Monday, December 17, 2007

Marshall v. Henry, 224 Fed.Appx. 635

In 1986 a jury convicted Robert Henry of murder in a California state court and the judge sentenced him to life imprisonment without possibility of parole. The Court of Appeals affirmed the conviction and the California Supreme Court denied review. Henry filed petitions for habeas corpus in state court and all were denied. In 2005 Henry filed a petition for habeas corpus in U.S. District Court contending he was "actually innocent" of the crime. The judge denied his request and refused to issue a certificate of appealability (COA) based on petitioner's contention.
Henry appealed to the Ninth Circuit who accepted his lack of a COA and, in an unpublished opinion filed in 2007, ordered the District Court to provide a hearing on the issue of actual innocence; Marshall v. Henry, 224 Fed.Appx. 635 (9th Cir. 2007). The Ninth Circuit panel recited no facts of the underlying case and, without any legal analysis, held that petitioner only needed a low threshold to establish his actual innocence. In a two page opinion the panel ordered the trial court to hold a hearing on that issue. No legal citation for this opinion, no concern for the 18 year delay in filing the petition, no weighing the evidence, nothing other than a ukase.
On seeking review of this decision, the California Attorney General argued that the Henry case conflicts with the Supreme Court rule in Herrera v. Collins, 506 U.S. 390 (1993) "[B]ecause of the very disruptive effect that entertaining claims of actual innocence would have on the need for finality, and the enormous burden that having to retry cases based on often stale evidence would place on the States, the threshold showing for such an assumed right would necessarily be extraordinarily high and the evidence would have to be truly persuasive; Schlup v. Delo, 513 U.S. 298 (1995)."
The Henry case invites any petitioner to argue "actual innocence" without supporting evidence recited in the record, undermines state courts as fact finders, clashes with federalism and erodes the finality of a conviction. Despite Supreme Court cases directly to the contrary, the Justices denied review (certiorari); Marshall v. Henry, 2007 WL 2329696.
 Compare Henry with Smith v. Baldwin, 466 F.3d 805 (9th Cir. 2006). Evidence conclusively established that Smith and one Edmonds prepared to burglarize the home of an elderly couple by arming themselves with a crowbar and a rope. During the burglary, Smith killed the husband and seriously injured his wife. Smith pled no contest to felony murder and was sentenced in 1989. Prior to Henry's plea, the prosecution had offered Edmonds immunity and a reduced sentence in exchange for his testimony implicating Smith.
After Smith pled, Edmonds received a reduced sentence. Smith filed petitions in the Oregon courts-all denied- alleging "ineffective counsel" at his plea. Approximately three years later, Edmonds was released from prison and submitted an affidavit alleging Smith was not the killer, although not personally acknowledging his own responsibility. The prosecution warned Edmonds that if he testified to this effect at a hearing they would potentially move to vacate his plea, seek the death penalty and file a perjury charge. Unsurprisingly, Edmonds withdrew his offer to testify.
Nonetheless, Smith petitioned the District Court claiming lack of due process, prosecutorial misconduct and actual innocence. The magistrate held a hearing, found no reason to grant the petition because Edmonds now refused to testify. Smith appealed to the Ninth Circuit. The principle issue on appeal was not the merits of Smith's argument but whether his failure to timely assert actual innocence in state court barred his appeal. The Ninth Circuit panel, in a 2-1 decision, held that "[we] presume Edmonds affidavit to be true for the purposes of determining whether Smith is procedurally barred from proceeding in federal court." The panel cited no authority for this statement.
What followed was an argument by the majority panelists supporting every possible inference that a reasonable jury would find that Smith did not kill the victim. In a lengthy recital of all the possibilities, the panel majority finally held that Smith can present his constitutional claim (lack of due process) that he never asserted until the Edmonds affidavit. According to the majority, the prosecution threats to file a new case against Edmonds and seek the death penalty amounted to prosecutorial misconduct.
The dissent is a blistering rebuttal. Aside from the fact Edmonds committed another brutal crime after his release on the instant offense, Smith pled to felony murder. Speculating on what a jury would do in a case never tried is an exercise in futility. Even if Edmonds testified Smith was not the killer, who was? Both entered the house, bludgeoned one victim and killed the other. Under any state law they are principal/accomplice and equally guilty. The majority opinion is essentially empty rhetoric. Apparently other members of the Ninth Circuit agree with the dissenting judge that no prisoner has ever succeeded in establishing actual innocence in all the years since the Supreme Court allowed this contention in Schlup v. Delo, 513 U.S. 298 (1995).

Wednesday, December 12, 2007

U.S. v. Ressam, 474 F.3d 597 (9th Cir.2007);128 S.Ct.1858 (2008)

U.S.C. 844 (h) prescribes a mandatory sentence for anyone who "carries an explosive during the commission of a felony." The defendant, trained by Al Queda, attempted to enter the United States but was arrested when he falsely identified himself during a border inspection. A search of his vehicle revealed explosives. Convicted in District Court on multiple counts, he appealed to the Ninth Circuit alleging U.S.C. 844 (h) required a "relationship" between the underlying felony (false declaration) and "[carrying] explosives." After an extensive exegesis of the statute, the Ninth Circuit panel held a "relationship" between the crime of submitting a false declaration and carrying explosives did not exist ; U.S. v. Ressam, 474 F.3d 597 (9th Cir. 2007). Sentence on this count vacated.
Conceding that other Circuits had read the statute differently, the panel decided its own precedents in statutory interpretation precluded them from reaching a different result. The Third and Fifth Circuits had held that the word "during" the commission of a felony is self-explanatory. It would seem so. Five judges dissented from this opinion. The Supreme Court reversed and remanded: See, Blog, 128 S.Ct.1858 (2008)reported on May 20 2008.
After reversal, the 9th Circuit remanded the sentence; the rial court imposed the same sentence; the 9th Circuit remanded amd transferred the case to a different judge; 629 F.3d 793 (9th Cir.2008). 

Monday, December 10, 2007

Fisher v. City of San Jose, 558 F.3d 1069 (9th Cir. 2009)

The following is taken from the original Ninth Circuit opinion: Fisher v. City of San Jose, 475 F.3d 1049 (2007). On rehearing en banc, the court reversed; Fisher, 558 F.3d 1069 (9th Cir. 2009). As judges, we should not armchair quarterback a crisis from the safety of our chambers. Such post game analysis is disconnected from reality. . . What facts induced this Ninth Circuit judge, dissenting from a court decision written by two other judges, to write this scathing remark? Herewith an abbreviated version of the evidence in a civil case filed against a city and several of its police officers alleging violation of civil rights. A security guard responding to a complaint of excessive noise in an apartment complex contacted Steven Fisher, an intoxicated tenant in the process of cleaning a rifle, and invited him outside to talk about the source of the noise. Fisher exited his apartment carrying the rifle. During their conversation, the guard, frightened by Fishers menacing demeanor and fearing for his safety, contacted the San Jose Police Department. Police officers arrived shortly before 2:00 a.m. to investigate but Fisher, having returned inside his apartment, refused to open the door, responded incoherently to the officers, and cited the Second Amendment right to bear arms. He invited one of the officers into his apartment but threatened to shoot her-a felony-if she entered. The patrol officers called for support from an experienced team of officers. Several hours later and throughout the morning, officers observed Fisher walking around inside the apartment carrying a rifle. One officer testified at a subsequent trial that Fisher pointed his rifle at the officers and at another time apparently loaded the weapon in their sight. For a period of six hours the officers could not see whether Fisher was armed or had weapons accessible to him. Attempts to contact him by telephone were unsuccessful. Other uncontradicted testimony at trial established Fisher had eighteen rifles in his apartment. Police evacuated the entire apartment complex, extinguished the power in Fishers apartment, broke the glass door to his apartment and tossed in a throw phone to talk to him because the regular telephone line emitted a busy signal. Officers threw a flash bang device into the apartment in an attempt to disorient Fisher and subsequently hurled gas canisters through the broken glass door, all tactics unavailing. Ultimately police established contact with Fisher using the throw phone and he agreed to leave the apartment unarmed. Upon his exit, officers placed Fisher in custody but at no time requested an arrest warrant from a court. Fisher sued the City and several police officers for Constitutional violations (43 U.S.C. 1983) alleging the warrantless arrest entitled him to money damages. At the trial, the jury unanimously found in favor of the defendant City and its police officers-including a verdict rejecting Fishers claim that officers arrested him unlawfully without a warrant. Despite the jury verdict, the U.S. District Court judge invoked a federal rule* granting Fishers motion for judgment in his favor as a matter of law, and ruled the arrest conducted without a warrant violated his rights. In an exercise of judicial hubris, the court awarded Fisher one dollar in damages and ordered the police department to conduct training on the law of arrest and search. The two judge majority of the Ninth Circuit panel affirmed the trial court ruling on appeal. The Ninth Circuit panel majority ruled that officers can only enter a house to effect an arrest if they have obtained an arrest warrant from a magistrate unless precluded by exigent circumstances constituting an emergency. According to the panel majority, the truncated version of the facts recited above does not constitute an emergency dispensing with the warrant requirement. In their opinion, evidence that an incoherent and intoxicated individual in possession of multiple firearms who threatened to shoot an officer, pointed guns at other officers and avoided every attempt inducing him to exit the apartment does not constitute an emergency dispensing with the need to obtain an arrest warrant. Here is the panel majority rationale: the arrest warrant requirement does not evaporate the moment officers surround a home with weapons and begin to take measures to induce an individual to leave his home. . . Rather, officers must obtain a warrant before any additional incursions into the home if the initial exigency dissipates sufficiently to allow the police to obtain a warrant. The dissenting judge replies: What we have here is very dangerous situation that was resolved safely for all concerned, Fisher, the public, and the police because of good police work. Nevertheless, the majority decision penalizes the police by announcing a new warrant requirement imposing liability upon them for failing to obtain a telephonic arrest warrant in the midst of a police standoff that could have turned deadly at any moment . . . Armed standoffs are fluid and dangerous situations that are stressful, tense, and require difficult decisions to resolve peacefully . . . Armed standoffs always require [complex] tactical decisions that attempt to balance the safety of all involved. Commentary: The Fisher case is not an arrest conducted by officers in a criminal case who mistakenly concluded they had probable cause to arrest, or lacked an arrest warrant. Fisher filed a civil case against the City of San Jose and its officers exposing them to liability for alleged violation of Constitutional rights. The jury verdict in favor of the City and its officers validated the propriety of the arrest, including a jury decision that police did not need an arrest warrant. The trial judge overruled the jury verdict and imposed his own version of the legal consequences of the arrest. Neither the majority nor minority panelists disagree the officers had probable cause to arrest Fisher. They disagree as to what point in time the arrest triggered the necessity for a warrant, whether at the time of the initial confrontation when Fisher refused to emerge from his apartment, or when the officers physically took him into custody. From the initial nighttime contact at 2:00 a.m. until 2:30 p.m. in the afternoon the standoff took place. The majority decision notes that for six hours during the standoff the police never saw Fisher armed, allowing ample time for officers to obtain a warrant, although he ignored repeated attempts to flush him out. The court failed to recognize that Fisher could have quickly concealed himself, ambush anyone who entered, and had the ability to stave off police with multiple firearms. Fisher caused the six hour period of time to elapse, not the officers, but according to the court majority, this period of time dissipated the emergency and permitted officers time to seek a warrant. The Fisher case stands for the proposition that when the initial emergency event is dissipated the justification for a warrantless arrest no longer exists. To avoid civil liability, the officers must seek judicial authorization for an arrest warrant, contact a judge, identify an officer to prepare papers or recite the facts telephonically to the judge in support of the affidavit, wait until the administrative process necessary to obtain the warrant concludes, review the accuracy of the warrant and affidavit, and notify relevant department personnel the arrest warrant has been issued. The panel majority decision is riven with legal discussions of the Fourth Amendment prohibiting unlawful searches and arrests potentially imposing civil penalties on police officers. But in the Fisher case, academic hairsplitting confirms the dissenting judges opinion of the panel majority decision: disconnected from reality. As the panelist minority notes, officers will now have to determine when dissipationoccurs. At their own risk. This case was originally reported in January, 2007; Fisher v. City of San Jose, 475 F.3d 1049 (9th Cir. 2007). The panel majority unilaterally withdrew the opinion, superseded it on denial of rehearing, and rewrote it; Fisher v. City of San Jose, 509 F.3d 952 (9th Cir. 2007). The case was reheard en banc, reversed and the court reinstated the jury verdict; Fisher v. City of San Jose, 558 F.3d 1069 (9th Cir.2009). That three judges dissented is evidence that judicial naivete is alive and well;. Federal Rule of Criminal Procedure 50 (b).

Saturday, November 10, 2007

Quinter-Salazar v. Gonzales, 506 F.3d 688 (9th Cir. 2007)

Reports of erecting fences on the southwestern border of the United States, introducing high tech electronic surveillance and adding border patrol personnel all designed to stem the flood of illegal aliens usually result in heavy media coverage. But we rarely read reports of immigration decisions written by the Ninth Circuit allowing a massive leak in the border tide. In immigration cases, except for constitutional claims or questions of law, Congress has severely limited the jurisdiction of federal appellate courts by enacting the Real ID Act (8 U.S.C. 1158 (a) (3); 106. In Ramadan v. Gonzales, 427 F. 3d 1218;1222 (9th Cir. 2005) the Immigration Judge (IJ) hearing the evidence had decided that the only issue in the case was an allegation by Ramadan that despite her non compliance with timelines mandated in the statute, changed circumstances, i.e., a factual issue, entitled her to asylum in the United States. The IJ refused to grant asylum. Ramadan appealed the decision to the Ninth Circuit and the only legal question was whether her application for asylum qualified as a question of lawas required by the statute. A three judge Ninth Circuit panel originally heard the appeal and wrote that Ramadans application for asylum based on allegations of changed circumstances does not present any question of law and dismissed the petition for asylum. That decision was withdrawn, rewritten, and read . . . a changed circumstances determination falls within the term questions of law; Ramadan II, 479 F.3d 646 (9th Cir. 2007). In a word, the panel wrote a complete reversal of its original opinion. The U.S. Government appealed and asked for en banc (full court) hearing to rectify this egregious change. An insufficient number of judges agreed to a rehearing. Here is the dissent concurred in by eight other dissenting judges: In a feat of interpretative creativity, the Court in this case has transformed a discretionary determination [finding of facts] of an Immigration Judge (IJ) into a question of law, thereby claiming jurisdiction over a swath of immigration cases hitherto beyond our purview . . . Congress has expressly withdrawn our power to review such discretionary determinations [by the IJ judge] and by reviewing the merits of the IJs ruling, the panel has transgressed the clear limits of our constitutional jurisdiction. For this reason, and because the panels opinion conflicts with the decisions of the seven other circuit [courts] that have considered this issue, I must dissent . . . Ramadan is more than mere statutory interpretation of the Real ID Act. The court reverses its original decision and reaches an opposite result enabling it to expand its jurisdiction. Withdrawing an opinion unilaterally and rewriting it to not only repudiate the original opinion but to confer jurisdiction on the court is a serious question of separation of powers. Congress has unambiguously intended to limit judicial power to review immigration cases and the Ninth Circuit panel engages in statutory hairsplitting to reach its result. No doubt the Supreme Court will review this case. There is another troubling economic issue. First, the IJ judge hears the evidence; the Ninth Circuit hears the appeal; the Ninth Circuit reverses its decision and writes another decision; the Ninth Circuit denies a hearing of the full court and dissenting judges write a dissent. The U.S. government will undoubtedly appeal. At what cost to the taxpayer for the work of immigration judges, the courts and their staff involving a single illegal immigrant? Perhaps the only saving grace of this case is, ultimately, the Ninth Circuit denied Ramadans petition on grounds of insufficient evidence of changed circumstances. *** Quintero-Salazar v. Keisler, 2007 WL 2916162 (9th Cir.) Quintero-Salazar pled guilty in California state court to two counts of engaging in sexual intercourse with a minor (statutory rape), served his sentence and was placed on probation. Subsequently detained by the INS when returning from Mexico, he appeared before an immigration judge who found him removable from the United States based on his conviction [by plea] of a crime of moral turpitude, a crime qualifying as an aggravated felony under immigration law. 8 U.S.C. 1101 (43) defines an aggravated felony as . . . murder, rape, or sexual abuse of a minor. In a 2-1 decision the majority held statutory rape is not a crime of moral turpitude. The dissent cites three prior Ninth Circuit cases specifically characterizing statutory rape as a crime involving moral turpitude and an "aggravated felony," i.e. as murder, rape or sexual abuse of a minor warranting removal of the offender; U.S. v. Gomez-Mendez, 486 F.3d 599 (9th Cir. 2007); Rodriguez-Herrera v. INS, 52 F.3d 238 (9th Cir.1995); Gonzales-Alvarado v. INS, 39 F.3d (9th Cir. 246 (1994). The majority ignores all these decisions and defines moral turpitude in its own way.

Tuesday, October 23, 2007

Smith v. Arizona, 128 S.Ct. 2997 (2007)

Joe Clarence Smith was sentenced to death in 1977. After the Arizona Supreme Court set aside sentencing error, the court again imposed the death penalty. In 1999 the Ninth Circuit reversed the sentence on grounds of "ineffective counsel." The majority of the judges on the panel used the familiar technique of second guessing counsel and imposing their own view of how to try the case-although none had ever been a trial judge. Due to Constititutional changes imposed by the Supreme Court, the defendant's sentencing was delayed and he was sentenced to death again in 2004. Defendant pertioned for certiorari in 2007- thirty years after his original sentence. The Supreme Court denied cert. except for Justice Breyer who in dissent thought the delay (caused by the courts ) was "unusual" and he wondered if it is "cruel" to keep an individual for decades on death row." He mused that the delay might raise a "serious constitutional question."

Wednesday, September 5, 2007

Vindictive Prosecution: U.S. v. Jenkins, 518 F.3d 694: Part I

On two consecutive days in October, border patrol agents stopped Ms. Jenkins and arrested her each time for concealing two illegal aliens in her car. No charges were filed although Jenkins admitted to the agents she was paid to smuggle aliens. In January, three months later, she and her husband attempted to enter the United States and border patrol arrested them in their car for importing marijuana. Indicted for importation, the defendant testified at trial she was unaware of the marijuana concealed in the car because she believed she was smuggling illegal aliens. Based on this testimony, and while the jury was deliberating, the U.S. Attorney indicted her for smuggling aliens based on the October events.

Friday, August 31, 2007

Gonzales v. Thomas, 547 U.S. 183 (2007)

Congress has repeatedly attempted to strip jurisdiction of immigration cases from federal courts in general and the 9th Circuit in particular. And, in 2006 the Supreme Court reversed the 9th Circuit (again) in Gonzales v. Thomas, 547 U.S. 183 (2006), writing . . . "a court of appeals is not generally empowered to conduct a [new] inquiry into the matter [deportation] and to reach its own conclusions based on such an inquiry." In effect, the Court reprimanded the 9th Circuit for substituting its own opinion in lieu of the Immigration Judge (IJ). Here a few more examples of 9th Circuit reversals of Immigration Court judges: July & August 2007: Gomez v. Gonzales, 498 F.3d 1050 (9th Cir.2007): In petitioning for cancellation of removal, petitioner filed an untimely document in support of her petition and, accordingly, the IJ refused to accept it. The 9th Circuit said the IJ did not give a "reasoned decision" for his ruling. How much "reason" is necessary to explain a rule that requires timely filing of a document? Reversed.

Saturday, August 18, 2007

U.S. v. Castillo-Basa, 483 F.3d 890 (9th Cir. 2007)

The angry national debate on immigration legislation concluded without resolution other than Congress funding construction of a fence along the Mexican border. Although the proposed Congressional legislation incited widespread opposition, a parallel debate occurs regularly in federal courts. Unheralded by the media, the Ninth Circuit repeatedly undermines immigration enforcement. Aside from hearing innumerable appeals of cases decided by Immigration Court decisions on applications for cancellation of removal, asylum and the Convention Against Torture, the court hears appeals from U.S. government criminal prosecution and conviction of deported aliens who reenter the United States. At this stage, the full resources of the government are invoked: Judges, prosecutors, defense attorneys, jurors, and appeals. A recent case confirms the exorbitant cost of enforcing immigration law. In U.S. v. Buenaventura Castillo-Basa the record establishes that Basa was originally charged and convicted of multiple crimes, served seven years of a fifteen year sentence and deported. Basa returned again to the United States without permission, was indicted and charged with being a deported alien found in the United States in violation of 8 U.S.C. 1326. Prior to trial, the government conceded it could not find an audio tape of the earlier deportation hearing establishing Basas presence in this country. At the trial, the defendant testified he never appeared before an immigration judge and had no hearing. The jury found Basa not guilty. Shortly thereafter the government located the tape clearly establishing Basa had indeed appeared before the immigration judge at a deportation hearing. To put it bluntly, Basa lied. The prosecution charged Basa with perjury. Basa alleged he could not be re tried based on the Double Jeopardy Clause and the doctrine of collateral estoppel. The district court judge denied his motion and Basa appealed. A three judge panel of the Ninth Circuit split 2-1, the majority holding collateral estoppel barred a trial for perjury. Although Ninth Circuit court rules offer the opportunity for all active judges to order a rehearing, an insufficient number requested a hearing. Five judges dissented; 494 F.3d 1217 (2007). The legal question turned on whether the evidence in the deportation trial contained an issue necessarily decided by the jury verdict of "not guilty"in order to invoke collateral estoppel, i.e., did the jury verdict in the deportation trial foreclose a subsequent prosecution for perjury. Although the argument is bound up in legal analysis, Basa documents the absurdity of federal judges wasting inordinate time and incurring the cost of a jury trial on a perjuring illegal alien while the courts struggle under an overwhelming case load. That an indisputably illegal alien who committed perjury is allowed to escape punishment is indefensible. According to the 2-1 majority of the court, that is unfortunate, but Basa will not be tried for perjury. U.S. v. Castillo-Basa, 483 F.3d 890 (9th Cir. 2007) [deportation] U.S. v. Castillo-Basa, 2007 WL 2105093 [perjury] The fact pattern of this case is unusual but prosecutions under 8 U.S.C. 1326 are not; U.S. v. Jorge Enrique Lopez, 2007 WL 2142305 (July 27, 2007)