Friday, May 25, 2012

Nitschke, No. 10-36121 (5-24-12)(Paez with Fisher and Clifton).
The 9th affirmed the denial of petitioner's claim for habeas relief under Apprendi.  The petitioner failed to preserve the Apprendi issue in his sentencing for manslaughter, the maximum sentence of which was enhanced to 30 years (which he got) for being a dangerous offender.  The state courts held that the claim was procedurally barred, and was not plain error.  The 9th defers to the state, finding no interwoven with federal law.  The claim was procedurally defaulted for federal habeas review.

Fenebock v. Dept. of Corrections, No. 11-15880 (Graber with Schroeder and O'Scannlain).
This petition concerns issues arising from the state's primary witness to a murder:  a juvenile.  After the murder, the child was taken into CPS custody.  Prior to trial, the defense did not have access to him.  Moreover, in trial preparation, a social worker warned the juvenile about the tricks defense lawyers play and how they are nasty.   Then, at trial, the time for cross-examination was limited.  In considering these issues, the 9th denies relief.  The 9th holds that there was no absolute right to pretrial access to the witness.  There was also no prosecutorial misconduct for the acts of another government agency charged with acting in the juvenile's best interests.  Finally, the limitation of cross-examination was permissible and affected no rights.


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