Tuesday, October 06, 2015

Two opinions today -- an en banc decision holding that a California state convict exhausted his remedies in an appeal from a misdemeanor DUI conviction, and an immigration decision holding that possession of child pornography is not an aggravated felony.

1.  McMonagle v. Meyer, No. 12-15360 (Nguyen for the en banc panel) --- The en banc panel reversed a district court's denial of a California state convict's § 2254 petition, holding that he exhausted his state-court remedies from a misdemeanor conviction. The panel further granted him equitable tolling for relying on precedent that the en banc panel overruled in the course of explaining how he had exhausted his state-court remedies, and remanded the petition for consideration of the merits of the claims.
A California state jury convicted the petitioner of two DUI crimes -- driving while under the influence, and driving with a BAC level of .08% or greater.  The appellate division of the superior court reversed the second of these convictions on Confrontation Clause grounds, but affirmed the first.  He then asked the appellate division to certify the case for appeal to the California Court of Appeal, and when the appellate division denied certification he asked the Court of Appeal to transfer the case.  The Court of Appeal denied transfer.  Then he filed a state habeas petition with the California Supreme Court, which denied the petition.  The petitioner then filed a § 2254 petition, which the district court denied as untimely under AEDPA.  According to the district court, the conviction became final when the Court of Appeal denied the petitioner's transfer request, such that he should have then petitioned for a writ of certiorari from the U.S. Supreme Court.  He did not do so, and filed his § 2254 petition more than a year after his cert deadline expired.  A three-judge panel of the Ninth Circuit disagreed with the district court's timeliness ruling, and then the Ninth Circuit decided to rehear the case en banc.

After surveying California procedure for seeking appellate review of a misdemeanor conviction, the court held that the conviction became final for purposes of state law when the Court of Appeal denied the transfer request.  But in Larche v. Simons, 53 F.3d 1068 (9th Cir. 1995), the Ninth Circuit had held that the state habeas petition in the California Supreme Court was a required component of the state's established process of appellate review.  The Ninth Circuit held that this was incorrect in light of the California Supreme Court's decision in Marks v. Superior Court, 38 P.3d 512 (Cal. 2002).  This required the Ninth Circuit to overrule Larche, and hold that a California state misdemeanor convict exhausts his state-court remedies by seeking transfer with the appropriate division of the California Court of Appeal. 
Because the petitioner here was relying on Larche to exhaust his claims, the panel granted him equitable tolling of AEDPA's limitations period, and remanded the case for consideration of the merits of his claims.

The decision is here:

2.  Chavez-Solis v. Lynch, No. 11-73958 (Bybee with Fisher and Bea) --- The Ninth Circuit granted a petition for review of a removal order, holding that a conviction for possession of child pornography under Cal. Penal Code § 311.11(a) is not an aggravated felony under 8 U.S.C. § 1101(a)(43)(I), and thus that the petitioner was not removable based on his conviction of that crime.
For purposes of the categorical analysis, the relevant metric of comparison was the federal child-pornography statute, 18 U.S.C. § 2252(a)(4)(B).  The Ninth Circuit had previously held, in an unpublished decision, that California's statute was meaningfully identical to the federal one.  But "new arguments" led the court to reevaluate this decision.  For one thing, the California statute encompassed depictions of more kinds of sexual conduct than the federal statute, because California's statute punished depictions of any touching of a child on any part of the child's body.  The government had argued that this did not make the California statute overbroad, because the petitioner was required to show a realistic probability that the state statute would be applied to prosecute someone for conduct in the overbroad area.  The Ninth Circuit rejected this argument because the text of the state statute was clear, and so the reasonable-probability showing was unnecessary.  Moreover, California court decisions showed that the statute would be used to target conduct in the overbroad area.  And because California did not require a jury finding of a depiction of any particular type of sexual conduct in order to convict, the state statute was not divisible under Descamps, and thus the modified categorical approach was unavailable.

The decision is here:


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