Wednesday, May 16, 2012

Sexton v. Cozner, No. 10-35055 (5-13-12) (Tallman with Tashima and Ikuta).
The 9th affirms the denial of petitioner's claims.  The petitioner plead to two counts of intentional murder, rather than aggravated murder, for which he received two terms, running consecutive, of at least 25 years each (a total of 50).  The COA allowed petitioner to argue that counsel committed IAC in his plea and sentence.  The 9th held that counsel was not ineffective in his advice regarding the plea, and the plea colloquy established a knowing plea.  The petitioner knew the sentences could be run consecutive or concurrently.  Counsel's argument at sentencing focusing on prior childhood abuse at the hands of a relative was strategic, even if it upset the family.  The 9th also had an opportunity to consider the recent Martinez case concerning IAC of PCR counsel.  The 9th broadened the COA to include a claim of IAC against PCR counsel, where petitioner asked for a limited remand to establish such ineffectiveness.  The 9th denied the request, although admitting that in other instances, if the record is bare as to the actions of PCR counsel, a remand could be warranted.  Here, PCR counsel could not be considered ineffective for failing to raise an IAC claim against trial counsel, given that the 9th found that any such claim would be meritless.

The issuance of any opinion on a Sunday is unusual.  The issuance of any non-capital, or non-emergency opinion, is even more so.  Yet, strangely, this non-capital non-emergency opinion was filed Sunday.  The fact that it was filed this past Sunday, May 13th, should be noted given the circumstances of petitioner's offenses.  The petitioner, when he was 17, murdered his mother and father.  Sunday was Mother's Day.  A strange macabre coincidence?


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