Sunday, October 31, 2010

Pearson v. Muntz, 625 F.3d 539 (9th Cir. 2010) [abrogated in Swarthout v. Cooke, infra.

Federal courts manage California county jails; state prisons; parole hearings; issue habeas corpus on state court rulings; decide state elections and Initiatives; supervise the Los Angeles Police Dept.; appoint Receivers. In Pearson v. Muntz, on rehearing en banc, the 9th Circuit held it could compel parole of a prison inmate denied release by the Governor of California who did not comply with state rules on parole release. The California Supreme Court has held that under California law, the Board of Prison Terms must find "some evidence" of the inmate's present dangerousness to prevent his release on parole. According to the 9th Circuit majority, the Governor, who exercises review authority of the Board, did not follow state law in denying Pearson's parole. According to the Ninth Circuit, failure of a state to follow state law violates federal due process. The dissenters (seven judges dissenting from denial of rehearing) in Pearson argued the 9th Circuit is bound by AEDPA, the federal statute circumscribing federal judicial review of state court cases and simultaneously limiting their appellate powers only to cases that fail to follow "established Supreme Court law." There is no Supreme Court law mandating the 9th Circuit to interpret state statutory or state Constitutional law unless violative of federal due process. The Supreme Court has held the states are under no obligation to allow parole, and the only "process" that is "due" allows the prisoner an opportunity to be heard. Not a single Supreme Court case authorizes a federal court to review state parole law other than that provision.

Thursday, October 28, 2010

Brewer v. Landrigan, 131 S.Ct. 445 (2010)

The Ninth Circuit affirmed a District Court injunction (after the state court refused to do so) mandating Arizona officials to disclose the efficacy of a drug obtained from foreign sources and not specifically approved for use in execution. Arizona appealed to the Supreme Court. Here is the order of the Supreme Court reversing the Ninth Circuit: "There is no evidence in the record to suggest that the drug obtained from a foreign source is unsafe. The district court granted the restraining order because it was left to speculate as to the risk of harm. [Citing the District Court:'[T]he [District] Court is left to speculate. . .whether the non-FDA approved drug will cause pain and suffering.']. But speculation cannot substitute for evidence that the use of the drug is 'sure or very likely to cause serious illness and needless suffering;' Baze v. Rees, 553 U. S. 35, 50 (2008). There was no showing that the drug was unlawfully obtained, nor was there an offer of proof to that effect. The motion to file documents under seal is denied as moot." To say that the Ninth Circuit decision affirming the District Court injunction against the use of a drug not approved by the FDA is specious would be an understatement. Landrigan was convicted in 1989 and the Ninth Circuit continues to undermine the death penalty with ideology-not law.

Friday, October 22, 2010

In re Gonzales, 623 F.3d 1242 (9th Cir. 2010): Pet. for Cert. Filed

Possibly worrying that the Supreme Court is aware of the usual "ineffective counsel" excuse the Ninth Circuit has used for the last decade in granting habeas corpus in state court cases, a three judge panel has discovered another method of delay for inmates in capital cases. In in re Gonzales, the panel held that the U.S. District Court must hold a hearing to determine whether the petitioner can communicate with counsel. According to the petition submitted by the eleventh attorney to participate in state and federal post trial proceedings, the legally incompetent petitioner cannot effectively communicate with counsel. The District Court had held an earlier hearing and the doctor agreed to the questionable veracity of Gonzales (who had been convicted of murder in 1991). The remedy: Mandamus to the trial court to hold another competency hearing. The Ninth Circuit panel concedes that habeas corpus is based entirely on the record, and an appellate court is bound by the trial court proceedings. What can the inmate possibly communicate? The records are the the only documents available for appeal, as the District Court ruled in denying the petition. Time for rehearing en banc. This is not the first case the Ninth Circuit in which has used this device and it cites as precedent only its own decision on record anywhere; Nash v. Ryan, 581 F.3d 1048, (9th Cir. 2009).

Wednesday, October 20, 2010

Farrakhan v. Gregorie, 623 F.3d 990 (2010)

Seven years ago the Ninth Circuit, in pursuit of its legislative goals and collaterally undermining state law, held that the plaintiff's Complaint alleging his voting rights had been abridged based on felony disenfranchisement under the Voting Rights Act (42 U.S.C. 1973 (2); VRA) could proceed to trial; Farrakhan v. Washington, 338 F.3d 1009 (9th Cir. 2003). The District Court had ruled on summary judgment in favor of defendant Washington state. In the Ninth Circuit reversal and remand, the three judge panel required the trial court to use a different legal test. Years passed while the District Court held hearings, ultimately issuing a second summary judgment in favor of defendants. On appeal, the three judge panel reversed the trial court ruling again; Farrakhan v. Gregorie, 590 F.3d 989 (9th Cir. 2006). The Ninth Circuit agreed to hear the case en banc. The court reversed the panel and affirmed the summary judgment. But the language of the opinion does not end the litigation. Here is the language of the decision affirming the summary judgment: "[. . . We hold that plaintiffs bringing a section 2 VRA challenge to a felon disenfranchisement law based on the operation of a state's criminal justice system must at least show that the criminal justice system is infected by intentional discrimination or that the felon disenfranchisement law was enacted with such intent. Our ruling is limited to this narrow issue, and we express no view as to any of the other issues raised by the parties and amici. We also leave for another day the question of whether a plaintiff who has made the required showing would necessarily establish that a felon disenfranchisement law violates section 2." If that language is unclear, a reading of the concurring and dissenting opinions is equally opaque. Three other Circuit Courts of Appeal have dismissed this absurd claim alleged in the instant ase. The Voting Rights Act has nothing to do with forbidding felons to vote. That plaintiffs could even state a claim is unimaginable. That the Ninth Circuit would waste time and money on this case confirms the commitment of this court to enacting judicial legislation, eviscerating state law, and entertaining a frivolous law suit.

Wednesday, October 13, 2010

U.S. v. Terrell, 593 F.3d 1084 (9th Cir. 2010)

The facts in this case are irrelevant. The issue is whether the court can increase the sentence of the defendant for commission of burglary under the federal statute. The Armed Career Criminal Act (ACCA) defines a violent felony as any crime punishable by imprisonment of more than one year that: (i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another. See 18 U.S.C. 924(e)(2)(B). The court increases the sentence of a defendant if convicted with the addition of prior convictions. The Ninth Circuit has repeatedly interpreted 18 U.S.C. 924 in sentencing criminals and deporting illegal aliens under a "categorical approach." The court examines the statute to determine the scope of its application in the charge, transcript of the plea, or the trial court record. If the crime is "generic," the court applies the categorical approach; if the a crime apparently falls outside this category it is resolved under the residual clause above. The majority interprets the statute (burglary) in Terrell correctly despite its apparent duplication of the use of harm. The first clause of the statute listing "violent crimes" includes the "use, attempted use or threatened use" of physical force against another. This definition obliviously applies to crimes of robbery, assault, battery, theft from the person, rape or some degree of homicide. The second paragraph identifies specific crimes outside the personal type of crime: Burglary, a property crime; arson, a property crime; extortion, a property crime and personal crime; and the use of explosives, a property and/or personal crime. The statute also includes any conduct consisting of a "potential" risk of crime. The majority interprets the second clause as a "catch all" phrase, in effect. This language does not include the "use, attempted use or threatened use of harm," it includes the "potential" of that use. The conduct of a person can include the "potential" use of harm without "using any harm, attempting to use harm or threatening to do so." In the second clause, Congress obviously attempted to include all possible linguistic interpretations of the ACCA to avoid the academic hairsplitting indigenous to the Ninth Circuit. Under this new judicial interpretation of the statute, any risk of potential physical harm is the appropriate test. Burglary, a property crime, does not routinely include the "use, attempted use or threatened use of harm", nevertheless the conduct exposes the occupant of a dwelling house, a police officer or a bystander to a potential risk of confrontation and consequent harm. In other words the generic crime of burglary may include the risk of harm not ordinarily included in the statutory definition of the crime. The minority in Terrell, worried about the "train wreck" this interpretation has caused by an earlier Ninth Circuit decision in U.S. v. Mayer, 560 F.3d 948 (9th Cir.2009), identifies Terrell as an example. The minority says nothing about all the "train wrecks" caused by untold numbers of "categorical" approaches in Ninth Circuit precedent, particularly in immigration cases where the illegal alien should be deported. There is no reason to apply the categorical approach in sentencing to immigration cases as the Mayer case notes. The new rule will end that analysis.

Sunday, October 10, 2010

Ninth Circuit Cases on Supreme Court Docket: 2010-2011 Term

Pinholster v. Ayers, 590 F.3d 651 (9th Cir. 2009); Cert. Granted Arizona Christian v. Winn, 562 F.3d 1002 (9th Cir. 2009) 130 S.Ct. 3350; Cert Granted Coleman v. U.S., 2010 WL 99000 (Schwartzenegger v. Plata) Premature & Dismissed Moore v. Czerniak, 574 F.3d 1092 (9th Cir. 2009) Cert Granted Ryan v. Doody, 2010 WL 2130582 (Reversed & Remanded) Patrick v. Smith, 130 S.Ct. 1134 (2010) (Reversed & Remanded) McDaniel v. Brown, 130 S.Ct. 665 (2010) (Reversed & Remanded Camreta v. Greene, 2010 WL 2191186 (Cert Granted) Ashcroft v. Al-Kid, 2010 WL 2812283 (Cert Granted)

Friday, October 8, 2010

Detrich v. Ryan, 619 F.3d 1038 (9th Cir. 2010)

Here is an edited version of the facts: The defendant Detrich and a companion picked up the victim who directed them to a location where they could buy cocaine. "When the syringe would not pick up the cocaine, Detrich began screaming that 'the needle wasn't any good, or the cocaine wasn't any good' and told the victim that she would have to pay for the bad drugs by having sex with him. Three witnesses reported that Detrich was holding a knife against the victim's throat." "Detrich then told the victim they were going for a ride, and Detrich, his companion and the victim left . . . [the companion drove], Detrich sat in the middle, and the victim sat on the passenger side, against the door . . . while stopped at a red light, the companion saw Detrich 'humping' the victim and asking her how she liked it. Soon thereafter, the companion looked again and saw that the victim's throat was slit. He further testified that Detrich then hit the victim and asked her who gave her the drugs, and that the victim only gurgled in response. Detrich asked twice more, and the victim responded with only a gurgle. . . the companion claims that he never saw Detrich actually stab the victim, but that he himself was poked in the arm with a knife several times. [The companion had blood on his shirt]. A pathologist established that the victim was stabbed forty times. The companion (who pled guilty] testified that, "at this point, Detrich said to him, 'It's dead but it's warm. Do you want a shot at it?'. . . The two pulled over in a remote area approximately fifteen minutes from the victim's home, and Detrich dragged the victim's body into the desert. The two men then drove to a friend's house . . . The friend testified that the men showed up at his house at 4 a.m., that Detrich was covered in blood . . About an hour later, Detrich told the friend that he had killed a girl by slitting her throat because she had given them bad drugs." This crime occurred in 1989, and the jury found Detrich guilty. The conviction was reversed on legal grounds, the State retried the case and the jury again convicted Detrich. The judge held a hearing and imposed the death penalty. The Arizona courts affirmed and the U.S. District Court denied habeas corpus. On appeal to the Ninth Circuit, the court panel in 2010 reversed the 1989 crime on the usual grounds of ineffective counsel.

Thursday, October 7, 2010

Mahach-Watkins v. Depee, 593 F.3d 1054 (9th Cir.)

Plaintiff, the mother of her deceased son, filed a 1983 Fourth Amendment excessive force and wrongful death case against a CHP officer in conjunction with a state law wrongful death claim. In the course of duty, the officer shot the deceased man during a struggle with him and, as expected, the facts were in dispute. The jury voted a "favorable verdict" (the panel definition) on the wrongful death claim and one of the 1983 wrongful death claims. The jury awarded the plaintiff one dollar on each claim. The court awarded attorney fees and costs in excess of $136,000 pursuant to 42 U.S.C. 1988. The officer appealed.
According to the Ninth Circuit panel, the plaintiff received a"favorable" verdict. If one dollar is a favorable verdict, the English language has no meaning. What really happened at trial is the plaintiff's lawyer knew the case was lost and pleaded for a nominal award-the jury not knowing this verdict meant the right to seek attorney fees. The Supreme Court has not looked with favor at this kind of case where a nominal damage award allows attorney fees; Farrar v. Hoby, 506 U.S. 101 (1992). " If a district court choses to award fees after judgment for nominal damages it must [identify] the litigation succeeded in addition to obtaining a judgment for nominal damages."

The Supreme Court denied cert.; Depee v. Mahach-Watkins, 2011 WL 55395 (U.S.)

Wednesday, October 6, 2010

Thompson v. Runnel, 621 F.3d 1007 (9th Cir. 2010)

The Ninth Circuit majority panel opinion (2-1) once again ignores a Supreme Court admonition, cited by the dissenting judge, that "a federal appellate court 'lacks' the fact finding and record keeping capabilities of a district court; McNary v. Haitian Refugee Ctr., 498 U.S. 479)1991)." Not only that, the majority panel writes its decision as though acting in the role of defense counsel. The court majority sets aside the decision of the California Court of Appeal affirming a 1998 conviction in state court, and reverses the U.S. District Court habeas corpus decision affirming the conviction of an admitted murderer. Reversed twelve years after the murder by a court that never saw or heard a single witness, disagreed with the trial court, the state court appellate judges, and rejected its U.S. District Court finding. The defendant and former boy friend of the murder victim told his father he was worried about his girl friend. He and his father went to her house and found she had been stabbed to death and her throat slit. Police immediately focused on the defendant and drove him to the police department to ask questions about the murder. The majority describes the interview room: "The [detectives] moved the defendant into an interview room containing three chairs and no other furniture. . . [t]he officers invented an eyewitness account that put the defendant at the victim's house at 2:30 p.m." As the dissenting judge points out, the defendant slept in the room all the time awaiting the officers who apologized for the delay, the room was air conditioned and he was offered food and drink. In any event, the defendant was not Mirandized but ultimately incriminated himself. Quoting the panel: "The interrogation continued . . . and the the officers told the defendant -again-, falsely that they found "evidence connecting him with the crime . . .Taking the bait . . . [t]he questioning resumed and the defendant elaborated on the details of the murder. At that point the officers gave him the Miranda admonition . . . The following day they repeated the Miranda admonition and the defendant offered more details." Without recounting all the additional details of defendant's custody, the dissenting judge adds a significant amount of information: that the interrogation room had a couch and television; the defendant was not handcuffed or searched; he never asked for food or water, was not cold; police were not in uniform or armed; the officers offered to let him answer questions at another time if he elected to do so; when he claimed the room was cold the officers turned up the heater. The majority and dissenting judges both agreed the officers did not originally warn the defendant before questioning him but did so after his confession. Failure to warn originally does not, under Supreme Court law, necessarily undermine Miranda if there is a subsequent voluntary confession. In the instant case, the leading Supreme Court decision on invocation of the Miranda decision is Oregon v. Elstad; 470 U.S. 298 (1985). In Elstad, the Supreme Court held "Miranda does not require that subsequent statements [by a suspect] given after unwarned statements [should] be discarded as inherently tainted, and admissibility of any subsequent statement should turn solely on whether it is knowingly and voluntarily made." In a subsequent case, the Supreme Court decided Missouri v. Seibert, 542 U.S. 600 (2004). The majority Ninth Circuit panel cites Seibert, a 5-4 decision, denying admissibility in evidence of unwarned statements if police use a "two step technique" designed to subvert the Miranda warnings by failing to warn, obtaining a confession, subsequently warn a suspect and obtain a second confession.

Monday, October 4, 2010

Prison Legal News, 608 F.3d 446 (9th Cir. 2010)

A non-profit organization called Prison Legal News (PLN) prints a monthly magazine containing news relating to prison conditions and legal rights of prisoners. Responding to a complaint from prisoners that the California Department of Corrections and Rehabilitation was censoring the magazine and other written materials, the PLN filed a 1983 action against the State. After a year of negotiations, in 2006 the parties reached a settlement highly beneficial to PLN, including a clause authorizing counsel for PLN to seek attorney fees and costs for their representation in the negotiations. The agreement also authorized counsel for PLN to monitor compliance with the settlement terms. Under the terms of the settlement, the court retained jurisdiction to enforce compliance. The parties subsequently informed the court they had reached a settlement.