Friday, July 14, 2017

Grant v. Swarthout, No. 13-55584 (7-7-17)(Reinhardt w/Tashima & Paez). This is an equitable tolling case.  Do not ask for whom the petition tolls, it tolls for thee (if prevented from filing by the prison's delay).  In this matter, as petitioner's one year AEDPA statute neared its running, he asked for forms to file his federal petition. The prison delayed, and he was 20 days out.  The State then said that he should have been more diligent.  The 9th said he was diligent, and that the petitioner had the full year, not part of it, or most of it.  The petition should be regarded as timely due to tolling.

The decision is here:

US v. Chavez-Cuevas, No. 15-50480. (7-10-17)(Bea w/Callahan & Ikuta). The 9th resolutely holds that California robbery (211) is a "crime of violence" under the categorical approach of Deschamps and Mathis.  The 9th rejects the challenge to prior precedent, Becerril-Lopez, which had so held, reasoning that its finding of a COV is not contrary to Deschamps and Mathis. Rather, the 9th explains, although the state robbery statute is broader than a generic robbery, the offense it also encompasses is extortion, which is itself a COV. Any way you cut it, a COV occurred.

The 9th also deals with what happens when a district court fails to "accept" the plea agreement. The colloquy was held before a magistrate, the recommendation made to accept, and then at sentencing, everything preceded as usual except the plea agreement was never accepted.  Under a plain error analysis, even if there was error, the 9th finds it unclear how the court's failure affected substantive rights or was especially grave. Everyone acted as if it was accepted. 

The decision is here:


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