Washington State Law
Washington State Supreme Court:
State v. Hager: The Court reversed a Court of Appeals ruling which concluded that a detective’s statement during trial on Mr. Hager’s first degree child rape charge that Mr. Hager was “evasive” infringed upon Mr. Hager’s right to self-incrimination. The Court found that the statement did not violate that right. The Court agreed that the statement was improper but found that, to the extent that the comment invaded the province of the jury, it was rectified by the trial court’s prompt curative instruction. Therefore, contrary to the decision of the Court of Appeals, the trial court’s denial of Mr. Hager’s motion for a mistrial was not in error. http://www.courts.wa.gov/opinions/pdf/837171.opn.pdf
In his dissent, Justice Sanders noted that precedent dictates that opinion testimony regarding a defendant’s veracity is unfairly prejudicial to the defendant because it invades the exclusive province of the jury. While the majority had conceded the impropriety of the testimony, the dissent disagreed that the testimony did not violate Mr. Hager’s right to a fair trial. The dissent found the majority holding that the curative instruction was sufficient to preserve Mr. Hager’s right to a fair trial problematic on two fronts. First, contrary to the majority holding, the comment should have been presumed prejudicial because the majority did not conclude that it could not have rationally affected the verdict, as required under pertinent case law. Second, the dissent pointed out that the curative instruction may not have been truly curative, as the jury may have interpreted the comment as a description of behavior rather than an opinion of credibility, and thus may have taken it into account in their final verdict. http://www.courts.wa.gov/opinions/pdf/837171.no1.pdf
Division One Court of Appeals:
Detention of Berry: In this partially published opinion, the Court rejected Mr. Berry’s challenge to his commitment as a sexually violent predator on the grounds that an expert’s testimony was admitted into trial without a prior Frye hearing. The Court found that the evidence implicated no novel scientific procedure or principle, and therefore no Frye hearing was required. In the unpublished part of the opinion, the Court rejected Mr. Berry’s argument that he had an irreconcilable conflict with his assigned counsel, and substitute counsel should have been assigned. http://www.courts.wa.gov/opinions/pdf/64226-0.pub.doc.pdf
Division Two Court of Appeals:
Personal Restraint Petition of Monschke: Mr. Monschke asked the Court to order a new trial or a reference hearing regarding his conviction for aggravated first degree murder. In support of his petition, Mr. Monschke argued that 1) his trial counsel were ineffective when they did not do a proper investigation or pretrial preparation of his defense expert witness who, in testifying, undermined key elements of Mr. Monschke's defense and (2) it was prosecutorial misconduct for the State to reach a plea agreement with Mr. Monschke's codefendant Tristan Frye based on a personal friendship between the elected prosecutor and Mr. Frye's defense attorney and to allow Mr. Frye to testify against him, knowing that she would commit perjury. The court found that Mr. Monschke failed to establish prejudice arising from constitutional error, a fundamental defect which inherently results in a complete miscarriage of justice or the existence of material disputed issues of fact, and denied his personal restraint petition. http://www.courts.wa.gov/opinions/pdf/38365-9.11.cor.doc.pdf
Detention of Durbin: The Court affirmed Mr. Durbin’s commitment as a sexually violent predator, disagreeing with his contentions that (1) the State had no authority under former RCW 71.09.030 (2008) to file an SVP petition against him in Clark County because he had no Washington convictions for sexually violent crimes; (2) the current version of RCW 71.09.030, Laws of 2009, ch. 409, § 3, cannot be applied retroactively to justify filing the State's petition in Clark County; (3) the trial court erred when it determined that the acts underlying his Clark County conviction, for which he was incarcerated when the State filed the SVP petition, would have qualified as a recent overt act because the acts were over five years old by the time the State filed its petition in Clark County; and (4) the State did not have jurisdiction to file an SVP petition in Clark County because he had been unlawfully confined under an incorrectly filed petition in Thurston County. http://www.courts.wa.gov/opinions/pdf/39454-5.11.doc.pdf
State v. Davis: The Court reversed the trial court’s order denying him credit for time served while serving part of a Drug Offender Sentencing Alternative (DOSA) sentence. The Court held that the trial court erred in modifying his judgment and sentence to strike the DOSA language after he was administratively terminated from DOSA by the Washington State Department of Corrections, finding that the modification was not a clerical change, as the intention of the parties and the trial court had originally been to provide for a DOSA sentence. The Court reasoned that the revocation of the DOSA sentence court not have been a factor in the trial court’s initial sentencing decision, and therefore striking the DOSA language four years later could not be found to be a correction of a clerical error. As the change likely misled the DOC as to the amount of time Mr. Davis should have remained in custody, the language should not have been removed, and Mr. Davis should have been given credit for the time he already served on the DOSA sentence. http://www.courts.wa.gov/opinions/pdf/40240-8.11.doc.pdf
Division Three Court of Appeals:
State v. Veliz: Mr. Veliz appealed his conviction for custodial interference in the first degree after taking his four-year-old daughter out of the country for four months in violation of his wife’s rights under a protection order. Mr. Veliz argued that the protection order did not constitute a court-ordered parenting plan within the meaning of the felony custodial interference statute, that even if such an order did in fact constitute a court-ordered parenting plan, the order was improperly completed and could not support the conviction, and that the evidence was insufficient to convict him of the offense during the period identified in the information. Mr. Veliz also argued that the trial court committed reversible error in admitting irrelevant and unduly prejudicial evidence. The Court held that the felony custodial interference statute encompasses any valid court order that establishes a minor child’s parents’ rights to residential placement and/or visitation, including the protection order issued in this case. Therefore, the Court found the evidence, based on that order, was sufficient to establish that Mr. Veliz committed the offense during the charging period, and found that the trial court did not abuse its discretion in admitting the challenged evidence of Mr. Veliz’ use of an alias while he was in flight with this child. http://www.courts.wa.gov/opinions/pdf/284956.opn.doc.pdf
State v. Yallup: The Court affirmed Mr. Yallup’s conviction for felony DUI, finding that the State is allowed to enforce implied consent laws against an enrolled member of the Yakama Nation driving on state highways on the reservation. The Court reasoned that the implied consent statute is a primarily criminal statute rather than a civil regulatory statute, and noted that the right to travel guaranteed by the treaty with the Yakama Nation did not exempt Mr. Yallup from the criminal statutes governing use of the roadways, or from the licensing and non-impaired driving requirements under state law. Therefore, the Court concluded, the treaty did not bar the instant prosecution. http://www.courts.wa.gov/opinions/pdf/280403.opn.doc.pdf
State v. Michael: The Court reversed one count of unlawful firearm possession and affirmed a second count of unlawful firearm possession, and two misdemeanor counts. The first charge was reversed on the agreement of the parties that the count was mischarged. The Court affirmed the remaining counts, disagreeing with Mr. Michael’s claim that his trial attorney provided ineffective assistance, finding that the claim was based on counsel’s failure to seek a jury instruction that had never before been applied in the context of an unwitting possession defense, and was a trial tactic and not ineffective assistance. http://www.courts.wa.gov/opinions/pdf/288773.opn.doc.pdf
Federal Law
Ninth Circuit Court of Appeals:
United States v. Kohring: The Court vacated and remanded for a new trial three public corruption charges against Mr. Kohring. The Court concluded that the government had breached its disclosure obligations under Brady v. Maryland and Giglio v. United States in failing to disclose favorable and material evidence to Mr. Kohring. Mr. Kohring, a former member of the Alaska State House of Representatives, was convicted on three counts of public corruption felonies based on allegations that had taken money from Bill Allen of VECO Corporation in exchange for legislative acts benefitting VECO. After conviction and on remand to the district court, the government disclosed, for the first time, several thousand pages of documents, including “FBI 302 reports,” undated and dated handwritten notes from interviews with Mr. Allen and Rick Smith, another VECO executive, e-mails, various memoranda, and police reports. Specifically, the newly-disclosed information included: (1) evidence that Mr. Allen had been or was still being investigated for sexual misconduct with minors, (2) evidence that cast doubt on Mr. Allen’s memory and the amount of money paid to Mr. Kohring, (3) evidence that the payments were made out of friendship and pity rather than a corrupt quid-pro-quo relationship, (4) evidence of inconsistent statements made by Smith, as well as a questionable relationship he had with an investigating FBI agent, and (6) evidence that a government witness thought Mr. Kohring was not corrupt. The Court disagreed with the district court assessment that the evidence was not material, but did not find sufficient evidence to conclude the prosecution “acted flagrantly, willfully, and in bad faith,” and so remanded for a new trial rather than dismissing the charges.
In a partial concurrence and partial dissent, Judge Fletcher agreed with the reasoning in the majority’s opinion that established that the prosecution withheld and suppressed material which was favorable to the defense, and that these suppressions undeniably prejudiced Mr. Kohring. However, Judge Fletcher argued that this case exemplifies “flagrant prosecutorial misconduct,” and that this case should have been dismissed with prejudice. http://www.ca9.uscourts.gov/datastore/opinions/2011/03/11/08-30170.pdf
United States v. Eriksen: The Court affirmed convictions of Defendants-Appellants Sigmund Eriksen and Raymond Eriksen of two counts of Embezzlement or Conversion of the Funds of an Employment Benefit Plan, and one count of Making False or Misleading Statements in an Employee Retirement Income Security Act of 1974 (ERISA) Benefit Plan Document that Federal Law Requires to be Kept. The Court found that there was sufficient evidence to support the convictions, specifically holding that the government had established that the plans in question contained 401(k) components, and therefore the employer could not modify the plan by withholding contributions. The Court further held that the fact that from 2002 until their detection, the Ericksens never contributed to the plan, instead using employee contributions and withholding to pay business expenses, constituted a willful withholding of employee funds. Finally, the Court held that the fact that the defendants repaid the plan was immaterial to the proof of the charges in this case, as it was the initial withholding of money that constituted the crime. http://www.ca9.uscourts.gov/datastore/opinions/2011/03/09/10-30056.pdf
United States v. Bonilla: The Court vacated and remanded Mr. Bonilla’s conviction upon a plea of guilty to possession of an unregistered firearm and to being a felon in possession of a firearm. The Court found that counsel’s failure to advise Mr. Bonilla that his plea was grounds for deportation, due to her mistaken belief that Mr. Bonilla is a United States citizen, was reasonable grounds for him to have declined to enter such a plea. Thus, the Court concluded, the district court’s refusal to allow him to withdraw the plea when he was informed for the first time at the plea hearing that he would be deported on the basis of the plea was an abuse of discretion. http://www.ca9.uscourts.gov/datastore/opinions/2011/03/11/09-10307.pdf
United States v. Regalado: The Court held that the government in this case had 90 days to file a forfeiture complaint under the pertinent statute. In so holding, the Court disagreed with Mr. Regalado’s argument that the government should have filed the complaint within sixty days, finding that Mr. Regalado was not entitled to this time limit because he did not file a cost bond. The Court also noted that the regulation imposing the sixty day time limit was arguably no longer in effect because the effectuating statute had been repealed.
In a concurrence, Judge Thomas agreed that the government had ninety days to file a claim in this case, and that the subsequently filed claim was in fact timely filed. However, the concurrence argued that the filing of a cost bond was not an issue in this case. Rather, the concurrence argued, the regulation’s 60-day time limit plainly conflicts with the statute; thus, the regulation is ultra vires. http://www.ca9.uscourts.gov/datastore/opinions/2011/03/11/09-15821.pdf
United States v. Williams: The Court held that a sentence of a life term of supervised release does not constitute “cruel and unusual” punishment under the Eighth Amendment. The Court pointed out that Mr. Williams had been convicted of sexual assault of a minor in the past, and combined with the current child porn conviction, showed a significant likelihood of re-offense. The Court likewise reasoned that child sex offenders in general have a high recidivism rate. For those reasons, the district court did not err in sentencing Williams to a fifteen-year sentence, followed by a life term of supervised release. http://www.ca9.uscourts.gov/datastore/opinions/2011/03/07/10-30084.pdf
Huston v. Schomig: Mr. Huston appealed from an evidentiary hearing on remand of this case, the purpose of which was “to determine whether a conflict of interest adversely affected [Houston’s] counsel’s performance and, if so, whether there is a reasonable probability that the result of the trial would have been different in the absence of that effect.” The Court on remand found that Mr. Huston’s representation was not adversely affected by the fact that his attorney was part of the same public defender’s office that had represented a key witness against Mr. Huston in a previous case. On appeal, the Court found no clear error in the district court’s findings, concluding that they were well supported by the record and the law, we affirm. http://www.ca9.uscourts.gov/datastore/opinions/2011/03/08/10-15048.pdf
United States Supreme Court:
Skinner v. Switzer: In an opinion authored by Justice Ginsberg and joined by Justices Roberts, Scalia, Breyer, Sotomayor, and Kagan, the court held that a convicted state prisoner seeking DNA testing of crime scene evidence may assert that claim in a civil rights action under 42 U. S. C. §1983. Mr. Skinner was sentenced to death in Texas for murdering his girlfriend and her sons. His defense was that he had been physically incapable of the murders due to extreme intoxication, and requested that evidence that had been left untested at the trial now be tested under a new Texas law, stating his belief that the evidence would hold the DNA of his girlfriend’s uncle, whom he had identified as the likely perpetrator. The requests were twice denied, first on the ground that Mr. Skinner had not shown that he “would not have been convicted if exculpatory results had been obtained through DNA testing,” and the second on the ground that Mr. Skinner had not shown that the evidence was not previously tested “through no fault” on his part. Mr. Skinner next filed the instant federal action for injunctive relief under §1983, alleging that Texas violated his Fourteenth Amendment right to due process by refusing to provide for the DNA testing he requested. The Supreme Court reversed the Fifth Circuit denial of the complaint for failure to state a claim, which had reasoned that post conviction requests for DNA evidence are cognizable only in habeas corpus, not under §1983, finding that there is federal-court subject-matter jurisdiction over Mr. Skinner’s complaint, and the claim he presses is cognizable under §1983.
Justice Thomas, joined by Justices Kennedy and Alito, dissented, disagreeing that Mr. Skinner’s claim was cognizable under §1983. While Justice Thomas accepted that the issue had been left open by prior case law, he argued that the Court has in the past struggled to limit §1983 and prevent it from intruding into the boundaries of habeas corpus, and this case calls for another such limit: “due process challenges to state procedures used to review the validity of a conviction or sentence.” http://www.supremecourt.gov/opinions/10pdf/09-9000.pdf
Wall v. Kholi: In an opinion written by Justice Alito, and joined by Justices Roberts, Kennedy, Ginsberg, Thomas, Breyer, Sotomayor, Kagan, and joined by Justice Scalia except as to footnote three, the Court held that the phrase “collateral review” in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) means judicial review of a judgment in a proceeding that is not part of direct review. In this case, Mr. Kholi was convicted of ten counts of first-degree sexual assault and sentenced to consecutive life terms. Mr. Kohli filed a direct appeal as well as a motion to reduce his sentence and a post-conviction relief motion, both of which were denied. He did not file the instant federal habeas petition under 11 years after finalization of his conviction, ten years after such petition should be filed in the normal course. The District Court dismissed the petition as untimely, and the Fifth Circuit reversed, finding the intervening period was tolled by Mr. Kohli’s sentencing motions. Under the Court’s holding, which gave the undefined term its ordinary meaning, both Mr. Kohli’s motion to reduce his sentence and his post-conviction relief motion qualified as collateral review motions, as both sought collateral remedies and both called for review of the sentence.
In his partial concurrence, Justice Scalia agreed with the Court’s conclusions but stated his opposition to footnote three of the Court’s opinion, which declines to decide whether Mr. Kohli’s motion to reduce his sentence sought direct review. http://www.supremecourt.gov/opinions/10pdf/09-868.pdf
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Friday, March 11, 2011
Criminal Case Law Update, Week Ending 3-4-11
Washington State Law
Washington State Supreme Court:
State v. Russell: The court held that a trial court is not required to sua sponte give a limiting instruction for ER 404(b) evidence, absent a request for such a limiting instruction. In this case, the Court of Appeals had reversed Mr. Russell’s conviction for first degree rape of a child because evidence of Mr. Russell’s abuse of the alleged victim in other states both before and after the alleged incidents in this case was admitted without a limiting instruction. The supreme court reversed and affirmed the conviction. http://www.courts.wa.gov/opinions/pdf/843074.opn.pdf
Division One Court of Appeals:
State v. Rowland: The court held that under the facts of this case, Blakely v. Washington did not apply to require that facts supporting an exceptional sentence be tried to a jury and proved beyond a reasonable doubt on remand for resentencing from a collateral attack on a miscalculated offender score. The Court reasoned that the remand directed the trial court only to consider the second prong of the sentencing process, wherein a judge exercises his or her discretion to determine, given the aggravating facts, whether an exceptional sentence is warranted and, if so, its length. The remand did not touch upon the factual determination made by a jury, which must find in the initial sentencing hearing that facts exist beyond a reasonable doubt to support an exceptional sentence. However, the Court found that Mr. Rowland was entitled to dispute a new offender score error at his resentencing hearing, and remanded the case to correct the offender score and standard sentencing range. http://www.courts.wa.gov/opinions/pdf/64262-6.pub.doc.pdf
Division Two Court of Appeals:
Personal Restraint of Stockwell: The Court found no unlawful restraint in this partially published opinion, and denied Mr. Stockwell’s petition. In so doing, the Court found meritless Mr. Stockwell’s arguments that (1) his prior 1986 conviction for first degree statutory rape is not comparable to the current crime of first degree child rape; (2) the trial court erred by sealing jury questionnaires without weighing the five Bone-Club factors; (3) the trial court erred when ruling on challenges to certain jurors for cause; (4) the trial court erred by sending certain exhibits to the jury room; and (5) his appellate counsel on direct appeal ineffectively represented him by failing to request voir dire transcripts and inadequately briefing the comparability analysis. http://www.courts.wa.gov/opinions/pdf/37238-0.11.cor.doc.pdf
Federal Law
Ninth Circuit Court of Appeals:
United States v. Sepulveda-Barraza: The Court affirmed Mr. Sepulveda-Barraza’s conviction for importation of cocaine and possession with the intent to distribute. The court found that the district court did not err in admitting expert testimony regarding the structure and operations of drug-trafficking organizations and drug couriers, including testimony that drugs are rarely smuggled by unknowing couriers. The Court reasoned that admission of such testimony was not an abuse of the district court’s discretion, because it was relevant, probative, and not unduly prejudicial in light of Mr. Sepulveda-Barraza’s defense theory that he did not know that he was
transporting drugs. http://www.ca9.uscourts.gov/datastore/opinions/2011/03/03/09-10362.pdf
Reeb v. Thomas: The Court held that the district court does not have subject matter jurisdiction to review the Bureau of Prisons’ (“BOP”) individualized residential drug abuse program (“RDAP”) determinations. The Court reasoned that a habeas claim cannot be sustained based solely upon the BOP’s purported violation of its own program statement because noncompliance with a BOP program statement is not a violation of federal law. Program statements are “internal
agency guidelines [that] may be altered by the [BOP] at will” and that are not “subject to the rigors of the Administrative Procedure Act, including public notice and comment.” The Court stressed that judicial review remains available for allegations that BOP action is contrary to established federal law, violates the United States Constitution, or exceeds its statutory authority. http://www.ca9.uscourts.gov/datastore/opinions/2011/03/03/09-35815.pdf
Alaimalo v. United States: The court found that it had jurisdiction to consider this opinion, brought without a certificate of appealability, and that the prior panel’s denial on the merits of Mr. Alaimalo’s earlier petitions should not be given preclusive effect. The Court reasoned that Mr. Alaimalo was actually innocent and failing to consider his habeas petition would result in manifest injustice. The Court recognized the probability that vacating Mr. Alaimalo’s convictions for importation of methamphetamine would not reduce the length of his confinement, however, the Court noted that the action would remove “the possibility that he will be subject to their adverse collateral consequences.
In his dissent, Judge Korman argued that this appeal, no matter how decided, would have no practical consequence, as Mr. Alaimalo is sentenced to life imprisonment on other convictions and would not be released even if the convictions at issue here were to be reversed. The dissent thus objected to the meaninglessness of the writ ordered. http://www.ca9.uscourts.gov/datastore/opinions/2011/02/28/08-56349.pdf
United States v. Salazar-Mojica: The Court upheld Mr. Salazar-Mojica’s conviction for being a deported alien found in the United States. The Court found that despite the fact that Mr. Salazar-Mojica’s prior conviction for a felony crime of violence had been reduced to a misdemeanor after his deportation and the arrest for the current offense, the felony conviction was nevertheless the appropriate standard for calculation for the sentencing range in this case, as the relevant time for determining whether a prior conviction was a felony for purposes of the enhancement is the time of the defendant’s deportation. Because Mr. Salazar-Mojica’s conviction for a crime of violence was a felony conviction at the time of his deportation, the court reasoned, the application of the 16-level enhancement was appropriate, despite the subsequent reduction to a misdemeanor. http://www.ca9.uscourts.gov/datastore/opinions/2011/02/24/09-50632.pdf
United States v. Lynn: The Court found that Mr. Lynn’s convictions for receiving or distributing visual depictions of a minor engaging in sexually explicit conduct and for possessing visual depictions of a minor engaging in sexually explicit conduct violated double jeopardy. The Court reasoned that the convictions were based on the same underlying conduct and remanded with instructions to vacate one of the convictions, with the caveat that it could be reinstated without prejudice if his other conviction should be overturned on direct or collateral review. The Court further denied Mr. Lynn’s motion for reversal of both convictions based on insufficiency of the evidence, and found that the sentence imposed was appropriate. http://www.ca9.uscourts.gov/datastore/opinions/2011/02/23/09-10242.pdf
United States v. Watson: The Court upheld the district court’s decision revoking Mr. Watson’s supervised release and sentencing him to three years in prison. The Court found that Mr. Watson’s eleven arrests by state authorities in Minnesota between 1996 and 2007, while he was a fugitive from federal justice based on a failure to notify his probation officer of his change in residence, were insufficient to notify federal authorities of his whereabouts. Therefore, the Court held, contrary to Mr. Watson’s arguments, his term of supervision was tolled under federal authorities could resume supervision, that is, upon his arrest by federal authorities in 2009. The district court thus had jurisdiction to revoke Mr. Watson’s period of supervised release, and to impose a three-year prison sentence. http://www.ca9.uscourts.gov/datastore/opinions/2011/02/23/09-50666.pdf
United States v. Hernandez-Guerrero: The Court upheld Mr. Hernandez-Guerrero’s 27-month sentence imposed upon his plea of guilty to being an alien found in the United States following deportation. The Court found that the district court did not err in using the date he reentered the country instead of the date he was actually found in the country in the computation of Mr. Hernandez-Guerrero’s criminal history score. The district court had included in that score a 1992 controlled substance conviction as having been imposed within fifteen years of the commencement of the current offense, a date based upon Mr. Hernandez-Guerrero’s re-entry date. The crime would not have been part of Mr. Hernandez-Guerrero’s offender score had the district court used the date he was actually found in the country for computation of this score. http://www.ca9.uscourts.gov/datastore/opinions/2011/02/23/10-50096.pdf
United States Supreme Court:
Michigan v. Bryant: In an opinion authored by Justice Sotomayor, and joined by Justices Roberts, Breyer, Kennedy, and Alito, the Court held that a deceased victim’s identification and description of his shooter and the location of the shooting were not testimonial statements because their primary purpose was “to enable police assistance to meet an ongoing emergency,” as sanctioned under Davis. Therefore, their admission at Mr. Bryant’s trial in this case did not violate the Confrontation Clause. The Court stressed that the Davis decision had found that statements made “in the course of police interrogation under circumstances objectively indicating that the [interrogation’s] primary purpose . . . is to enable police assistance to meet an ongoing emergency,” are not testimonial. Rather, such statements are only testimonial when made in the absence of such emergency to “establish or prove past events potentially relevant to later criminal prosecution.” However, though this case, the Court added a new dimension to the “primary purpose inquiry,” ruling that the objective intent of both the declarant and the interrogator was to be considered in determining whether a statement was testimonial. The Court stressed that the existence of an ongoing emergency at the time of the encounter is among the most important circumstances informing the purpose of the interrogation. The Court reasoned that his inquiry is highly context-dependent and relies not just upon whether the threat to the first victim has been neutralized, because the threat to police and public may continue, as the Court found it did here when an armed assailant remained at large. The Court further reasoned that a victim’s medical condition is similarly important to the primary purpose inquiry, as it sheds light on the victim’s ability to have a purpose and provides a context for first responders to judge the existence and magnitude of any continuing threat. However, the Court specifically found that this “does not mean that an emergency lasts the entire time that a perpetrator is on the loose…” and stressed that whether an ongoing emergency exists is but one factor informing the ultimate inquiry regarding the primary purpose of an interrogation. Among others are the formality of the encounter, the statements and actions of both the declarant and interrogators, including the content of both the questions and answers.
In an opinion concurring in the judgment, Justice Thomas agreed that the admission of the victim’s out-of-court statements did not violate the Confrontation Clause, but reached this conclusion because he believed the victim’s questioning by police “lacked sufficient formality and solemnity for his statements to be considered ‘testimonial.’” Justice Thomas disagreed with the use of the “primary purpose test,” calling it an “exercise in fiction that is disconnected from history and yields no predictable results.” Instead, Justice Thomas argued that the Court should consider the extent resembles those “historical practices that the Confrontation Clause addressed.”
In a dissent, Justice Scalia called the Court’s conclusion “patently incorrect on the facts,” and lambasted the precedent set by this case as one that “distorts our Confrontation Clause jurisprudence and leaves it in a shambles.” Justice Scalia argued for a continued adherence to the “Confrontation Clause that the People adopted, as described in Crawford v. Washington.” Under that jurisprudence, the dissent maintained that the intent of the declarant was the primary consideration, particularly whether the declarant intended the statement to be a solemn declaration rather than an unconsidered or offhand remark and whether he made the statement with the understanding that it may be used to “invoke the coercive machinery of the State against the accused.” The dissent argued that the “hidden purpose of an interrogator cannot substitute for the declarant’s intentional solemnity or his understanding of how his words may be used.” The dissent posited that the declarant-focused inquiry would work in every fact pattern, and to impose a different standard is senseless, particularly in cases of spontaneous statements made without interrogation that are nonetheless testimonial in nature. The dissent noted that, “[s]orting out the primary purpose of a declarant with mixed motives is sometimes difficult. But adding in the mixed motives of the police only compounds the problem. Now courts will have to sort through two sets of mixed motives to determine the primary purpose of an interrogation.” In this case, the dissent posited, the victim had little intent in making his statement save to ensure the arrest and prosecution of his assailant. The victim doubtless had little fear of being shot again once he was surrounded by five armed police officers, the dissent pointed out, and, even considering the test set forth by the Court, the dissent observed that the police likewise likely had little fear that the alleged assailant would come after them or other members of the public, as they were aware that this was a drug-related shooting, not a crime spree, and that in the majority of murder cases, there is but one victim. Further, the dissent noted, the questions regarding identity and address were not necessary to provide medical treatment to the victim, only to ensure capture of the killer. The dissent further criticized as a throwback to the pre-Crawford law the Court’s announcement that future cases should look to “standard rules of hearsay, designed to identify some statements as reliable,” when deciding whether a statement is testimonial, noting that “[w]e tried that approach to the Confrontation Clause for nearly 25 years before Crawford rejected it as an unworkable standard unmoored from the text and the historical roots of the Confrontation Clause.” The dissent further disagreed with the context-driven inquiry set forth by the Court in this decision, noting that it would pave the way for results-based decisions, and opened up arenas of debate over factors considered in the balancing tests set forth by the Court that need not be considered.
In her dissent, Justice Ginsburg agreed with Justice Scalia’s conclusions that the victim’s statements in this case were testimonial and that “[t]he declarant’s intent is what counts.” Justice Ginsburg further agreed that even if the interrogator’s intent factored in, in this case the statements would nevertheless be testimonial. However, Justice Ginsburg wrote separately to add the observation that a dying declaration is a well-established exception to the confrontation requirement, and that such issue should have been properly tendered in this case, to allow the court to consider whether the exception for dying declarations survives the Court’s recent Confrontation Clause decisions.
Justice Kagan took no part in the consideration or decision of the case. http://www.supremecourt.gov/opinions/10pdf/09-150.pdf
Pepper v. United States: In an opinion authored by Justice Sotomayor and joined in full by Justices Roberts, Scalia, Kennedy, and Ginsburg and joined in part by Justices Breyer and Alito, the Court ruled that when a defendant’s sentence has been set aside on appeal, a district court at resentencing may consider evidence of the defendant’s post-sentencing rehabilitation, and such evidence may, in appropriate cases, support a downward variance from the Guidelines range. The Court reasoned that this was such a case, as Mr. Pepper had, since sentencing, overcome an addiction, attended college, found a steady job, reconciled with his father, gotten married, and was supporting his family. The Court held that this information was validly before the sentencing court, citing Williams v. New York, which held that a sentencing court should have wide discretion as to the evidence considered, thus allowing it to tailor a punishment to fit the offender and not merely the crime. The Court noted that this principle had been codified under 18 U.S.C. §3661, which provides that“[n]o limitation shall be placed on the information” a sentencing court may consider “concerning the [defendant’s] background, character, and conduct,” and at §3553(a), which specifies that sentencing courts must consider, among other things, a defendant’s “history and characteristics,” §3553(a)(1). Though the Court recognized that the sentencing guidelines were a good starting point, it found other factors should be considered in both the initial sentencing and any subsequent resentencing after appeal. The Court specifically found that post-sentencing rehabilitation evidence could support a downward variance from the Guidelines range, and that Mr. Pepper’s rehabilitation was clearly relevant to the selection of an appropriate sentence in this case. The Court further found that §3742(g)(2)—which prohibits a district court at resentencing from imposing a sentence outside the Guidelines range except upon a ground it relied upon at the prior sentencing—is invalid after Booker, and that this section does not reflect a Congressional intent to bar consideration of post-sentencing rehabilitation evidence.
In a partial concurrence, Justice Breyer agreed that 18 U. S. C. §3742(g)(2) is invalid under Booker. He also agreed that the law does not require a sentencing court to follow a Guideline policy statement that forbids taking account of post-sentencing rehabilitation. However, Justice Breyer emphasized that “this conclusion does not leave a sentencing court free to disregard the Guidelines at will,” but “permits the court to disregard the Guidelines only where it is “reasonable” for a court to do so.”
In a partial concurrence and partial dissent, Justice Alito agreed that the decision could not be affirmed on the basis of 18 U. S. C. §3742(g), as this provision has been rendered invalid under Booker. Justice Alito also concurred in the judgment “to the extent that it holds that the decision below regarding evidence of post-sentencing rehabilitation must be reversed.” However, Justice Alito stressed that judges should still be required in almost all cases to give significant weight to the police decisions embodied in the Guidelines. However, the justice recognized that the policy statement in the instant matter is distinguishable from almost all of the other rules that the Commission has adopted, and thus concurred in the end result for this case.
In a dissent, Justice Thomas argued that the Court of Appeals decision should have been affirmed, and Mr. Pepper’s 65 month sentence upheld. The dissent argued that the Federal Sentencing Guidelines, as written, “do not permit district courts to impose a sentence below the Guidelines range based on the defendant’s post-sentencing rehabilitation.” In so arguing, the dissent appeared to once again take issue with the holdings in Booker and Kimbrough which rendered the Guidelines advisory rather than mandatory, and argued that there is “no principled way to apply the Booker remedy,” and therefore the Guidelines should be applied as written unless so doing would be a Sixth Amendment violation.
Justice Kagan took no part in the consideration or decision of the case. http://www.supremecourt.gov/opinions/10pdf/09-6822.pdf
Walker v. Martin: In a unanimous decision authored by Justice Ginsberg, the Court held that the “reasonableness standard” used by California courts in lieu of a determinate time limit to judge the timeliness of a habeas petition qualifies as an independent state ground adequate to bar habeas corpus relief in federal court. Federal relief is therefore unavailable for an untimely petition absent a showing of cause and prejudice. The Court found that the California rule was firmly established and regularly followed and therefore adequate under settled case law even though the exercise of discretion permits consideration of a federal claim in some cases but not others. In so holding, the Court reasoned that the requirement was framed through a trilogy of cases, and that the courts have supplied clarity through application of the rule. The Court dismissed Mr. Martin’s arguments that the terms “reasonable time” period and “substantial delay” make California’s rule too vague to be regarded as “firmly established.” The Court further found that the rule was regularly followed, lending strength to its application. The Court also decided that the California time bar was not infirm merely because it allows for differing outcomes or a bypass of the rule entirely depending on the case. The Court concluded that there was no showing that the California rule was discriminatory, and affirmed the denial of habeas relief. http://www.supremecourt.gov/opinions/10pdf/09-996.pdf
Washington State Supreme Court:
State v. Russell: The court held that a trial court is not required to sua sponte give a limiting instruction for ER 404(b) evidence, absent a request for such a limiting instruction. In this case, the Court of Appeals had reversed Mr. Russell’s conviction for first degree rape of a child because evidence of Mr. Russell’s abuse of the alleged victim in other states both before and after the alleged incidents in this case was admitted without a limiting instruction. The supreme court reversed and affirmed the conviction. http://www.courts.wa.gov/opinions/pdf/843074.opn.pdf
Division One Court of Appeals:
State v. Rowland: The court held that under the facts of this case, Blakely v. Washington did not apply to require that facts supporting an exceptional sentence be tried to a jury and proved beyond a reasonable doubt on remand for resentencing from a collateral attack on a miscalculated offender score. The Court reasoned that the remand directed the trial court only to consider the second prong of the sentencing process, wherein a judge exercises his or her discretion to determine, given the aggravating facts, whether an exceptional sentence is warranted and, if so, its length. The remand did not touch upon the factual determination made by a jury, which must find in the initial sentencing hearing that facts exist beyond a reasonable doubt to support an exceptional sentence. However, the Court found that Mr. Rowland was entitled to dispute a new offender score error at his resentencing hearing, and remanded the case to correct the offender score and standard sentencing range. http://www.courts.wa.gov/opinions/pdf/64262-6.pub.doc.pdf
Division Two Court of Appeals:
Personal Restraint of Stockwell: The Court found no unlawful restraint in this partially published opinion, and denied Mr. Stockwell’s petition. In so doing, the Court found meritless Mr. Stockwell’s arguments that (1) his prior 1986 conviction for first degree statutory rape is not comparable to the current crime of first degree child rape; (2) the trial court erred by sealing jury questionnaires without weighing the five Bone-Club factors; (3) the trial court erred when ruling on challenges to certain jurors for cause; (4) the trial court erred by sending certain exhibits to the jury room; and (5) his appellate counsel on direct appeal ineffectively represented him by failing to request voir dire transcripts and inadequately briefing the comparability analysis. http://www.courts.wa.gov/opinions/pdf/37238-0.11.cor.doc.pdf
Federal Law
Ninth Circuit Court of Appeals:
United States v. Sepulveda-Barraza: The Court affirmed Mr. Sepulveda-Barraza’s conviction for importation of cocaine and possession with the intent to distribute. The court found that the district court did not err in admitting expert testimony regarding the structure and operations of drug-trafficking organizations and drug couriers, including testimony that drugs are rarely smuggled by unknowing couriers. The Court reasoned that admission of such testimony was not an abuse of the district court’s discretion, because it was relevant, probative, and not unduly prejudicial in light of Mr. Sepulveda-Barraza’s defense theory that he did not know that he was
transporting drugs. http://www.ca9.uscourts.gov/datastore/opinions/2011/03/03/09-10362.pdf
Reeb v. Thomas: The Court held that the district court does not have subject matter jurisdiction to review the Bureau of Prisons’ (“BOP”) individualized residential drug abuse program (“RDAP”) determinations. The Court reasoned that a habeas claim cannot be sustained based solely upon the BOP’s purported violation of its own program statement because noncompliance with a BOP program statement is not a violation of federal law. Program statements are “internal
agency guidelines [that] may be altered by the [BOP] at will” and that are not “subject to the rigors of the Administrative Procedure Act, including public notice and comment.” The Court stressed that judicial review remains available for allegations that BOP action is contrary to established federal law, violates the United States Constitution, or exceeds its statutory authority. http://www.ca9.uscourts.gov/datastore/opinions/2011/03/03/09-35815.pdf
Alaimalo v. United States: The court found that it had jurisdiction to consider this opinion, brought without a certificate of appealability, and that the prior panel’s denial on the merits of Mr. Alaimalo’s earlier petitions should not be given preclusive effect. The Court reasoned that Mr. Alaimalo was actually innocent and failing to consider his habeas petition would result in manifest injustice. The Court recognized the probability that vacating Mr. Alaimalo’s convictions for importation of methamphetamine would not reduce the length of his confinement, however, the Court noted that the action would remove “the possibility that he will be subject to their adverse collateral consequences.
In his dissent, Judge Korman argued that this appeal, no matter how decided, would have no practical consequence, as Mr. Alaimalo is sentenced to life imprisonment on other convictions and would not be released even if the convictions at issue here were to be reversed. The dissent thus objected to the meaninglessness of the writ ordered. http://www.ca9.uscourts.gov/datastore/opinions/2011/02/28/08-56349.pdf
United States v. Salazar-Mojica: The Court upheld Mr. Salazar-Mojica’s conviction for being a deported alien found in the United States. The Court found that despite the fact that Mr. Salazar-Mojica’s prior conviction for a felony crime of violence had been reduced to a misdemeanor after his deportation and the arrest for the current offense, the felony conviction was nevertheless the appropriate standard for calculation for the sentencing range in this case, as the relevant time for determining whether a prior conviction was a felony for purposes of the enhancement is the time of the defendant’s deportation. Because Mr. Salazar-Mojica’s conviction for a crime of violence was a felony conviction at the time of his deportation, the court reasoned, the application of the 16-level enhancement was appropriate, despite the subsequent reduction to a misdemeanor. http://www.ca9.uscourts.gov/datastore/opinions/2011/02/24/09-50632.pdf
United States v. Lynn: The Court found that Mr. Lynn’s convictions for receiving or distributing visual depictions of a minor engaging in sexually explicit conduct and for possessing visual depictions of a minor engaging in sexually explicit conduct violated double jeopardy. The Court reasoned that the convictions were based on the same underlying conduct and remanded with instructions to vacate one of the convictions, with the caveat that it could be reinstated without prejudice if his other conviction should be overturned on direct or collateral review. The Court further denied Mr. Lynn’s motion for reversal of both convictions based on insufficiency of the evidence, and found that the sentence imposed was appropriate. http://www.ca9.uscourts.gov/datastore/opinions/2011/02/23/09-10242.pdf
United States v. Watson: The Court upheld the district court’s decision revoking Mr. Watson’s supervised release and sentencing him to three years in prison. The Court found that Mr. Watson’s eleven arrests by state authorities in Minnesota between 1996 and 2007, while he was a fugitive from federal justice based on a failure to notify his probation officer of his change in residence, were insufficient to notify federal authorities of his whereabouts. Therefore, the Court held, contrary to Mr. Watson’s arguments, his term of supervision was tolled under federal authorities could resume supervision, that is, upon his arrest by federal authorities in 2009. The district court thus had jurisdiction to revoke Mr. Watson’s period of supervised release, and to impose a three-year prison sentence. http://www.ca9.uscourts.gov/datastore/opinions/2011/02/23/09-50666.pdf
United States v. Hernandez-Guerrero: The Court upheld Mr. Hernandez-Guerrero’s 27-month sentence imposed upon his plea of guilty to being an alien found in the United States following deportation. The Court found that the district court did not err in using the date he reentered the country instead of the date he was actually found in the country in the computation of Mr. Hernandez-Guerrero’s criminal history score. The district court had included in that score a 1992 controlled substance conviction as having been imposed within fifteen years of the commencement of the current offense, a date based upon Mr. Hernandez-Guerrero’s re-entry date. The crime would not have been part of Mr. Hernandez-Guerrero’s offender score had the district court used the date he was actually found in the country for computation of this score. http://www.ca9.uscourts.gov/datastore/opinions/2011/02/23/10-50096.pdf
United States Supreme Court:
Michigan v. Bryant: In an opinion authored by Justice Sotomayor, and joined by Justices Roberts, Breyer, Kennedy, and Alito, the Court held that a deceased victim’s identification and description of his shooter and the location of the shooting were not testimonial statements because their primary purpose was “to enable police assistance to meet an ongoing emergency,” as sanctioned under Davis. Therefore, their admission at Mr. Bryant’s trial in this case did not violate the Confrontation Clause. The Court stressed that the Davis decision had found that statements made “in the course of police interrogation under circumstances objectively indicating that the [interrogation’s] primary purpose . . . is to enable police assistance to meet an ongoing emergency,” are not testimonial. Rather, such statements are only testimonial when made in the absence of such emergency to “establish or prove past events potentially relevant to later criminal prosecution.” However, though this case, the Court added a new dimension to the “primary purpose inquiry,” ruling that the objective intent of both the declarant and the interrogator was to be considered in determining whether a statement was testimonial. The Court stressed that the existence of an ongoing emergency at the time of the encounter is among the most important circumstances informing the purpose of the interrogation. The Court reasoned that his inquiry is highly context-dependent and relies not just upon whether the threat to the first victim has been neutralized, because the threat to police and public may continue, as the Court found it did here when an armed assailant remained at large. The Court further reasoned that a victim’s medical condition is similarly important to the primary purpose inquiry, as it sheds light on the victim’s ability to have a purpose and provides a context for first responders to judge the existence and magnitude of any continuing threat. However, the Court specifically found that this “does not mean that an emergency lasts the entire time that a perpetrator is on the loose…” and stressed that whether an ongoing emergency exists is but one factor informing the ultimate inquiry regarding the primary purpose of an interrogation. Among others are the formality of the encounter, the statements and actions of both the declarant and interrogators, including the content of both the questions and answers.
In an opinion concurring in the judgment, Justice Thomas agreed that the admission of the victim’s out-of-court statements did not violate the Confrontation Clause, but reached this conclusion because he believed the victim’s questioning by police “lacked sufficient formality and solemnity for his statements to be considered ‘testimonial.’” Justice Thomas disagreed with the use of the “primary purpose test,” calling it an “exercise in fiction that is disconnected from history and yields no predictable results.” Instead, Justice Thomas argued that the Court should consider the extent resembles those “historical practices that the Confrontation Clause addressed.”
In a dissent, Justice Scalia called the Court’s conclusion “patently incorrect on the facts,” and lambasted the precedent set by this case as one that “distorts our Confrontation Clause jurisprudence and leaves it in a shambles.” Justice Scalia argued for a continued adherence to the “Confrontation Clause that the People adopted, as described in Crawford v. Washington.” Under that jurisprudence, the dissent maintained that the intent of the declarant was the primary consideration, particularly whether the declarant intended the statement to be a solemn declaration rather than an unconsidered or offhand remark and whether he made the statement with the understanding that it may be used to “invoke the coercive machinery of the State against the accused.” The dissent argued that the “hidden purpose of an interrogator cannot substitute for the declarant’s intentional solemnity or his understanding of how his words may be used.” The dissent posited that the declarant-focused inquiry would work in every fact pattern, and to impose a different standard is senseless, particularly in cases of spontaneous statements made without interrogation that are nonetheless testimonial in nature. The dissent noted that, “[s]orting out the primary purpose of a declarant with mixed motives is sometimes difficult. But adding in the mixed motives of the police only compounds the problem. Now courts will have to sort through two sets of mixed motives to determine the primary purpose of an interrogation.” In this case, the dissent posited, the victim had little intent in making his statement save to ensure the arrest and prosecution of his assailant. The victim doubtless had little fear of being shot again once he was surrounded by five armed police officers, the dissent pointed out, and, even considering the test set forth by the Court, the dissent observed that the police likewise likely had little fear that the alleged assailant would come after them or other members of the public, as they were aware that this was a drug-related shooting, not a crime spree, and that in the majority of murder cases, there is but one victim. Further, the dissent noted, the questions regarding identity and address were not necessary to provide medical treatment to the victim, only to ensure capture of the killer. The dissent further criticized as a throwback to the pre-Crawford law the Court’s announcement that future cases should look to “standard rules of hearsay, designed to identify some statements as reliable,” when deciding whether a statement is testimonial, noting that “[w]e tried that approach to the Confrontation Clause for nearly 25 years before Crawford rejected it as an unworkable standard unmoored from the text and the historical roots of the Confrontation Clause.” The dissent further disagreed with the context-driven inquiry set forth by the Court in this decision, noting that it would pave the way for results-based decisions, and opened up arenas of debate over factors considered in the balancing tests set forth by the Court that need not be considered.
In her dissent, Justice Ginsburg agreed with Justice Scalia’s conclusions that the victim’s statements in this case were testimonial and that “[t]he declarant’s intent is what counts.” Justice Ginsburg further agreed that even if the interrogator’s intent factored in, in this case the statements would nevertheless be testimonial. However, Justice Ginsburg wrote separately to add the observation that a dying declaration is a well-established exception to the confrontation requirement, and that such issue should have been properly tendered in this case, to allow the court to consider whether the exception for dying declarations survives the Court’s recent Confrontation Clause decisions.
Justice Kagan took no part in the consideration or decision of the case. http://www.supremecourt.gov/opinions/10pdf/09-150.pdf
Pepper v. United States: In an opinion authored by Justice Sotomayor and joined in full by Justices Roberts, Scalia, Kennedy, and Ginsburg and joined in part by Justices Breyer and Alito, the Court ruled that when a defendant’s sentence has been set aside on appeal, a district court at resentencing may consider evidence of the defendant’s post-sentencing rehabilitation, and such evidence may, in appropriate cases, support a downward variance from the Guidelines range. The Court reasoned that this was such a case, as Mr. Pepper had, since sentencing, overcome an addiction, attended college, found a steady job, reconciled with his father, gotten married, and was supporting his family. The Court held that this information was validly before the sentencing court, citing Williams v. New York, which held that a sentencing court should have wide discretion as to the evidence considered, thus allowing it to tailor a punishment to fit the offender and not merely the crime. The Court noted that this principle had been codified under 18 U.S.C. §3661, which provides that“[n]o limitation shall be placed on the information” a sentencing court may consider “concerning the [defendant’s] background, character, and conduct,” and at §3553(a), which specifies that sentencing courts must consider, among other things, a defendant’s “history and characteristics,” §3553(a)(1). Though the Court recognized that the sentencing guidelines were a good starting point, it found other factors should be considered in both the initial sentencing and any subsequent resentencing after appeal. The Court specifically found that post-sentencing rehabilitation evidence could support a downward variance from the Guidelines range, and that Mr. Pepper’s rehabilitation was clearly relevant to the selection of an appropriate sentence in this case. The Court further found that §3742(g)(2)—which prohibits a district court at resentencing from imposing a sentence outside the Guidelines range except upon a ground it relied upon at the prior sentencing—is invalid after Booker, and that this section does not reflect a Congressional intent to bar consideration of post-sentencing rehabilitation evidence.
In a partial concurrence, Justice Breyer agreed that 18 U. S. C. §3742(g)(2) is invalid under Booker. He also agreed that the law does not require a sentencing court to follow a Guideline policy statement that forbids taking account of post-sentencing rehabilitation. However, Justice Breyer emphasized that “this conclusion does not leave a sentencing court free to disregard the Guidelines at will,” but “permits the court to disregard the Guidelines only where it is “reasonable” for a court to do so.”
In a partial concurrence and partial dissent, Justice Alito agreed that the decision could not be affirmed on the basis of 18 U. S. C. §3742(g), as this provision has been rendered invalid under Booker. Justice Alito also concurred in the judgment “to the extent that it holds that the decision below regarding evidence of post-sentencing rehabilitation must be reversed.” However, Justice Alito stressed that judges should still be required in almost all cases to give significant weight to the police decisions embodied in the Guidelines. However, the justice recognized that the policy statement in the instant matter is distinguishable from almost all of the other rules that the Commission has adopted, and thus concurred in the end result for this case.
In a dissent, Justice Thomas argued that the Court of Appeals decision should have been affirmed, and Mr. Pepper’s 65 month sentence upheld. The dissent argued that the Federal Sentencing Guidelines, as written, “do not permit district courts to impose a sentence below the Guidelines range based on the defendant’s post-sentencing rehabilitation.” In so arguing, the dissent appeared to once again take issue with the holdings in Booker and Kimbrough which rendered the Guidelines advisory rather than mandatory, and argued that there is “no principled way to apply the Booker remedy,” and therefore the Guidelines should be applied as written unless so doing would be a Sixth Amendment violation.
Justice Kagan took no part in the consideration or decision of the case. http://www.supremecourt.gov/opinions/10pdf/09-6822.pdf
Walker v. Martin: In a unanimous decision authored by Justice Ginsberg, the Court held that the “reasonableness standard” used by California courts in lieu of a determinate time limit to judge the timeliness of a habeas petition qualifies as an independent state ground adequate to bar habeas corpus relief in federal court. Federal relief is therefore unavailable for an untimely petition absent a showing of cause and prejudice. The Court found that the California rule was firmly established and regularly followed and therefore adequate under settled case law even though the exercise of discretion permits consideration of a federal claim in some cases but not others. In so holding, the Court reasoned that the requirement was framed through a trilogy of cases, and that the courts have supplied clarity through application of the rule. The Court dismissed Mr. Martin’s arguments that the terms “reasonable time” period and “substantial delay” make California’s rule too vague to be regarded as “firmly established.” The Court further found that the rule was regularly followed, lending strength to its application. The Court also decided that the California time bar was not infirm merely because it allows for differing outcomes or a bypass of the rule entirely depending on the case. The Court concluded that there was no showing that the California rule was discriminatory, and affirmed the denial of habeas relief. http://www.supremecourt.gov/opinions/10pdf/09-996.pdf
Saturday, February 12, 2011
Tuesday, February 8, 2011
Washington State Law
Washington State Supreme Court:
In Re Discipline of Ferguson: The Court upheld a 90 suspension of Sandra Ferguson’s law license, finding that the disciplinary board’s imposition of that suspension in lieu of the 30 days recommended by the hearing officer was reasonable in light of the hearing officer’s findings that Ms. Ferguson appeared ex parte before a superior court judge in a contested matter without notice to opposing counsel, failed to disclose all relevant facts at an ex parte hearing, and obtained relief through misrepresentation and deceit in violation of the Rules of Professional Conduct. The Court reasoned that the enhanced suspension time was warranted in light of aggravating factors in this case. http://www.courts.wa.gov/opinions/pdf/2007198.opn.pdf
In his concurrence/dissent, Justice Alexander agreed with the suspension, but dissented with regard to the length, arguing that there was no justification for the Court’s downward departure from the ABA recommended suspension of 180 days. http://www.courts.wa.gov/opinions/pdf/2007198.ip1.pdf
Division One Court of Appeals:
State v. Mohamoud: The Court held that the deferred disposition statute, RCW 13.40.127, does not authorize the juvenile court to order a post-conviction deferred disposition on its own initiative. The Court concluded that the legislature did not intend to grant a juvenile court this type of authority, and the court in this case therefore lacked authority to order the deferred disposition in this case. In any case, the Court found that the deferred disposition would have been void because the trial court failed to follow all statutory requirements. The Court reversed and remanded for resentencing. http://www.courts.wa.gov/opinions/pdf/64958-2.pub.doc.pdf
Division Two Court of Appeals:
State v. Johnson: The Court found that a locomotive meets the definition of a “railway car” for the purposes of the burglary statute, and meets the statutory definition of a “building” for purposes of second degree burglary. Specifically, the Court found that the statutory definition of “building” includes “any…railway car,” a locomotive is therefore a railway car and a building. The Court also found that the trial court did not err in admitting a sales receipt found on Mr. Johnson at the time of his arrest showing that the prior day he had sold 105 pounds of copper wire to Valley Recycling. The court presumed that the trial court admitted the receipt as circumstantial evidence of Mr. Johnson’s motive or intent and instructed the jury on the limits of its use. As such, the Court concluded, the evidence was both relevant and admissible.
In her dissent, Judge Van Deren argued that the definition of “railway car” was ambiguous, as dicta in prior cases suggest that a locomotive is a “railway car,” however the ordinary dictionary definition of “railway car” does not encompass locomotive. Accordingly, the dissent would hold that whether a locomotive falls under the phrase “railway car” is subject to more than one reasonable interpretation and the rule of lenity should apply, with a holding that a locomotive is not a railway car under the burglary statute. Given this definition, there was insufficient evidence to find Mr. Johnson guilty of second degree burglary, and the case should have been dismissed. http://www.courts.wa.gov/opinions/pdf/39607-6.11.doc.pdf
Division Three Court of Appeals:
State v. Weber: The Court agreed with the superior court’s determination that the stop for speeding in this case did not support the district court’s legal conclusion that the stop was pretextual. The Court affirmed the superior court’s action in remanding the case for trial. The Court concluded that under Ladson, both a subjective intent of the officer and the reasonableness of the stop must be considered before finding a pretext and, in this case there was a reasonable stop with no improper motive, and therefore no basis for finding that the traffic stop was pretextual. http://www.courts.wa.gov/opinions/pdf/281922.opn.doc.pdf
In his dissent, Judge Sweeney argued that the superior court applied the wrong standard of review in this case, and improperly weighed the evidence, substituting its own judgment for that of the district court. The dissent argued that the test is not whether the appellate or superior courts would have found a different motive for the stop, but whether there is sufficient evidence, which if believed, would support the district court’s finding on the factual question of motive. The dissent posited that the standard was met in this case and the superior court’s decision should be reversed and the district court’s suppression order affirmed. http://www.courts.wa.gov/opinions/pdf/281922.dis.doc.pdf
Federal Law
Ninth Circuit Court of Appeals:
Stanley v. Cullen: Mr. Stanley filed an amended habeas petition in federal court asserting claims arising out of both the guilty and penalty phases of his arson and murder trial, including competency claims. The district court held that a biased juror rendered invalid the verdict of the competency jury and remanded to the state court to allow that court to determine whether it was feasible to conduct a retrial to decide whether Mr. Stanley was competent during his penalty phase trial. The district court denied all of Mr. Stanley’s guilt phase claims and held the remaining penalty phase claims in abeyance. Mr. Stanley appealed, contending that the state trial court’s failure to institute competency proceedings sua sponte during the guilt phase violated his right to procedural due process. Second, he contended that his trial counsel were ineffective for failing to investigate or raise the issue of his competency to stand trial during the guilt phase. Third, he contended that the district court improperly denied an evidentiary hearing on a claim that counsel were ineffective in failing to raise a diminished capacity defense during the guilt phase. Fourth, he contends that the district court acted improperly in remanding to the state court for a determination whether a retrial to decide Stanley’s competency during the penalty phase is feasible. Fifth, he contends that the district court acted improperly in holding in abeyance his remaining penalty phase claims pending the state court’s decision concerning the feasibility of a retrial, and possibly pending the retrial itself, on remand. Finally, he asks us to consider an uncertified claim that he was denied a full and fair hearing by the state courts on his motions to suppress evidence. The Court found that the district court’s decisions were reasonable, and declined to certify Mr. Stanley’s uncertified claim that he was denied a “full and fair” opportunity to litigate his Fourth Amendment search and seizure claims during the pretrial phase of his trial. http://www.ca9.uscourts.gov/datastore/opinions/2011/01/31/08-99026.pdf
United States v. Morris: The Court found that the government’s single plea offer in this case, in which it agreed not to file an amended information with an enhancement that would increase Mr. Morris’ sentence by ten years in exchange for a guilty plea and cooperation in an upcoming murder and drug dealing trial of a gang leader with whom Mr. Morris was associated, did not offend due process. The Court reversed the district court’s finding to the contrary, in which that court reasoned that the government’s tactics “short-circuited the truth-finding process” by requiring Mr. Morris to forfeit most of his rights from the start of the proceedings. The Court recognized that a give and take is required in the plea bargaining process, but found that this does not mean that the government “must engage in an extensive series of back-and-forth negotiations
for a plea offer to be valid.” The court concluded that “[t]here is nothing fundamentally wrong with the prosecution’s decision to present its best offer up front,” and that the government did not offend due process by extending a take it or leave it plea offer to Mr. Morris. http://www.ca9.uscourts.gov/datastore/opinions/2011/02/02/10-10009.pdf
United States v. Smith: The Court upheld Mr. Smith’s conviction for being a felon in possession of a firearm, upholding the district court’s decision to deny Mr. Smith’s motion to suppress the gun found on his person by a police officer. The Court found that Mr. Smith was not seized by the arresting officer after he crossed the street in front of the officer’s patrol car and the officer activated his siren, pulled to the curb, and ordered Mr. Smith to stand in front of the patrol car. Instead, Mr. Smith turned and ran, and was tackled and handcuffed by the officer. This is the point at which the Court found the seizure occurred, and the Court held that there was probable cause for the seizure at this juncture. http://www.ca9.uscourts.gov/datastore/opinions/2011/02/03/10-10036.pdf
In Re Discipline of Ferguson: The Court upheld a 90 suspension of Sandra Ferguson’s law license, finding that the disciplinary board’s imposition of that suspension in lieu of the 30 days recommended by the hearing officer was reasonable in light of the hearing officer’s findings that Ms. Ferguson appeared ex parte before a superior court judge in a contested matter without notice to opposing counsel, failed to disclose all relevant facts at an ex parte hearing, and obtained relief through misrepresentation and deceit in violation of the Rules of Professional Conduct. The Court reasoned that the enhanced suspension time was warranted in light of aggravating factors in this case. http://www.courts.wa.gov/opinions/pdf/2007198.opn.pdf
In his concurrence/dissent, Justice Alexander agreed with the suspension, but dissented with regard to the length, arguing that there was no justification for the Court’s downward departure from the ABA recommended suspension of 180 days. http://www.courts.wa.gov/opinions/pdf/2007198.ip1.pdf
Division One Court of Appeals:
State v. Mohamoud: The Court held that the deferred disposition statute, RCW 13.40.127, does not authorize the juvenile court to order a post-conviction deferred disposition on its own initiative. The Court concluded that the legislature did not intend to grant a juvenile court this type of authority, and the court in this case therefore lacked authority to order the deferred disposition in this case. In any case, the Court found that the deferred disposition would have been void because the trial court failed to follow all statutory requirements. The Court reversed and remanded for resentencing. http://www.courts.wa.gov/opinions/pdf/64958-2.pub.doc.pdf
Division Two Court of Appeals:
State v. Johnson: The Court found that a locomotive meets the definition of a “railway car” for the purposes of the burglary statute, and meets the statutory definition of a “building” for purposes of second degree burglary. Specifically, the Court found that the statutory definition of “building” includes “any…railway car,” a locomotive is therefore a railway car and a building. The Court also found that the trial court did not err in admitting a sales receipt found on Mr. Johnson at the time of his arrest showing that the prior day he had sold 105 pounds of copper wire to Valley Recycling. The court presumed that the trial court admitted the receipt as circumstantial evidence of Mr. Johnson’s motive or intent and instructed the jury on the limits of its use. As such, the Court concluded, the evidence was both relevant and admissible.
In her dissent, Judge Van Deren argued that the definition of “railway car” was ambiguous, as dicta in prior cases suggest that a locomotive is a “railway car,” however the ordinary dictionary definition of “railway car” does not encompass locomotive. Accordingly, the dissent would hold that whether a locomotive falls under the phrase “railway car” is subject to more than one reasonable interpretation and the rule of lenity should apply, with a holding that a locomotive is not a railway car under the burglary statute. Given this definition, there was insufficient evidence to find Mr. Johnson guilty of second degree burglary, and the case should have been dismissed. http://www.courts.wa.gov/opinions/pdf/39607-6.11.doc.pdf
Division Three Court of Appeals:
State v. Weber: The Court agreed with the superior court’s determination that the stop for speeding in this case did not support the district court’s legal conclusion that the stop was pretextual. The Court affirmed the superior court’s action in remanding the case for trial. The Court concluded that under Ladson, both a subjective intent of the officer and the reasonableness of the stop must be considered before finding a pretext and, in this case there was a reasonable stop with no improper motive, and therefore no basis for finding that the traffic stop was pretextual. http://www.courts.wa.gov/opinions/pdf/281922.opn.doc.pdf
In his dissent, Judge Sweeney argued that the superior court applied the wrong standard of review in this case, and improperly weighed the evidence, substituting its own judgment for that of the district court. The dissent argued that the test is not whether the appellate or superior courts would have found a different motive for the stop, but whether there is sufficient evidence, which if believed, would support the district court’s finding on the factual question of motive. The dissent posited that the standard was met in this case and the superior court’s decision should be reversed and the district court’s suppression order affirmed. http://www.courts.wa.gov/opinions/pdf/281922.dis.doc.pdf
Federal Law
Ninth Circuit Court of Appeals:
Stanley v. Cullen: Mr. Stanley filed an amended habeas petition in federal court asserting claims arising out of both the guilty and penalty phases of his arson and murder trial, including competency claims. The district court held that a biased juror rendered invalid the verdict of the competency jury and remanded to the state court to allow that court to determine whether it was feasible to conduct a retrial to decide whether Mr. Stanley was competent during his penalty phase trial. The district court denied all of Mr. Stanley’s guilt phase claims and held the remaining penalty phase claims in abeyance. Mr. Stanley appealed, contending that the state trial court’s failure to institute competency proceedings sua sponte during the guilt phase violated his right to procedural due process. Second, he contended that his trial counsel were ineffective for failing to investigate or raise the issue of his competency to stand trial during the guilt phase. Third, he contended that the district court improperly denied an evidentiary hearing on a claim that counsel were ineffective in failing to raise a diminished capacity defense during the guilt phase. Fourth, he contends that the district court acted improperly in remanding to the state court for a determination whether a retrial to decide Stanley’s competency during the penalty phase is feasible. Fifth, he contends that the district court acted improperly in holding in abeyance his remaining penalty phase claims pending the state court’s decision concerning the feasibility of a retrial, and possibly pending the retrial itself, on remand. Finally, he asks us to consider an uncertified claim that he was denied a full and fair hearing by the state courts on his motions to suppress evidence. The Court found that the district court’s decisions were reasonable, and declined to certify Mr. Stanley’s uncertified claim that he was denied a “full and fair” opportunity to litigate his Fourth Amendment search and seizure claims during the pretrial phase of his trial. http://www.ca9.uscourts.gov/datastore/opinions/2011/01/31/08-99026.pdf
United States v. Morris: The Court found that the government’s single plea offer in this case, in which it agreed not to file an amended information with an enhancement that would increase Mr. Morris’ sentence by ten years in exchange for a guilty plea and cooperation in an upcoming murder and drug dealing trial of a gang leader with whom Mr. Morris was associated, did not offend due process. The Court reversed the district court’s finding to the contrary, in which that court reasoned that the government’s tactics “short-circuited the truth-finding process” by requiring Mr. Morris to forfeit most of his rights from the start of the proceedings. The Court recognized that a give and take is required in the plea bargaining process, but found that this does not mean that the government “must engage in an extensive series of back-and-forth negotiations
for a plea offer to be valid.” The court concluded that “[t]here is nothing fundamentally wrong with the prosecution’s decision to present its best offer up front,” and that the government did not offend due process by extending a take it or leave it plea offer to Mr. Morris. http://www.ca9.uscourts.gov/datastore/opinions/2011/02/02/10-10009.pdf
United States v. Smith: The Court upheld Mr. Smith’s conviction for being a felon in possession of a firearm, upholding the district court’s decision to deny Mr. Smith’s motion to suppress the gun found on his person by a police officer. The Court found that Mr. Smith was not seized by the arresting officer after he crossed the street in front of the officer’s patrol car and the officer activated his siren, pulled to the curb, and ordered Mr. Smith to stand in front of the patrol car. Instead, Mr. Smith turned and ran, and was tackled and handcuffed by the officer. This is the point at which the Court found the seizure occurred, and the Court held that there was probable cause for the seizure at this juncture. http://www.ca9.uscourts.gov/datastore/opinions/2011/02/03/10-10036.pdf
Monday, January 31, 2011
CASE LAW UPDATE - JANUARY 31, 2011
Washington State Supreme Court:
State v. Irby: The Court affirmed the Court of Appeals’ decision to reverse Mr. Irby’s convictions for first degree murder with aggravating circumstances, first degree felony murder, and first degree burglary. The Court concluded that the trial court violated Mr. Irby’s rights under both the federal and state constitutions to be present at trial by conducting a portion of the jury selection process by e-mail in Mr. Irby’s absence. The Court further found that this error was not harmless. http://www.courts.wa.gov/opinions/pdf/826650.opn.pdf
In her dissent, Chief Justice Madsen, joined by Justices Charles Johnson, James Johnson, and Fairhurst, argued that the majority treats the “routine process” used for excusing several potential jurors as a critical stage of the trial. Instead, the dissent argued, the majority should have recognized that the trial court has broad discretion to excuse jurors for a range of reasons not pertaining to Mr. Irby’s case, and the distinction should have been made between excusing jurors for reasons not pertaining to Mr. Irby’s case and those relevant to his case. Further, the dissent argued that the fact Mr. Irby was not present for discussions between the court and counsel regarding whether to excuse jurors for reasons related to Mr. Irby’s case did not affect his ability to prepare for his defense, as a defendant’s right to be present at jury selection exists only if his presence would substantially relate to his ability to defend himself. Finally, the dissent argued that to the extent any juror was released for reasons related to the circumstances of Mr. Irby's trial, none of these potential jurors sat on Irby's jury. Therefore, if any error occurred in releasing these jurors, it was harmless error. http://www.courts.wa.gov/opinions/pdf/826650.no1.pdf
Division One Court of Appeals:
Personal Restraint of Heidari: The Court granted Mr. Heidari’s PRP, accepting the State’s concession that there was insufficient evidence as a matter of law to support his conviction for child molestation in the second degree and that there was a sentencing error on the conviction for rape of a child in the first degree. The Court declined, however, to grant the State’s request to remand for entry of judgment on the lesser included offense of attempted child molestation, holding that a remand for resentencing on the lesser included crime of attempt is precluded where the jury is not instructed on that crime. http://www.courts.wa.gov/opinions/pdf/63040-7.pub.doc.pdf
Division Three Court of Appeals:
State v. Acevedo: The court affirmed the trial court’s refusal to overturn Mr. Acevedo’s conviction for possession of a stolen motor vehicle, holding that a vehicle does not have to be operable or, indeed complete – this “vehicle” was purchased without a motor or transmission – to satisfy the elements of this crime. However, the Court found that the trial court improperly ordered restitution for the full value of the vehicle in its undamaged condition because that level of restitution appears unrelated to the crime for which Mr. Acevedo was convicted. The Court further held that the prohibition in Mr. Acevedo’s sentence against possession of deadly weapons was not crime related or authorized by statute, and remanded for resentencing and the setting of a modified restitution amount. http://www.courts.wa.gov/opinions/pdf/286339.cor.doc.pdf
Personal Restraint of Benavidez: The Court dismissed Mr. Benavidez’ PRP, finding meritless his contention that the amended information failed to notify him that he faced a firearm enhancement. The Court noted that the information advised Mr. Benavidez that he was charged with a crime and armed with a firearm while committing the crime, and that the information further cited the deadly weapon special verdict statute, all of which placed Mr. Benavidez on notice that he was charged with a deadly weapon enhancement. The court ruled that the judgment and sentence were facially valid, and the petition untimely and frivolous. http://www.courts.wa.gov/opinions/pdf/284433.opn.doc.pdf
State v. Smith: The Court affirmed the trial court’s modification of Mr. Smith’s sentence, finding such modification was appropriate when the sentence had originally included partial confinement, which option had been eliminated due to budget reductions. The Court found that this constituted an extraordinary circumstance that could not have been anticipated at the time of sentencing. The Court reasoned that the sentencing judge made clear that the partial confinement aspect was an important part of the sentence he had imposed, and a fundamental underpinning of the judge’s sentencing decision was changed and his sentencing objective thereby undermined. http://www.courts.wa.gov/opinions/pdf/287696.opn.doc.pdf
Federal Law
United States Supreme Court:
Swarthout v. Cooke: Mr. Cooke was sentenced by a California court to an indeterminate term of seven years to life after he was convicted of attempted first degree murder in 1991. He filed the instant writ of habeas corpus after the parole board determined in November 2002 that he was ineligible for parole based on the “especially cruel and callous manner” of his commitment offense his failure to participate fully in rehabilitative programs; his failure to develop marketable skills; and three incidents of misconduct while in prison. The board further dismissed Mr. Cooke’s favorable psychological report as not credible because it included several inconsistent and erroneous statements. His co-respondent in this petition, Mr. Clay, who had been convicted of first-degree murder in 1978, was in fact approved for parole in 2003, but that decision by the parole board was reversed by the governor. The governor cited the gravity of Mr. Clay’s crime, his extensive criminal history, his failure to participate fully in self-help programs, and his unrealistic plans for employment and housing after being paroled, which increased his chances of recidivism. The Ninth Circuit Court of Appeals reversed both decisions, finding that there was insufficient evidence to support the denial in both cases. In a Per Curiam opinion, the Supreme Court denied certiorari, but reversed the Ninth Circuit, finding that the Court misapplied the law in its holding. The court observed that a federal court may issue a writ of habeas corpus to a state prisoner “only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States,” which was not the case here. The Court further observed that, though Mr. Cook and Mr. Clay were deprived of a liberty interest, the procedures followed by the State were constitutionally sufficient. However, rather than stopping its inquiry at that point, the Ninth Circuit, the Court reasoned, had reviewed the state courts’ decisions on the merits. “The short of the matter,” the Court concluded, “is that the responsibility for assuring that the constitutionally adequate procedures governing California’s parole system are properly applied rests with California courts, and is no part of the Ninth Circuit’s business.”
In her concurrence, Justice Ginsberg pointed out that California only requires “some evidence,” to support a parole denial, unlike other states, which require prisoners to meet specified criteria. The concurrence therefore agreed with the majority decision.
http://www.supremecourt.gov/opinions/10pdf/10-333.pdf
Ninth Circuit Court of Appeals:
United States v Munoz-Camarena: The court withdrew its September 3, 2010 opinion in this case and granted Mr. Munoz-Camarena’s petition for re-hearing in part. Specifically, the Court ordered the district court to re-calculate Mr. Munoz-Camarena’s sentence in light of the intervening United States Supreme Court holding in Carachuri-Rosendo v. Holder, which casts doubt on the district court’s calculation of the recommended Guidelines sentence in this case. The court found that the district court should have applied a four-level enhancement rather than an eight-level enhancement that was applied for an aggravated felony, as the prior convictions do not constitute aggravated felonies. http://www.ca9.uscourts.gov/datastore/opinions/2011/01/28/09-50088.pdf
United States v. Lichtenberg: The court affirmed Mr. Lichtenberg’s 112-month sentence for wire fraud, money laundering, and making a false statement in connection with a passport application. The Court found that the above-Guidelines sentence properly took into account facts of a different nature than those required for an enhancement under the Guidelines. The court also found that the district court identified a need for a lengthy sentence to prevent Mr. Lichtenberg from profiting from the crime by moving outside the United States to live comfortably off the money he had stolen, much of which had not been recovered. The Court finally found meritless Mr. Lichtenberg’s argument that the sentence was above and beyond that normally imposed for similar crimes. http://www.ca9.uscourts.gov/datastore/opinions/2011/01/27/09-10191.pdf
United States v. Leyva-Martinez: The Court affirmed Mr. Leyva-Martinez’ 70-month sentence for illegal re-entry after deportation. The Court deemed proper the 16-level sentencing enhancement, finding that his prior conviction for inflicting corporal injury on a spouse or co-habitant is plainly a crime of violence. The Court further ruled that Almendarez-Torres v. United States, which permits enhancement based on the existence of a prior felony, has never been overruled by the Supreme Court, and Mr. Leyva-Martinez’ prior convictions need not be proven beyond a reasonable doubt. http://www.ca9.uscourts.gov/datastore/opinions/2011/01/27/10-50269.pdf
United States v. Jenkins: The Court upheld Mr. Jenkins’ and co-defendant Mr. Gentry’s convictions on multiple counts of securities fraud, wire fraud, international concealment money laundering, concealment money laundering, transactional money laundering, as well as one count of tax evasion and conspiracy to defraud the United States and commit wire fraud, securities fraud, and mail fraud. The Court found that the statute of limitations had not expired before the indictment was filed, that there was sufficient evidence to support the convictions on all counts, that the jury’s instructions on money laundering were proper, and that the district court did not err at sentencing in calculating the amount of loss and number of victims. The Court further found that Mr. Jenkins’s sentence was reasonable, and that the district court properly denied Mr. Gentry’s motion to sever his trial from Mr. Jenkins’, and that the district court properly denied Mr. Gentry’s motion for additional cross-examination of a government witness. http://www.ca9.uscourts.gov/datastore/opinions/2011/01/25/09-10109.pdf
United States v. Carothers: The Court found that neither the Double Jeopardy Clause nor Mr. Carothers’ decision to elect a Jackson instruction on the lesser included offense of simple possession posed a barrier to a retrial of Mr. Carothers for possession with intent to distribute. The district court’s error in the verdict form that did not allow the jury to report its unanimous verdict on simple possession along with its deadlock on intent to distribute in this case was compounded when the court ordered a mistrial on both the greater offense and the lesser included and, when it realized the error, dismissed the indictment concluding that Jackson and Double Jeopardy barred re-trial. The court reversed on the government’s motion and remanded for a new trial. http://www.ca9.uscourts.gov/datastore/opinions/2011/01/24/10-50191.pdf
United States v. Gonzalez-Diaz: The Court affirmed Mr. Gonzalez-Diaz’ conviction for being found in the United States, ruling that the fact that Mr. Gonzalez-Diaz entered Canada a day before he was “found” in this country, and was in the company of the authorities upon re-entry did not bar his prosecution for this offense. The Court reasoned that Mr. Gonzalez-Diaz never legally entered Canada, and was in custody the entire time he was on Canadian soil. Therefore, the Court concluded, he remained in the United States until found there on the date of his arrest. Because Mr. Gonzalez-Diaz was not entering the United States from a foreign country, the Court held, the official restraint doctrine does not apply. http://www.ca9.uscourts.gov/datastore/opinions/2011/01/24/10-30002.pdf
United States v. Burgum: The Court vacated Mr. Burgum’s 180-month sentence following his guilty plea to two counts of armed bank robbery. The Court found that the district court’s sentence was not improperly based on the statutory maximum and was not substantively unreasonable. However, the Court found that the district court relied on Mr. Burgum’s inability to pay restitution as an aggravating factor in imposing the sentence, an action that constituted plain error affecting substantial rights that compromised the fairness and integrity of the sentencing hearing.
Judge O’Scannlain dissented, arguing that when viewed in the context of the sentencing as a whole, it was clear that the district court judge upwardly departed from the sentencing guidelines because of the violent nature of the robberies of which Mr. Burgum was convicted, and that the judge’s reference to unlikely restitution “was an incidental observation that did not affect the sentence.” http://www.ca9.uscourts.gov/datastore/opinions/2011/01/25/09-50449.pdf
United States v. Potter: The Court affirmed Mr. Potter’s conviction for possession of a firearm in furtherance of drug trafficking. The Court found that the statute was not unconstitutional on its face or as applied, and does not violate the Second Amendment. In so holding, the Court reasoned that the personal right to bear arms in one’s home extends only to the lawful possession and use of a firearm, not the unlawful use of such a weapon in furtherance of drug trafficking. http://www.ca9.uscourts.gov/datastore/opinions/2011/01/26/09-30266.pdf
State v. Irby: The Court affirmed the Court of Appeals’ decision to reverse Mr. Irby’s convictions for first degree murder with aggravating circumstances, first degree felony murder, and first degree burglary. The Court concluded that the trial court violated Mr. Irby’s rights under both the federal and state constitutions to be present at trial by conducting a portion of the jury selection process by e-mail in Mr. Irby’s absence. The Court further found that this error was not harmless. http://www.courts.wa.gov/opinions/pdf/826650.opn.pdf
In her dissent, Chief Justice Madsen, joined by Justices Charles Johnson, James Johnson, and Fairhurst, argued that the majority treats the “routine process” used for excusing several potential jurors as a critical stage of the trial. Instead, the dissent argued, the majority should have recognized that the trial court has broad discretion to excuse jurors for a range of reasons not pertaining to Mr. Irby’s case, and the distinction should have been made between excusing jurors for reasons not pertaining to Mr. Irby’s case and those relevant to his case. Further, the dissent argued that the fact Mr. Irby was not present for discussions between the court and counsel regarding whether to excuse jurors for reasons related to Mr. Irby’s case did not affect his ability to prepare for his defense, as a defendant’s right to be present at jury selection exists only if his presence would substantially relate to his ability to defend himself. Finally, the dissent argued that to the extent any juror was released for reasons related to the circumstances of Mr. Irby's trial, none of these potential jurors sat on Irby's jury. Therefore, if any error occurred in releasing these jurors, it was harmless error. http://www.courts.wa.gov/opinions/pdf/826650.no1.pdf
Division One Court of Appeals:
Personal Restraint of Heidari: The Court granted Mr. Heidari’s PRP, accepting the State’s concession that there was insufficient evidence as a matter of law to support his conviction for child molestation in the second degree and that there was a sentencing error on the conviction for rape of a child in the first degree. The Court declined, however, to grant the State’s request to remand for entry of judgment on the lesser included offense of attempted child molestation, holding that a remand for resentencing on the lesser included crime of attempt is precluded where the jury is not instructed on that crime. http://www.courts.wa.gov/opinions/pdf/63040-7.pub.doc.pdf
Division Three Court of Appeals:
State v. Acevedo: The court affirmed the trial court’s refusal to overturn Mr. Acevedo’s conviction for possession of a stolen motor vehicle, holding that a vehicle does not have to be operable or, indeed complete – this “vehicle” was purchased without a motor or transmission – to satisfy the elements of this crime. However, the Court found that the trial court improperly ordered restitution for the full value of the vehicle in its undamaged condition because that level of restitution appears unrelated to the crime for which Mr. Acevedo was convicted. The Court further held that the prohibition in Mr. Acevedo’s sentence against possession of deadly weapons was not crime related or authorized by statute, and remanded for resentencing and the setting of a modified restitution amount. http://www.courts.wa.gov/opinions/pdf/286339.cor.doc.pdf
Personal Restraint of Benavidez: The Court dismissed Mr. Benavidez’ PRP, finding meritless his contention that the amended information failed to notify him that he faced a firearm enhancement. The Court noted that the information advised Mr. Benavidez that he was charged with a crime and armed with a firearm while committing the crime, and that the information further cited the deadly weapon special verdict statute, all of which placed Mr. Benavidez on notice that he was charged with a deadly weapon enhancement. The court ruled that the judgment and sentence were facially valid, and the petition untimely and frivolous. http://www.courts.wa.gov/opinions/pdf/284433.opn.doc.pdf
State v. Smith: The Court affirmed the trial court’s modification of Mr. Smith’s sentence, finding such modification was appropriate when the sentence had originally included partial confinement, which option had been eliminated due to budget reductions. The Court found that this constituted an extraordinary circumstance that could not have been anticipated at the time of sentencing. The Court reasoned that the sentencing judge made clear that the partial confinement aspect was an important part of the sentence he had imposed, and a fundamental underpinning of the judge’s sentencing decision was changed and his sentencing objective thereby undermined. http://www.courts.wa.gov/opinions/pdf/287696.opn.doc.pdf
Federal Law
United States Supreme Court:
Swarthout v. Cooke: Mr. Cooke was sentenced by a California court to an indeterminate term of seven years to life after he was convicted of attempted first degree murder in 1991. He filed the instant writ of habeas corpus after the parole board determined in November 2002 that he was ineligible for parole based on the “especially cruel and callous manner” of his commitment offense his failure to participate fully in rehabilitative programs; his failure to develop marketable skills; and three incidents of misconduct while in prison. The board further dismissed Mr. Cooke’s favorable psychological report as not credible because it included several inconsistent and erroneous statements. His co-respondent in this petition, Mr. Clay, who had been convicted of first-degree murder in 1978, was in fact approved for parole in 2003, but that decision by the parole board was reversed by the governor. The governor cited the gravity of Mr. Clay’s crime, his extensive criminal history, his failure to participate fully in self-help programs, and his unrealistic plans for employment and housing after being paroled, which increased his chances of recidivism. The Ninth Circuit Court of Appeals reversed both decisions, finding that there was insufficient evidence to support the denial in both cases. In a Per Curiam opinion, the Supreme Court denied certiorari, but reversed the Ninth Circuit, finding that the Court misapplied the law in its holding. The court observed that a federal court may issue a writ of habeas corpus to a state prisoner “only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States,” which was not the case here. The Court further observed that, though Mr. Cook and Mr. Clay were deprived of a liberty interest, the procedures followed by the State were constitutionally sufficient. However, rather than stopping its inquiry at that point, the Ninth Circuit, the Court reasoned, had reviewed the state courts’ decisions on the merits. “The short of the matter,” the Court concluded, “is that the responsibility for assuring that the constitutionally adequate procedures governing California’s parole system are properly applied rests with California courts, and is no part of the Ninth Circuit’s business.”
In her concurrence, Justice Ginsberg pointed out that California only requires “some evidence,” to support a parole denial, unlike other states, which require prisoners to meet specified criteria. The concurrence therefore agreed with the majority decision.
http://www.supremecourt.gov/opinions/10pdf/10-333.pdf
Ninth Circuit Court of Appeals:
United States v Munoz-Camarena: The court withdrew its September 3, 2010 opinion in this case and granted Mr. Munoz-Camarena’s petition for re-hearing in part. Specifically, the Court ordered the district court to re-calculate Mr. Munoz-Camarena’s sentence in light of the intervening United States Supreme Court holding in Carachuri-Rosendo v. Holder, which casts doubt on the district court’s calculation of the recommended Guidelines sentence in this case. The court found that the district court should have applied a four-level enhancement rather than an eight-level enhancement that was applied for an aggravated felony, as the prior convictions do not constitute aggravated felonies. http://www.ca9.uscourts.gov/datastore/opinions/2011/01/28/09-50088.pdf
United States v. Lichtenberg: The court affirmed Mr. Lichtenberg’s 112-month sentence for wire fraud, money laundering, and making a false statement in connection with a passport application. The Court found that the above-Guidelines sentence properly took into account facts of a different nature than those required for an enhancement under the Guidelines. The court also found that the district court identified a need for a lengthy sentence to prevent Mr. Lichtenberg from profiting from the crime by moving outside the United States to live comfortably off the money he had stolen, much of which had not been recovered. The Court finally found meritless Mr. Lichtenberg’s argument that the sentence was above and beyond that normally imposed for similar crimes. http://www.ca9.uscourts.gov/datastore/opinions/2011/01/27/09-10191.pdf
United States v. Leyva-Martinez: The Court affirmed Mr. Leyva-Martinez’ 70-month sentence for illegal re-entry after deportation. The Court deemed proper the 16-level sentencing enhancement, finding that his prior conviction for inflicting corporal injury on a spouse or co-habitant is plainly a crime of violence. The Court further ruled that Almendarez-Torres v. United States, which permits enhancement based on the existence of a prior felony, has never been overruled by the Supreme Court, and Mr. Leyva-Martinez’ prior convictions need not be proven beyond a reasonable doubt. http://www.ca9.uscourts.gov/datastore/opinions/2011/01/27/10-50269.pdf
United States v. Jenkins: The Court upheld Mr. Jenkins’ and co-defendant Mr. Gentry’s convictions on multiple counts of securities fraud, wire fraud, international concealment money laundering, concealment money laundering, transactional money laundering, as well as one count of tax evasion and conspiracy to defraud the United States and commit wire fraud, securities fraud, and mail fraud. The Court found that the statute of limitations had not expired before the indictment was filed, that there was sufficient evidence to support the convictions on all counts, that the jury’s instructions on money laundering were proper, and that the district court did not err at sentencing in calculating the amount of loss and number of victims. The Court further found that Mr. Jenkins’s sentence was reasonable, and that the district court properly denied Mr. Gentry’s motion to sever his trial from Mr. Jenkins’, and that the district court properly denied Mr. Gentry’s motion for additional cross-examination of a government witness. http://www.ca9.uscourts.gov/datastore/opinions/2011/01/25/09-10109.pdf
United States v. Carothers: The Court found that neither the Double Jeopardy Clause nor Mr. Carothers’ decision to elect a Jackson instruction on the lesser included offense of simple possession posed a barrier to a retrial of Mr. Carothers for possession with intent to distribute. The district court’s error in the verdict form that did not allow the jury to report its unanimous verdict on simple possession along with its deadlock on intent to distribute in this case was compounded when the court ordered a mistrial on both the greater offense and the lesser included and, when it realized the error, dismissed the indictment concluding that Jackson and Double Jeopardy barred re-trial. The court reversed on the government’s motion and remanded for a new trial. http://www.ca9.uscourts.gov/datastore/opinions/2011/01/24/10-50191.pdf
United States v. Gonzalez-Diaz: The Court affirmed Mr. Gonzalez-Diaz’ conviction for being found in the United States, ruling that the fact that Mr. Gonzalez-Diaz entered Canada a day before he was “found” in this country, and was in the company of the authorities upon re-entry did not bar his prosecution for this offense. The Court reasoned that Mr. Gonzalez-Diaz never legally entered Canada, and was in custody the entire time he was on Canadian soil. Therefore, the Court concluded, he remained in the United States until found there on the date of his arrest. Because Mr. Gonzalez-Diaz was not entering the United States from a foreign country, the Court held, the official restraint doctrine does not apply. http://www.ca9.uscourts.gov/datastore/opinions/2011/01/24/10-30002.pdf
United States v. Burgum: The Court vacated Mr. Burgum’s 180-month sentence following his guilty plea to two counts of armed bank robbery. The Court found that the district court’s sentence was not improperly based on the statutory maximum and was not substantively unreasonable. However, the Court found that the district court relied on Mr. Burgum’s inability to pay restitution as an aggravating factor in imposing the sentence, an action that constituted plain error affecting substantial rights that compromised the fairness and integrity of the sentencing hearing.
Judge O’Scannlain dissented, arguing that when viewed in the context of the sentencing as a whole, it was clear that the district court judge upwardly departed from the sentencing guidelines because of the violent nature of the robberies of which Mr. Burgum was convicted, and that the judge’s reference to unlikely restitution “was an incidental observation that did not affect the sentence.” http://www.ca9.uscourts.gov/datastore/opinions/2011/01/25/09-50449.pdf
United States v. Potter: The Court affirmed Mr. Potter’s conviction for possession of a firearm in furtherance of drug trafficking. The Court found that the statute was not unconstitutional on its face or as applied, and does not violate the Second Amendment. In so holding, the Court reasoned that the personal right to bear arms in one’s home extends only to the lawful possession and use of a firearm, not the unlawful use of such a weapon in furtherance of drug trafficking. http://www.ca9.uscourts.gov/datastore/opinions/2011/01/26/09-30266.pdf
Monday, January 24, 2011
By K.C. Mehaffey
World staff writer
Saturday, January 22, 2011
OKANOGAN — John Novak is in a fight with the law over what he believes is his right to grow medical marijuana for himself and another medical marijuana patient at his remote Okanogan County home.
He’s hoping the battle doesn’t turn out the way it did for the guy in his dad’s hit song, “I fought the law.”
Novak, 45, says he is the son of the late Bobby Fuller, best known for the 1965 top-ten single with the familiar refrain that ends “and the law won.”
But in his case, Novak says, the law is on his side. If a judge doesn’t dismiss the criminal charges against him next week, he thinks a jury will see it his way when his case goes to trial Feb. 1.
Full story at:
Wenatchee World - Medical Marijuana
World staff writer
Saturday, January 22, 2011
OKANOGAN — John Novak is in a fight with the law over what he believes is his right to grow medical marijuana for himself and another medical marijuana patient at his remote Okanogan County home.
He’s hoping the battle doesn’t turn out the way it did for the guy in his dad’s hit song, “I fought the law.”
Novak, 45, says he is the son of the late Bobby Fuller, best known for the 1965 top-ten single with the familiar refrain that ends “and the law won.”
But in his case, Novak says, the law is on his side. If a judge doesn’t dismiss the criminal charges against him next week, he thinks a jury will see it his way when his case goes to trial Feb. 1.
Full story at:
Wenatchee World - Medical Marijuana
Case Law Update 1.24.11
Washington State Supreme Court:
State v. Barber: The court overruled State v. Miller to the extent that decision calls for specific performance of a plea agreement that would bind the court to impose a sentence that is contrary to law; in this case, a plea agreement that failed to include a statutorily mandated term of community custody. The Court limited the remedy of specific performance to the situation in which the State breaches its promise to make a specific charging decision or recommendation to the sentencing court. http://www.courts.wa.gov/opinions/pdf/836400.opn.pdf
State v. Schultz: In a plurality opinion authored by Justice Chambers and joined by Justices Sanders, Stephens, James Johnson and Charles Johnson, the Court overturned Ms. Schultz’ conviction for possession of illegal substances. Here, the State claimed entry was proper under the emergency exception when police had a report of yelling in an apartment and heard only raised voices, including a man saying he needed his space prior to knocking on the door. After contacting Ms. Schultz, who initially denied that there was anyone else in the apartment and then called a male out of his room, police entered the apartment based only on Ms. Schultz’ acquiescence to their entry. The Court held that these facts were insufficient to support entry under the emergency exception. In so doing, the Court made modifications to the test under which the emergency aid exception may be applied. The Court further held that the likelihood of domestic violence may be considered by courts when evaluating whether the requirements of the emergency aid exception to the warrant requirement have been satisfied, and further – and more importantly – specifically found that “mere acquiescence to an officer’s entry is not consent and not an exception to our state’s constitutional protection of the privacy of the home.” http://www.courts.wa.gov/opinions/pdf/822387.opn.pdf
In her dissent, Justice Fairhurst, joined by Justices Madsen, Alexander, and Owens, argued that the majority altered the three part test for the finding of entry under the emergency aid exception, and adopted new, unnecessary factors to add to the test. The dissent further argued that under the original three factors, the application of the emergency aid exception should stand and the conviction should have been affirmed. http://www.courts.wa.gov/opinions/pdf/822387.no1.pdf
Disciplinary Proceeding Against J. David Smith: The court held that a rule 10.14(c) of the Rules of Enforcement of Lawyer Conduct (ELC), which provides that a civilian criminal conviction is conclusive evidence of the underlying misconduct at an attorney disciplinary proceeding, does not violate state and federal constitutional requirements. Mr. Smith was disbarred, as recommended by the hearing officer. http://www.courts.wa.gov/opinions/pdf/2007481.opn.pdf
Disciplinary Proceeding Against Paul King: Mr. King, who pled guilty to federal mail fraud, challenged the subsequent disbarment recommendation, arguing that the proceedings against him were unfair, that disciplinary counsel should have been disqualified, that the hearing officer failed to follow hearing rules with regard to settlement of the hearing transcript, and that Mr. King’s guilty plea should not be binding where he was not permitted to enter an Alford plea. The court found Mr. Kings’ disbarment warranted and his arguments against such action meritless. http://www.courts.wa.gov/opinions/pdf/2007619.opn.pdf
Division One Court of Appeals:
State v. Miles: The Court remanded this case for further proceedings, finding that the trial court improperly decided that evidence found in a search warrant for Mr. Miles’ bank records that was related to a complaint filed against Mr. Miles with the Securities Division of the Department of Financial Institutions was suppressible. The Court found that the trial court improperly applied the independent source exception, under which an unlawful search does not invalidate a subsequent search if (1) the issuance of the search warrant is based on untainted, independently obtained information, and (2) the State's decision to seek the warrant is not motivated by the previous unlawful search and seizure. Because there was no dispute that the search warrant application in this case was based on untainted evidence and did not contain any information learned from the illegal search and seizure, it was not clear that the trial court used the correct legal standard in analyzing the independent source exception, and the court did not address the question of whether the State's decision to seek the warrant was motivated by evidence obtained in the previous unlawful search, the Court remanded. http://www.courts.wa.gov/opinions/pdf/61474-6.pub.doc.pdf
State v. Williams: The Court found that Mr. Williams’ rights were not violated by the imposition of an exceptional sentence that did not exceed the statutory maximum when there had been a jury finding that Mr. Williams committed the crime under aggravating circumstances. The Court further found that Mr. Williams additional claims of error were unpersuasive, including a claim that the trial court denied him due process when it did not reinstruct the jury on the “presumption of innocence” during the aggravating circumstances portion of the trial and a claim that the trial court erred in denying his motion for a retrial based on spectator misconduct. http://www.courts.wa.gov/opinions/pdf/63213-2.pub.doc.pdf
State v. Winkle: The Court affirmed Mr. Winkle’s sentence for convictions on two counts of rape of a child in the third degree. The trial court had imposed a term of 60 months, the statutory maximum for this offense, and a term of community custody for earned early release limited to the statutory maximum. The court found that the sentence was in line with recent amendments to the SRA, which prohibits a term of confinement and a term of community custody in excess of the statutory maximum, as the SRA in any event requires that a defendant convicted of a sex offense must be transferred to community custody in lieu of earned early release, and the court specifically mandated that the sentence imposed would not exceed the statutory maximum sentence. http://www.courts.wa.gov/opinions/pdf/64367-3.pub.doc.pdf
State v. Brown: The Court affirmed Mr. Brown’s convictions, finding that the trial court correctly found that multiple no contact order violations based on contact on separate days did not violate double jeopardy, and that the trial court properly declined to give a Petrich instruction because Mr. Brown engaged in a continuing course of conduct. Further, the Court found that no prejudice resulted when the State argued that Mr. Brown’s alibi was not credible, and that Mr. Brown received effective assistance of counsel because his counsel’s performance was not deficient. Finally, the Court found that Mr. Brown’s argument that the State failed to prove underlying criminal conduct fails under Bunker. http://www.courts.wa.gov/opinions/pdf/63607-3.cor.doc.pdf
Detention of Ticeson: The Court affirmed Mr. Ticeson’s sexually violent predator commitment, finding that, as he is not a criminal defendant, Mr. Ticeson has no rights under article 1, section 22 of the Washington Constitution and therefore the trial court’s failure to require a jury unanimity as to whether Mr. Ticeson suffered from a mental abnormality and/or personality disorder which made him likely to engage in predatory acts of sexual violence if not confined to a secure facility. Further, the Court found that the court’s in-chambers conferences dealing with purely legal matters did not violate Mr. Ticeson’s right to an open proceeding. http://www.courts.wa.gov/opinions/pdf/63122-5.pub.doc.pdf
Division Two Court of Appeals:
State v. McKague: The Court upheld Mr. McKague’s convictions for third degree theft and second degree assault, as well as his lifetime sentence as a persistent offender. The Court found that the trial court properly exercised its discretion in declining to accept Mr. McKague’s request to waive a jury, that there was sufficient evidence of substantial bodily harm to support his second degree assault conviction, that the to convict instruction for second degree assault did not create an impermissible presumption that relieved the State of its burden of proof, that he was not denied ineffective assistance of counsel when his attorney withdrew a proposed instruction on an inferior degree offense, and that the fact that a judge rather than a jury found the existence of his prior convictions by a preponderance of the evidence rather than beyond a reasonable doubt did not violate his due process and equal protection rights.
In his partial concurrence and partial dissent, Judge Armstrong disagreed with the lead opinion’s conclusion that the evidence was sufficient to uphold a conviction for second degree assault, arguing that the lead opinion erroneously applied the definition of substantial bodily harm, and that the bruising in this case was did not meet that definition.
In her partial concurrence and partial dissent, Judge Quinn-Brintnall agreed that the trial court properly refused Mr. McKague’s bench trial request, that the jury instructions and the evidence properly support the jury verdict finding Mr. McKague guilty of second degree assault, and concurred that Mr. McKague's convictions should be affirmed. However, Judge Quinn-Brintnall argued that Judge Armstrong’s stated concern about the improper use of expert testimony to support the lead opinion's second degree assault sufficiency analysis is unfounded. Further, the concurrence/dissent argued that the lead opinion failed to comply with constitutional principles articulated in Apprendi and Blakely when it held that Mr. McKague was not entitled to have a jury find him a persistent offender beyond a reasonable doubt before being sentenced to life without possibility of parole. Judge Quinn-Brintnall argued that under Blakely, a trial court sitting without a jury may not constitutionally sentence a defendant to life without the possibility of parole on a class B felony that otherwise carries a maximum term of 10 years.
The lead opinion and both dissents/concurrences may be found at: http://www.courts.wa.gov/opinions/pdf/39087-6.11.doc.pdf
State v. Rice: The Court ruled that RCW 9.94A.835, .836, and .837, which involve special allegations of sexual motivation, predation, and a victim under 15 years of age, respectively, did not violate the separation of powers doctrine, did not improperly involve the trial court in plea bargaining, and did not violate due process or Eighth Amendment rights. Further, the Court held that a sentencing enhancement that mirrored and element in Ms. Rice’s underling crime (that the victim was under 15 years of age) did not violate double jeopardy, and that Ms. Rice’s sentence was not illegal. http://www.courts.wa.gov/opinions/pdf/39600-9.11.doc.pdf
State v. Bluehorse: The Court affirmed Mr. Bluehorse’s conviction for drive-by shooting but reversed his exceptional sentence based on a gang aggravator, finding that the trial court failed to base the sentence on substantial and compelling facts based on the jury’s verdict finding Mr. Bluehorse guilty of drive-by shooting with a gang aggravator. Rather, the court found that the sentence was imposed in an attempt to achieve parity with Mr. Bluehorse’s co-defendant’s standard range sentence for first degree assault based on his offender score, and violated the real facts doctrine. The Court found meritless, however, Mr. Bluehorse’s remaining contentions, that his right to public trial was violated, that the prosecution was vindictive, that his motions for a mistrial should have been granted, that the trial court should not have granted a two-month recess during the trial despite the fact it was agreed to by all parties, that the state erroneously used police reports to refresh witness’ memories, and that the cumulative errors deprived him of a fair trial. http://www.courts.wa.gov/opinions/pdf/38328-4.11.doc.pdf
Division Three Court of Appeals:
State v. Brown: The Court found that Mr. Brown’s attorney’s failure to research and advise him of the pendency of Arizona v. Gant, which Mr. Brown claimed would have required suppression of evidence against him, did not constitute ineffective assistance of counsel. The Court reasoned that to adopt Mr. Brown’s suggested standard, which would have required defense counsel to perform computer research to determine that the opinion was pending and that the lower court’s holding was on point and favorable to his position “would place an unreasonable burden on defense counsel and set a standard for diligence that obliges counsel to raise issues in anticipation of any possible change in the law. The burden on defense counsel would be especially onerous in the plea bargain context, because the consequence of a mistaken prediction could be far more adverse than time and effort spent on a failed argument -- it could be the lost offer of a favorable plea.” http://www.courts.wa.gov/opinions/pdf/284301.opn.doc.pdf
State v. Castro: The court found that the trial court’s decision of pretrial motions on legal matters in chambers with a later statement regarding those decisions in open court with an invitation to counsel to object did not violate Mr. Castro’s constitutional right to a public trial. The Court found that the matters decided did not involve any fact finding required to be open to the public, and the trial court was therefore not required to engage in a Bone-Club analysis prior to deciding the matters in chambers. http://www.courts.wa.gov/opinions/pdf/288854.opn.doc.pdf
Federal Law
Ninth Circuit Court of Appeals:
United States v. Liu: The Court affirmed Mr. Liu’s convictions for conspiracy to import, transfer, and sell high quality counterfeit United States currency. The Court found that Mr. Liu’s speedy trial rights were not violated, as the speedy trial clock restarted when his wife was added to the case as a co-defendant. The Court further found that the district court did not err in failing to give a multiple conspiracy jury instruction because there was no potential for spillover guilt in this case, and likewise did not error when it failed to give a specific unanimity jury instruction as there was no proof the omission affected his substantial rights. http://www.ca9.uscourts.gov/datastore/opinions/2011/01/21/09-10136.pdf
United States v. Begay: The Court found that there was sufficient evidence to establish premeditation in support of Mr. Begay’s convictions for first degree murder, and upheld the two convictions. Specifically, the Court found that evidence that Mr. Begay had stopped near an unknown vehicle on the highway, gotten out and walked to the vehicle, where he spoke briefly to the occupants, and then returned to his truck and retrieved a gun, which he used to shoot both occupants of the car, gave him time to formulate a purpose and plan to kill the occupants of the other vehicle.
Judge Reinhardt, joined by Judge Berzon, dissented, arguing that the minimal facts set forth by the majority in its opinion failed to establish premeditation, as there was no evidence that Mr. Began reflected upon, planned, or otherwise premeditated the killing. http://www.ca9.uscourts.gov/datastore/opinions/2011/01/12/07-10487.pdf
United States v. Basher: The Court upheld Mr. Basher’s conviction for illegal discharge of a firearm on park lands. The court found that the officers’ interaction with Mr. Basher in this case was a valid Terry encounter, and that Mr. Basher’s Fifth Amendment rights were not violated. The Court further held that Mr. Basher’s Fourth Amendment rights were not violated, as he consented to the retrieval of the shotgun from his tent. Finally, the Court found that the area of a campsite outside of a tent in these circumstances is not curtilage. http://www.ca9.uscourts.gov/datastore/opinions/2011/01/20/09-30311.pdf
Miller v. Oregon Board of Parole: The Court held that Oregon’s aggravated murder review statute creates a federally-protected liberty interest in early parole eligibility, and the Due Process Clause requires that the Board of Parole’s determinations be supported by “substantial evidence” as that standard is defined under Oregon law. In this case, the Court found that the Board’s denial of relief at the conclusion of Mr. Miller’s murder review hearing did not violate his due process rights and was not an unreasonable application of clearly established federal law as determined by the United States Supreme Court. Therefore, the Court found that Mr. Miller was not entitled to habeas corpus relief. http://www.ca9.uscourts.gov/datastore/opinions/2011/01/18/07-36086.pdf
United States v. Doss: Mr. Doss appealed his conviction and life sentence for sex trafficking of children, transportation of minors into prostitution, conspiracy to commit those offenses, and two counts of witness tampering. The Court found that a conviction for witness tampering is proper when the defendant was found to have encouraged a witness to withhold testimony when that witness possessed a legal right or privilege not to testify. However, the Court vacated the sentence and remanded as to several counts, directing the district court to determine whether the victim in Mr. Doss’ prior sex offense conviction was a minor by a reasonable doubt standard instead of the modified categorical approach used by the district court. http://www.ca9.uscourts.gov/datastore/opinions/2011/01/14/07-50334.pdf
United States v. Lindsey: The Court held that the proper remedy for a good faith, erroneous denial of a defendant’s peremptory challenge is not automatic reversal under United States v. Annigoni, but a review for plan error under Rivera v. Illinois, which the Court found effectively overruled Annigoni. The Court found in this case, where defense counsel did not object when the Court stated that it had no further peremptory challenges and did not attempt to exercise its final challenge, there was no plain error and Mr. Lindsey’s conviction should stand.
In a concurrence, Judge Pregerson wrote separately agreeing with the plain error standard of review but arguing that the case could be resolved without deciding whether Rivera overruled Annigoni, as Annigoni is inapposite to this case, where there was a good faith error, as opposed to Annigoni, where the defendant was actively prevented by the district court from exercising a peremptory challenge. http://www.ca9.uscourts.gov/datastore/opinions/2011/01/14/09-50459.pdf
Perez v. Cate: The Court held that the fee caps under The Prison Litigation Reform Act (PLRA) of 150% of the “rate established” by the Criminal Justice Act “for payment of court-appointed counsel” also applies to separately billed paralegal fees under the holding in Missouri v. Jenkins.
http://www.ca9.uscourts.gov/datastore/opinions/2011/01/13/09-17185.pdf
Lopez v. Ryan: The court affirmed the district court’s denial of Mr. Lopez’ petition for a writ of habeas corpus challenging his capital sentence for first degree murder. The Court found that Mr. Lopez was given an individualized sentencing determination at which the sentencing court considered all mitigating evidence and found no leniency was warranted. The Court further found that Mr. Lopez received effective assistance of counsel, as there was no showing of error in counsel’s failure to provide the expert with eyewitness testimony caused him prejudice. Finally, the Court found no merit in Mr. Lopez’ Brady claim, reasoning that a note that was not disclosed by the government was not “material” for Brady purposes, as it included legal opinions and facts cumulative of information available in previously release police reports. Further, there was no evidence that the failure to disclose the note caused prejudice to Mr. Lopez. http://www.ca9.uscourts.gov/datastore/opinions/2011/01/20/08-99021.pdf
United States Supreme Court:
Harrington v. Richter: In an opinion authored by Justice Kennedy and joined by Chief Justice Robert and Justices Scalia, Thomas, Breyer, Alito, and Sotomayor, the Court held that Mr. Harrington’s habeas petition asserting ineffective assistance of counsel pursuant to Strickland v. Washington should be denied under 28 U. S. C. §2254(d)—which, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), limits the availability of federal habeas relief for claims previously “adjudicated on the merits” in state court. The Court found that this section applied to Mr. Richter’s petition despite the fact that the State Supreme Court issued only a summary denial, as Mr. Richter did not show that there was no reasonable basis for the state court to deny relief, nor did he demonstrate that there was a more likely explanation for the state court’s decision. The Court reasoned that the Ninth Circuit in holding otherwise “failed to accord the required deference to the decision of a state court adjudicating the same claims later presented in the federal habeas petition,” and that the Ninth Circuit’s opinion showed an “improper understanding of §2254(d)’s unreasonableness standard and operation in the context of a Strickland claim.” The Court ruled that a state court’s determination that a claim lacks merit precludes federal habeas relief so long as “fair-minded jurists could disagree” on the correctness of that decision. The court found that the Ninth Circuit erred under this standard in finding Mr. Richter’s counsel’s performance deficient, as the complained of actions could have been undertaken as part of a reasonable trial strategy. The Court further found that the Ninth Circuit erred in finding prejudice to Mr. Richter, as there was no substantial likelihood of acquittal had counsel acted differently.
In her concurrence, Justice Ginsburg agreed with the judgment on the basis the any lapse by counsel was not sufficiently serious as to deprive Mr. Richter of a fair trial. Justice Kagan took no part in the consideration or decision of the case. http://www.supremecourt.gov/opinions/10pdf/09-587.pdf
Premo v. Moore: In an opinion authored by Justice Kennedy and joined by Chief Justice Robert and Justices Scalia, Thomas, Breyer, Alito, and Sotomayor, the Court held that Mr. Moore’s habeas petition asserting ineffective assistance of counsel pursuant to Strickland v. Washington should be denied under 28 U. S. C. §2254(d) as the claim had been previously adjudicated on the merits in state court. The Court found that the State Court decision was not an unreasonable application of either part of the Strickland rule. The Court found that Mr. Moore’s counsel acted reasonably and that, even had he acted differently, there was no basis to believe that the outcome of Mr. Moore’s trial would have been different.
In a concurrence, Justice Ginsburg agreed with the Court that Mr. Moore had not shown he would have acted differently had he been better informed by counsel. Justice Kagan took no part in the consideration or decision of the case. http://www.supremecourt.gov/opinions/10pdf/09-658.pdf
State v. Barber: The court overruled State v. Miller to the extent that decision calls for specific performance of a plea agreement that would bind the court to impose a sentence that is contrary to law; in this case, a plea agreement that failed to include a statutorily mandated term of community custody. The Court limited the remedy of specific performance to the situation in which the State breaches its promise to make a specific charging decision or recommendation to the sentencing court. http://www.courts.wa.gov/opinions/pdf/836400.opn.pdf
State v. Schultz: In a plurality opinion authored by Justice Chambers and joined by Justices Sanders, Stephens, James Johnson and Charles Johnson, the Court overturned Ms. Schultz’ conviction for possession of illegal substances. Here, the State claimed entry was proper under the emergency exception when police had a report of yelling in an apartment and heard only raised voices, including a man saying he needed his space prior to knocking on the door. After contacting Ms. Schultz, who initially denied that there was anyone else in the apartment and then called a male out of his room, police entered the apartment based only on Ms. Schultz’ acquiescence to their entry. The Court held that these facts were insufficient to support entry under the emergency exception. In so doing, the Court made modifications to the test under which the emergency aid exception may be applied. The Court further held that the likelihood of domestic violence may be considered by courts when evaluating whether the requirements of the emergency aid exception to the warrant requirement have been satisfied, and further – and more importantly – specifically found that “mere acquiescence to an officer’s entry is not consent and not an exception to our state’s constitutional protection of the privacy of the home.” http://www.courts.wa.gov/opinions/pdf/822387.opn.pdf
In her dissent, Justice Fairhurst, joined by Justices Madsen, Alexander, and Owens, argued that the majority altered the three part test for the finding of entry under the emergency aid exception, and adopted new, unnecessary factors to add to the test. The dissent further argued that under the original three factors, the application of the emergency aid exception should stand and the conviction should have been affirmed. http://www.courts.wa.gov/opinions/pdf/822387.no1.pdf
Disciplinary Proceeding Against J. David Smith: The court held that a rule 10.14(c) of the Rules of Enforcement of Lawyer Conduct (ELC), which provides that a civilian criminal conviction is conclusive evidence of the underlying misconduct at an attorney disciplinary proceeding, does not violate state and federal constitutional requirements. Mr. Smith was disbarred, as recommended by the hearing officer. http://www.courts.wa.gov/opinions/pdf/2007481.opn.pdf
Disciplinary Proceeding Against Paul King: Mr. King, who pled guilty to federal mail fraud, challenged the subsequent disbarment recommendation, arguing that the proceedings against him were unfair, that disciplinary counsel should have been disqualified, that the hearing officer failed to follow hearing rules with regard to settlement of the hearing transcript, and that Mr. King’s guilty plea should not be binding where he was not permitted to enter an Alford plea. The court found Mr. Kings’ disbarment warranted and his arguments against such action meritless. http://www.courts.wa.gov/opinions/pdf/2007619.opn.pdf
Division One Court of Appeals:
State v. Miles: The Court remanded this case for further proceedings, finding that the trial court improperly decided that evidence found in a search warrant for Mr. Miles’ bank records that was related to a complaint filed against Mr. Miles with the Securities Division of the Department of Financial Institutions was suppressible. The Court found that the trial court improperly applied the independent source exception, under which an unlawful search does not invalidate a subsequent search if (1) the issuance of the search warrant is based on untainted, independently obtained information, and (2) the State's decision to seek the warrant is not motivated by the previous unlawful search and seizure. Because there was no dispute that the search warrant application in this case was based on untainted evidence and did not contain any information learned from the illegal search and seizure, it was not clear that the trial court used the correct legal standard in analyzing the independent source exception, and the court did not address the question of whether the State's decision to seek the warrant was motivated by evidence obtained in the previous unlawful search, the Court remanded. http://www.courts.wa.gov/opinions/pdf/61474-6.pub.doc.pdf
State v. Williams: The Court found that Mr. Williams’ rights were not violated by the imposition of an exceptional sentence that did not exceed the statutory maximum when there had been a jury finding that Mr. Williams committed the crime under aggravating circumstances. The Court further found that Mr. Williams additional claims of error were unpersuasive, including a claim that the trial court denied him due process when it did not reinstruct the jury on the “presumption of innocence” during the aggravating circumstances portion of the trial and a claim that the trial court erred in denying his motion for a retrial based on spectator misconduct. http://www.courts.wa.gov/opinions/pdf/63213-2.pub.doc.pdf
State v. Winkle: The Court affirmed Mr. Winkle’s sentence for convictions on two counts of rape of a child in the third degree. The trial court had imposed a term of 60 months, the statutory maximum for this offense, and a term of community custody for earned early release limited to the statutory maximum. The court found that the sentence was in line with recent amendments to the SRA, which prohibits a term of confinement and a term of community custody in excess of the statutory maximum, as the SRA in any event requires that a defendant convicted of a sex offense must be transferred to community custody in lieu of earned early release, and the court specifically mandated that the sentence imposed would not exceed the statutory maximum sentence. http://www.courts.wa.gov/opinions/pdf/64367-3.pub.doc.pdf
State v. Brown: The Court affirmed Mr. Brown’s convictions, finding that the trial court correctly found that multiple no contact order violations based on contact on separate days did not violate double jeopardy, and that the trial court properly declined to give a Petrich instruction because Mr. Brown engaged in a continuing course of conduct. Further, the Court found that no prejudice resulted when the State argued that Mr. Brown’s alibi was not credible, and that Mr. Brown received effective assistance of counsel because his counsel’s performance was not deficient. Finally, the Court found that Mr. Brown’s argument that the State failed to prove underlying criminal conduct fails under Bunker. http://www.courts.wa.gov/opinions/pdf/63607-3.cor.doc.pdf
Detention of Ticeson: The Court affirmed Mr. Ticeson’s sexually violent predator commitment, finding that, as he is not a criminal defendant, Mr. Ticeson has no rights under article 1, section 22 of the Washington Constitution and therefore the trial court’s failure to require a jury unanimity as to whether Mr. Ticeson suffered from a mental abnormality and/or personality disorder which made him likely to engage in predatory acts of sexual violence if not confined to a secure facility. Further, the Court found that the court’s in-chambers conferences dealing with purely legal matters did not violate Mr. Ticeson’s right to an open proceeding. http://www.courts.wa.gov/opinions/pdf/63122-5.pub.doc.pdf
Division Two Court of Appeals:
State v. McKague: The Court upheld Mr. McKague’s convictions for third degree theft and second degree assault, as well as his lifetime sentence as a persistent offender. The Court found that the trial court properly exercised its discretion in declining to accept Mr. McKague’s request to waive a jury, that there was sufficient evidence of substantial bodily harm to support his second degree assault conviction, that the to convict instruction for second degree assault did not create an impermissible presumption that relieved the State of its burden of proof, that he was not denied ineffective assistance of counsel when his attorney withdrew a proposed instruction on an inferior degree offense, and that the fact that a judge rather than a jury found the existence of his prior convictions by a preponderance of the evidence rather than beyond a reasonable doubt did not violate his due process and equal protection rights.
In his partial concurrence and partial dissent, Judge Armstrong disagreed with the lead opinion’s conclusion that the evidence was sufficient to uphold a conviction for second degree assault, arguing that the lead opinion erroneously applied the definition of substantial bodily harm, and that the bruising in this case was did not meet that definition.
In her partial concurrence and partial dissent, Judge Quinn-Brintnall agreed that the trial court properly refused Mr. McKague’s bench trial request, that the jury instructions and the evidence properly support the jury verdict finding Mr. McKague guilty of second degree assault, and concurred that Mr. McKague's convictions should be affirmed. However, Judge Quinn-Brintnall argued that Judge Armstrong’s stated concern about the improper use of expert testimony to support the lead opinion's second degree assault sufficiency analysis is unfounded. Further, the concurrence/dissent argued that the lead opinion failed to comply with constitutional principles articulated in Apprendi and Blakely when it held that Mr. McKague was not entitled to have a jury find him a persistent offender beyond a reasonable doubt before being sentenced to life without possibility of parole. Judge Quinn-Brintnall argued that under Blakely, a trial court sitting without a jury may not constitutionally sentence a defendant to life without the possibility of parole on a class B felony that otherwise carries a maximum term of 10 years.
The lead opinion and both dissents/concurrences may be found at: http://www.courts.wa.gov/opinions/pdf/39087-6.11.doc.pdf
State v. Rice: The Court ruled that RCW 9.94A.835, .836, and .837, which involve special allegations of sexual motivation, predation, and a victim under 15 years of age, respectively, did not violate the separation of powers doctrine, did not improperly involve the trial court in plea bargaining, and did not violate due process or Eighth Amendment rights. Further, the Court held that a sentencing enhancement that mirrored and element in Ms. Rice’s underling crime (that the victim was under 15 years of age) did not violate double jeopardy, and that Ms. Rice’s sentence was not illegal. http://www.courts.wa.gov/opinions/pdf/39600-9.11.doc.pdf
State v. Bluehorse: The Court affirmed Mr. Bluehorse’s conviction for drive-by shooting but reversed his exceptional sentence based on a gang aggravator, finding that the trial court failed to base the sentence on substantial and compelling facts based on the jury’s verdict finding Mr. Bluehorse guilty of drive-by shooting with a gang aggravator. Rather, the court found that the sentence was imposed in an attempt to achieve parity with Mr. Bluehorse’s co-defendant’s standard range sentence for first degree assault based on his offender score, and violated the real facts doctrine. The Court found meritless, however, Mr. Bluehorse’s remaining contentions, that his right to public trial was violated, that the prosecution was vindictive, that his motions for a mistrial should have been granted, that the trial court should not have granted a two-month recess during the trial despite the fact it was agreed to by all parties, that the state erroneously used police reports to refresh witness’ memories, and that the cumulative errors deprived him of a fair trial. http://www.courts.wa.gov/opinions/pdf/38328-4.11.doc.pdf
Division Three Court of Appeals:
State v. Brown: The Court found that Mr. Brown’s attorney’s failure to research and advise him of the pendency of Arizona v. Gant, which Mr. Brown claimed would have required suppression of evidence against him, did not constitute ineffective assistance of counsel. The Court reasoned that to adopt Mr. Brown’s suggested standard, which would have required defense counsel to perform computer research to determine that the opinion was pending and that the lower court’s holding was on point and favorable to his position “would place an unreasonable burden on defense counsel and set a standard for diligence that obliges counsel to raise issues in anticipation of any possible change in the law. The burden on defense counsel would be especially onerous in the plea bargain context, because the consequence of a mistaken prediction could be far more adverse than time and effort spent on a failed argument -- it could be the lost offer of a favorable plea.” http://www.courts.wa.gov/opinions/pdf/284301.opn.doc.pdf
State v. Castro: The court found that the trial court’s decision of pretrial motions on legal matters in chambers with a later statement regarding those decisions in open court with an invitation to counsel to object did not violate Mr. Castro’s constitutional right to a public trial. The Court found that the matters decided did not involve any fact finding required to be open to the public, and the trial court was therefore not required to engage in a Bone-Club analysis prior to deciding the matters in chambers. http://www.courts.wa.gov/opinions/pdf/288854.opn.doc.pdf
Federal Law
Ninth Circuit Court of Appeals:
United States v. Liu: The Court affirmed Mr. Liu’s convictions for conspiracy to import, transfer, and sell high quality counterfeit United States currency. The Court found that Mr. Liu’s speedy trial rights were not violated, as the speedy trial clock restarted when his wife was added to the case as a co-defendant. The Court further found that the district court did not err in failing to give a multiple conspiracy jury instruction because there was no potential for spillover guilt in this case, and likewise did not error when it failed to give a specific unanimity jury instruction as there was no proof the omission affected his substantial rights. http://www.ca9.uscourts.gov/datastore/opinions/2011/01/21/09-10136.pdf
United States v. Begay: The Court found that there was sufficient evidence to establish premeditation in support of Mr. Begay’s convictions for first degree murder, and upheld the two convictions. Specifically, the Court found that evidence that Mr. Begay had stopped near an unknown vehicle on the highway, gotten out and walked to the vehicle, where he spoke briefly to the occupants, and then returned to his truck and retrieved a gun, which he used to shoot both occupants of the car, gave him time to formulate a purpose and plan to kill the occupants of the other vehicle.
Judge Reinhardt, joined by Judge Berzon, dissented, arguing that the minimal facts set forth by the majority in its opinion failed to establish premeditation, as there was no evidence that Mr. Began reflected upon, planned, or otherwise premeditated the killing. http://www.ca9.uscourts.gov/datastore/opinions/2011/01/12/07-10487.pdf
United States v. Basher: The Court upheld Mr. Basher’s conviction for illegal discharge of a firearm on park lands. The court found that the officers’ interaction with Mr. Basher in this case was a valid Terry encounter, and that Mr. Basher’s Fifth Amendment rights were not violated. The Court further held that Mr. Basher’s Fourth Amendment rights were not violated, as he consented to the retrieval of the shotgun from his tent. Finally, the Court found that the area of a campsite outside of a tent in these circumstances is not curtilage. http://www.ca9.uscourts.gov/datastore/opinions/2011/01/20/09-30311.pdf
Miller v. Oregon Board of Parole: The Court held that Oregon’s aggravated murder review statute creates a federally-protected liberty interest in early parole eligibility, and the Due Process Clause requires that the Board of Parole’s determinations be supported by “substantial evidence” as that standard is defined under Oregon law. In this case, the Court found that the Board’s denial of relief at the conclusion of Mr. Miller’s murder review hearing did not violate his due process rights and was not an unreasonable application of clearly established federal law as determined by the United States Supreme Court. Therefore, the Court found that Mr. Miller was not entitled to habeas corpus relief. http://www.ca9.uscourts.gov/datastore/opinions/2011/01/18/07-36086.pdf
United States v. Doss: Mr. Doss appealed his conviction and life sentence for sex trafficking of children, transportation of minors into prostitution, conspiracy to commit those offenses, and two counts of witness tampering. The Court found that a conviction for witness tampering is proper when the defendant was found to have encouraged a witness to withhold testimony when that witness possessed a legal right or privilege not to testify. However, the Court vacated the sentence and remanded as to several counts, directing the district court to determine whether the victim in Mr. Doss’ prior sex offense conviction was a minor by a reasonable doubt standard instead of the modified categorical approach used by the district court. http://www.ca9.uscourts.gov/datastore/opinions/2011/01/14/07-50334.pdf
United States v. Lindsey: The Court held that the proper remedy for a good faith, erroneous denial of a defendant’s peremptory challenge is not automatic reversal under United States v. Annigoni, but a review for plan error under Rivera v. Illinois, which the Court found effectively overruled Annigoni. The Court found in this case, where defense counsel did not object when the Court stated that it had no further peremptory challenges and did not attempt to exercise its final challenge, there was no plain error and Mr. Lindsey’s conviction should stand.
In a concurrence, Judge Pregerson wrote separately agreeing with the plain error standard of review but arguing that the case could be resolved without deciding whether Rivera overruled Annigoni, as Annigoni is inapposite to this case, where there was a good faith error, as opposed to Annigoni, where the defendant was actively prevented by the district court from exercising a peremptory challenge. http://www.ca9.uscourts.gov/datastore/opinions/2011/01/14/09-50459.pdf
Perez v. Cate: The Court held that the fee caps under The Prison Litigation Reform Act (PLRA) of 150% of the “rate established” by the Criminal Justice Act “for payment of court-appointed counsel” also applies to separately billed paralegal fees under the holding in Missouri v. Jenkins.
http://www.ca9.uscourts.gov/datastore/opinions/2011/01/13/09-17185.pdf
Lopez v. Ryan: The court affirmed the district court’s denial of Mr. Lopez’ petition for a writ of habeas corpus challenging his capital sentence for first degree murder. The Court found that Mr. Lopez was given an individualized sentencing determination at which the sentencing court considered all mitigating evidence and found no leniency was warranted. The Court further found that Mr. Lopez received effective assistance of counsel, as there was no showing of error in counsel’s failure to provide the expert with eyewitness testimony caused him prejudice. Finally, the Court found no merit in Mr. Lopez’ Brady claim, reasoning that a note that was not disclosed by the government was not “material” for Brady purposes, as it included legal opinions and facts cumulative of information available in previously release police reports. Further, there was no evidence that the failure to disclose the note caused prejudice to Mr. Lopez. http://www.ca9.uscourts.gov/datastore/opinions/2011/01/20/08-99021.pdf
United States Supreme Court:
Harrington v. Richter: In an opinion authored by Justice Kennedy and joined by Chief Justice Robert and Justices Scalia, Thomas, Breyer, Alito, and Sotomayor, the Court held that Mr. Harrington’s habeas petition asserting ineffective assistance of counsel pursuant to Strickland v. Washington should be denied under 28 U. S. C. §2254(d)—which, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), limits the availability of federal habeas relief for claims previously “adjudicated on the merits” in state court. The Court found that this section applied to Mr. Richter’s petition despite the fact that the State Supreme Court issued only a summary denial, as Mr. Richter did not show that there was no reasonable basis for the state court to deny relief, nor did he demonstrate that there was a more likely explanation for the state court’s decision. The Court reasoned that the Ninth Circuit in holding otherwise “failed to accord the required deference to the decision of a state court adjudicating the same claims later presented in the federal habeas petition,” and that the Ninth Circuit’s opinion showed an “improper understanding of §2254(d)’s unreasonableness standard and operation in the context of a Strickland claim.” The Court ruled that a state court’s determination that a claim lacks merit precludes federal habeas relief so long as “fair-minded jurists could disagree” on the correctness of that decision. The court found that the Ninth Circuit erred under this standard in finding Mr. Richter’s counsel’s performance deficient, as the complained of actions could have been undertaken as part of a reasonable trial strategy. The Court further found that the Ninth Circuit erred in finding prejudice to Mr. Richter, as there was no substantial likelihood of acquittal had counsel acted differently.
In her concurrence, Justice Ginsburg agreed with the judgment on the basis the any lapse by counsel was not sufficiently serious as to deprive Mr. Richter of a fair trial. Justice Kagan took no part in the consideration or decision of the case. http://www.supremecourt.gov/opinions/10pdf/09-587.pdf
Premo v. Moore: In an opinion authored by Justice Kennedy and joined by Chief Justice Robert and Justices Scalia, Thomas, Breyer, Alito, and Sotomayor, the Court held that Mr. Moore’s habeas petition asserting ineffective assistance of counsel pursuant to Strickland v. Washington should be denied under 28 U. S. C. §2254(d) as the claim had been previously adjudicated on the merits in state court. The Court found that the State Court decision was not an unreasonable application of either part of the Strickland rule. The Court found that Mr. Moore’s counsel acted reasonably and that, even had he acted differently, there was no basis to believe that the outcome of Mr. Moore’s trial would have been different.
In a concurrence, Justice Ginsburg agreed with the Court that Mr. Moore had not shown he would have acted differently had he been better informed by counsel. Justice Kagan took no part in the consideration or decision of the case. http://www.supremecourt.gov/opinions/10pdf/09-658.pdf
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