Monday, July 20, 2015

This round of Ninth Circuit summaries includes (1) a victory for the Innocence Project on postconviction DNA testing, (2) a decision on the intent requirement for providing false information on a passport application, and (3) a victory for a California state prisoner seeking to appeal the denial of his habeas petition.
1.  United States v. Watson, No. 13-30084 (Kleinfeld with O'Scannlain and Berzon) --- The Ninth Circuit held that a defendant is entitled to postconviction DNA testing of evidence that could not be tested at the time of trial.  The defendant had been convicted of rape, but testimony at trial was equivocal as to who the perpetrator was (assuming there was a rape at all).  There was a DNA sample in the form of semen on the victim's underwear, but it was too small to test at the time of trial in 2006.  Now it can be tested, so the defendant brought a motion for postconviction DNA testing.  The district court denied the motion because it was presumptively untimely, having been brought more than three years after conviction.  But the presumption is rebuttable in the face of newly discovered DNA evidence, and the Ninth Circuit held that "newly discovered" in this context means DNA evidence, the import of which is newly discovered in light of technological advances.  The court thus reversed the denial of the motion for DNA testing and remanded for further proceedings.
The decision is here:

2.  United States v. Ye, No. 12-10576 (Friedland with Clifton and NR Smith) --- The Ninth Circuit held that providing false information on a passport application, in violation of 18 U.S.C. § 1542, is not a specific-intent crime, and thus affirmed a conviction because the jury instructions were proper.

The defendant, a Chinese citizen, traveled to Saipan with her husband and then overstayed her visa in order to give birth to her second child on U.S. soil and presumably to avoid the Chinese one-child policy.  The child was then entitled to a U.S. passport, but the law required both parents either to ask for it in person, or one parent to provide the notarized statement of consent from the other parent.  She appeared at a passport office with her brother-in-law, who pretended to be the child's father.  Charged with making a false statement on a passport application, she argued at trial that this was a specific-intent crime and that the jury should be required to find a specific intent to violate the immigration laws of the United States.  The trial court refused this instruction, and the Ninth Circuit affirmed.  Because the Supreme Court had held that the related crime of using a passport obtained by a false statement did not require specific intent, see Browder v. United States, 312 U.S. 335 (1941), the Ninth Circuit held that this crime also did not require specific intent to violate the immigration laws.

The decision is here:

3.  Foley v. Biter, No. 12-17724 (Christen with Schroeder and DW Nelson) --- The Ninth Circuit reversed the denial of a California state prisoner's motion for relief from judgment under Rule 60(b)(6), holding that counsel had abandoned the petitioner, thereby preventing a timely appeal from the denial of his § 2254 habeas petition.

The petitioner is serving a life sentence without the possibility of parole for murder, imposed by a California state court.  He filed a petition for a writ of habeas corpus through counsel, but counsel forgot that he represented the petitioner.  The district court denied the petition, but counsel did not notify the petitioner.  Six years after the denial and nine years after filing the petition, the petitioner inquired of the status of his case, both with the court and with counsel.  Counsel provided a declaration explaining that he had forgotten about his representation of the petitioner and therefore did not notify him about the denial, which the petitioner submitted to the district court in conjunction with a request to revive the case so that he could appeal.  The district court found no attorney abandonment and denied the motion, but the Ninth Circuit reversed.  The declaration was adequate proof that counsel had abandoned the petitioner.  And once he learned that his petition was denied, the petitioner had made reasonable efforts to determine what relief was available to him and actually sought that relief.  The district court thus abused its discretion to find that the petitioner had not acted within a "reasonable time" under Rule 60(b)(6).

The decision is here:


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