Thursday, July 19, 2018

Today the Ninth Circuit affirmed the conviction of a federal prisoner for being a felon in possession of a firearm and, over the dissent of a visiting district judge, affirmed the dismissal of a Nevada state prisoner's counseled, amended federal habeas petition as untimely. 

1. United States v. Barnes, No. 16-30203 (Paez with Gould and Christen) --- The Ninth Circuit affirmed a conviction for being a felon in possession of a firearm, holding that the good-faith exception to the exclusionary rule applied and did not require suppression of evidence found in a search incident to arrest pursuant to an arrest warrant, and that the trial judge properly declined to instruct the jury on a necessity defense because the defendant did not produce sufficient evidence to support it. 

The defenant and his son were both wanted men -- the son had an outstanding felony arrest warrant, while the defendant had a misdemeanor warrant out for failing to appear at a hearing on a traffic citation. Yakima police spotted the defendant and arrested him believing that he had the felony arrest warrant, but in fact the misdemeanor arrest warrant was the true basis for the arrest. The defendant moved to suppress, arguing that the misdemeanor arrest warrant was invalid because a city magistrate issued it without examining whether there was probable cause to believe that he had committed a crime. The district court held an evidentiary hearing, and an official at the municipal court testified that the warrant had issued without a probable-cause examination. But the Ninth Circuit upheld the denial of the motion to suppress, because the officers acted in good-faith reliance on the issuance of the warrant because they could not have reasonably known that the judge did not properly issue the warrant. 

The defendant asserted that he had taken possession of the gun in order to keep it away from his son's small children, whom he was taking care of because his son was addicted to methamphetamine. The judge declined to instruct the jury about a necessity defense under these circumstances because the defendant did not assert that there was an immediate threat of death or bodily injury to his grandchildren. The Ninth Circuit agreed with the district court's assessment of the defendant's proffer, and upheld the decision not to give an instruction on the necessity defense. 

The decision is here: 


2. Ross v. Williams, No. 16-16533 (Ikuta with M. Smith; dissent by Bates (D.D.C.)) --- A divided panel of the Ninth Circuit affirmed the dismissal of a Nevada state prisoner's counseled amended petition for a writ of habeas corpus, holding that the amended petition did not relate back to the filing date of the pro se petition because the pro se petition did not expressly incorporate by reference material that the petitioner attached to the petition he filed using the district court's standard form. Under the habeas rules, it was incumbent on him to expressly incorporate the attachments by reference in his pro se filings, because the rules allow the courts to limit consideration of attachments if the pro se litigant fails to expressly do that. The prisoner did not follow the instructions on the form or in the habeas rules that required him to state the facts that support his claims or expressly incorporate them by reference. The panel rejected the dissent's suggestion that a liberal construction of his pro se filings required them to read the attachments to discover the factual basis of his pro se claims, and then allow the counseled amendment to expand on those facts and have the amended petition relate back under Rule 15 of the Federal Rules of Civil Procedure. 

Kudos to Assistant Federal Public Defender Jonathan Kirschbaum for a hard-fought appeal. 

The decision is here:


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