Wednesday, February 09, 2022

 US v. Schlenker, No. 20-30141 (2-1-22)(Paez w/M. Smith & Nguyen).

Keith Hilzendeger provided this blurb:  The defendant here pleaded guilty to second-degree murder and a § 924(c) count in 2016.  After the Ninth Circuit held that second-degree murder wasn’t a crime of violence, he sought a declaration from the court that filing a § 2255 motion to challenge the § 924(c) conviction wouldn’t be a breach of the plea agreement.  The district court dismissed the declaration for lack of jurisdiction under the Declaratory Judgments Act.  The Ninth Circuit affirmed, because the declaratory judgment action was just an end-run around the § 2255 process.  Moral of the story here – if you want to know if certain litigation will breach the plea agreement, you have to take the risk and start that litigation. 

A hard-fought battle by Alan Zarky, AFPD in Tacoma.


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