Friday, June 10, 2016

1.  United States v. Murphy, No. 15-50023 (6-9-16)(Block, Sr. D.J., with Clifton and Ikuta).  This appeal of tax and false claims convictions has an interesting "sovereign nation" issue.  The 9th affirmed the convictions for a slew of interfering with tax laws and false claims, but vacated the conviction of the count alleging presenting fictitious financial instruments.  The defendant had written out a promissory note, with a confusing legal justification, and submitted it to the Treasury, saying that it should be used to offset any claims.  In instructing the jury, the court failed to state an element: the financial instrument had to be issued "under the authority of the United States." This was plain error, given the element, and the fact that the instrument arguably was not issued by the United States. The count was remanded for a new trial or dismissal.

The decision is here:

2.  Goodrum v. Busby, No. 13-55010 (6-9-16)(Watford with M. Smith and Friedland).  The 9th reversed the dismissing of a petition.  The petition was not a "second or successor" petition and did not have to meet the requirements of  28 U.S.C. ยง 2244(b).  The petitioner had a petition pending, when he sought to amend by filing a second petition in the court of appeals (the practice in the state).  The 9th has held that a filing of a second petition while one was pending is taken to be an amendment of the pending one.  The rule is extended to filings in the court of appeals.  The petitioner identified what he is doing, and why, and attached the pending petition.

The decision is here:
3.  Runningeagle v. Ryan, No. 07-99026 (Wardlaw with Pregerson and Bea)(Note:  This is an Az FPD-CHU case).  The 9th affirms the district court's denial, on limited remand, of IAC claims brought under Martinez, 132 S.  Ct 1309 (2012).  The 9th held that the district court erred in finding that Martinez did not apply.  It does.  Martinez allows the petitioner to excuse procedural default if post-conviction counsel was ineffective.  Martinez requires that the state have a system of post-conviction that mandates IAC be brought in post-conviction proceedings and not on direct appeal.  It was error for the district court to conclude that petitioner could have raised IAC on direct appeal. The rules may not have expressly stated, but the procedure, as set up, required.  However, petitioner failed to demonstrate that the post-conviction counsel was in fact ineffective.



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