Wednesday, July 31, 2019

1. US v. Corrals-Vazquez, No. 18-50206 (7-24-19)(Bybee w/Wardlaw; concurrence by Bybee; dissent by Fernandez).  In reversing a 1325(a)(2) conviction  — eluding examination or inspection by immigration officials —the 9th holds that the government must prove that the eluding occurred at an open POE. Otherwise, the conduct is illegal entry under 1325(a)(1). The majority examines the statutory text, looks at other conduct (i.e. (a)(1)), cracks open the dictionary (eluding), and reaches the conclusion that (a)(2) can only occur at a POE.  The majority does not state what type of slinking or avoidance is required for eluding.

Concurring, Bybee expresses sympathy for the prosecution. He decries the “mess” of 1325 jurisprudence. He uses the concurrence to go through “official restraint” and “attempts” and some strange scenarios. Here though the statute is what it is.

To Fernandez, dissenting, the statute is what it is, too. However, it is not that confusing nor ambiguous. He argues that it is not uncommon for Congress to double book or be redundant. He finds no requirement that the eluding take place at a POE.

Congrats to Doug Keller, Federal Defenders of San Diego, for this tremendous and far reaching victory. 

This calls into question many Operation Streamline convictions. It also raises questions of past convictions for future prosecutions. Interesting times ahead.

The link to the case is here:

2. Djerf v. Ryan, No. 08-99027 (McKeown w/Gould & Ikuta). Note: This is an Az CHU case. The 9th affirms dismissal of this capital 2254 petition. The 9th found no IAC. The issue was that the petitioner represented himself in guilt/innocence. The 9th found no IAC in counsels’ representation that “forced” such representation; nor was there error in allowing it. Counsel represented petitioner at sentencing, and there was no IAC in presenting mitigation. Any error by the Az Supreme Court in requiring a nexus for mitigation was harmless. This was a tough heart wrenching case, with multiple family deaths.

The decision is here:


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