no consent. The sentence was within the guidelines, and the court supported the sentence with appropriate reasons. Cooper v. Neven, No. 08-16973 (4-1-11) (D. Nelson with Hug and McKeown). The 9th considers this habeas appeal. The 9th remands the Brady and Napue claims for consideration because the denial was not on independent state grounds, but on federal. The other claims were denied. Wilson v. Knowles, No. 07-17318 (4-1-11) (Noonan with Silverman; dissent by Kozinski). This is an amended opinion regarding an Apprendi claim. The state court found facts as to a prior state conviction related to injury. The 9th holds this violates Apprendi. Kozinski's dissent goes to the lack of a Supreme Court case precisely on point as to assessing facts in the prior state conviction. He would find that AEDPA requires deference, and so would deny the claim.


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