The Limited Retroactivity of Cunningham

If you had been convicted of a crime and either exhausted or foregone your right of appeal, and then the United States Supreme Court decided a case that suggests your sentencing was error, you’d file a habeas petition, wouldn’t you?  Of course you would.

But you’d be out of luck in California if the U. S. Supreme Court case you were counting on was Cunningham v. California (2007), ____ U.S. ____ [127 S.Ct. 856], in which the Supreme Court held that upper term sentences may not be imposed based on facts found by the court rather than the jury beyond a reasonable doubt.  In In re Gomez, case no. B197980 (2d Dist. August 7, 2007), the Court of Appeal holds that Cunningham does not apply retroactively on collateral review to cases that were already final when it was decided.

This result is reached via the rule that:

[A]n old rule applies both on direct and collateral review.  A new rule applies retroactively in a collateral proceeding only if (1) the rule is substantive or (2) the rule is a “‘watershed rul[e] of criminal procedure’ implicating the fundamental fairness and accuracy of the criminal proceeding.”

(Citations omitted.)

Here, the court finds Cunningham is not a new rule.  Hence, Gomez’s habeas petition is denied.

This is a nice, short opinion worth reading for a good lesson in applying the old rule/new rule test for retroactivity. 

Undue Delay Precludes Coram Nobis Relief Even Where No Prejudice Results from Delay

A petitioner for writ of coram nobis must satisfy a four-part test, one element of which is that  “valid reasons exist for not attacking the conviction earlier.”  Hirabayashi v. United States, 828 F.2d 591, 604 (9th Cir. 1987).  In United States v. Riedl, case no. 06-10424 (August 6, 2007), the petitioner argued to the Ninth Circuit that even if the court did not accept her reasons for delay as valid, the delay could not preclude relief unless the government asserted laches, i.e., that it would suffer prejudice from a grant of the writ in light of the delay.  The Ninth Circuit rejects the argument, finding that undue delay precludes relief even in the absence of prejudice:

We agree with the district court that Riedl’s petition must be denied. She has failed to provide any valid reasons for waiting so long to challenge her convictions on these grounds, and thus plainly does not satisfy the requirements for the highly unusual remedy of coram nobis relief. See Hirabayashi v. United States, 828 F.2d 591, 604 (9th Cir. 1987) adopting four factors as predicates for coram nobis relief, including that “valid reasons exist for not attacking the conviction earlier”). Riedl attempts to overcome her unjustified delay by invoking the equitable doctrine of laches, arguing that the government has not been prejudiced by her tardiness. Cf. Telink, Inc. v. United States, 24 F.3d 42, 45 (9th Cir. 1994) (addressing laches in coram nobis context). We reject the notion that a petitioner can employ laches in such a fashion. To follow Riedl’s suggestion under the circumstances of this case would transform the extraordinary writ of coram nobis into a free pass for attacking criminal judgments long after they have become final.

Riedl was attempting to turn laches from a shield into a sword.  The Ninth Circuit finds offensive use of the doctrine . . . well, offensive:

Nevertheless, Riedl is incorrect that coram nobis relief is available as long as it is not barred by laches. Our decisions that have considered laches have done so only because the government invoked the doctrine as a supplemental defense.  Those decisions have not purported to overrule the Hirabayshi framework, which places the initial burden of justifying delay squarely on the petitioner, nor as three-judge opinions could they have done so.

(Emphasis in original.)

More on U.S. v. Larson

A few days ago, I blogged about the odd reasoning behind the en banc Ninth Circuit’s purported resolution in United States v. Larson of a 3-way intra-circuit split over the applicable standard of review in Confrontation Clause cases. Here’s some other blog coverage.

While my post concentrated on the intra-circuit split, Split Circuits gives you coverage of the split among the federal circuits on the same issue.

California Appellate Report comments on the odd 4-4-7 split vote of the en banc panel that results in one of the 4-judge opinions being the opinion of the court.

Larson is Ninth Circuit Blog’s Case o’ the Week, where the federal defenders’ blog digs into the substantive aspects of the case and notes that despite the intent of en banc review to clarify important issues, this case will be “all things to all people” and the poster, Steve Kalar, also responds to my comment.

 UPDATE (8/3/07): University of Michigan Law School Professor Richard Friedman addresses the standard of review issue in depth, along with some of the substance.  It’s the most comprehensive post about the case that I’ve run across.

En Banc Ninth Circuit Resolves Intra-Circuit Split on Standard of Review in Confrontation Clause Challenges

In United States v. Larson, case no. 05-30076 (August 1, 2007), an en banc Ninth Circuit court resolves a 3-way intra-circuit split on the standard of review to apply in Confrontation Clause challenges. Citing one line of Ninth Circuit cases applying de novo review, another reviewing for abuse of discretion, and a third applying a “combination” of these two standards, the courts states that it is adopting the last of these, but its analysis seems less than clear to this reader . . .

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Defendant’s Waiver of Right to Appeal Does Not Deprive Ninth Circuit of Appellate Jurisdiction

Ninth Circuit Blog has a pretty good write-up on last Wednesday’s Ninth Circuit en banc decision in United States v. Castillo, case no. 05-30401 (July 25, 2007), in which the court vacates the panel opinion and holds that it has jurisdiction to hear a criminal defendant’s appeal based on a pre-plea motion where the defendant waived appeal of pre-plea issues as part of his guilty plea.  Federal Rules of Criminal Procedure cannot expand or contract subject matter jurisdiction, and it cannot be waived.

In my observation, the tendency to confuse jurisdiction with procedure is way too common.  I recently posted, for example, about confusion between forum selection and jurisdiction in a civil case. 

The Ninth Circuit likewise notes the lamentable prevalence of confusion, citing Kontrick v. Ryan, 540 U.S. 443, 455 (2004):

[c]larity would be facilitated if courts and litigants used the label “jurisdictional” not for claim-processing rules, but only for prescriptions delineating the classes of cases (subject-matter jurisdiction) and the persons (personal jurisdiction) falling within a court’s adjudicatory authority.


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UPDATE: (7/31/07): California Appellate Report offers some thoughts on how Judge Callahan’s dissent in this 14-1 decision might affect her chances for a nomination to the U.S. Supreme Court.

Grandstanding Does Not Equal Intent

I watched the movie Minority Report last night.  It’s about a “precrime” department of the Washington, D.C. police department around 50 years in the future that, through the use of visions recorded from three gifted “precognitive” individuals, arrests persons for future murders they were going to commit.  The murder rate in D.C. drops to zero.  I recommend the movie, especially if you’re a sci-fi fan.

Coincidentally, today the Ninth Circuit issues United States v. Jimison, case no. 06-30417 (July 16, 2007), in which Judge Kozinski frames the issue as “when a defendant can be subject to a sentencing enhancement” under U.S. Sentencing Guidelines “for possessing a firearm in connection with an offense that he never commits.”  Specifically, the issue in this case is whether the evidence was sufficient to support an enhancement to felony firearms possession where the possession by the defendant is “with knowledge, intent, or reason to believe that [the firearms] would be used or possessed in connection with another felony offense.”  U.S.S.G. § 2K2.1(b)(6) (formerly § 2K2.1(b)(5)). 

The defendant, after beating up his girlfriend, stole her car.  He “stumbled upon” an unlocked ranch house from which he stole some guns, then went to a friend’s home.  Clearly distraught, he told is friend he thought he had killed his girlfriend and that he was “going to go Rambo.”  (Link added.)  Is this enough for the sentencing enhancement?

The Ninth Circuit (without benefit of precognitives, of course) says it is not enough.  The defendant’s “Rambo” remark is “an offhand comment” that “lacks sufficient specificity to establish that [defendant] formed a firm intent to shoot it out with the police.”  The court finds that lacking any evidence of context to the contrary, the defendant’s remark is the equivalent of a parent who says “I’m going to wring his neck” upon learning that is child his in trouble at school again.

It also didn’t hurt that the defendant called the owner of the guns, apologized and arranged to return them!  Why can’t all criminals be so polite?

Exclusionary Rule Beats the Criminal Rap — but not the Administrative One

A driver driving his own car is pulled over by a police officer who, because of outdated police records, believes the car is stolen.  While detaining the driver during the check on the ownership of the vehicle, the officer notes signs of drinking and the driver admits to having been drinking.  He is arrested and later blows a 0.12 breathalyzer.

In his criminal prosecution, he moves to suppress all evidence obtained or seized in connection with the traffic stop.  Easy call.  Case dismissed.

When the DMV holds an administrative review of his driving privileges, the driver makes the same motion.  Denied, and driver’s license is suspended for a year.  The superior court denies his petition for writ of mandate, finding no error.  Driver appeals. One can better settle such disputes if they were to hire attorneys from places like, who iron out the situations in a diplomatic manner.

In Park v. Valverde, case no. G037778 (June 26, 2007), the Fourth District Court of Appeal affirms.  Supreme Court precedent requires a balancing of “the policies underlying the rules and the purposes and nature of the proceeding” when determining whether to apply exclusionary rules.  Given that the purpose of the DMV proceeding is to get drunk drivers off the road rather than to impose punishment and excluding evidence would only marginally increase any deterrent effect on unlawful police conduct, the court finds that the exclusionary rule does not carry over into the administrative proceedings under the facts of this case.

Ninth Circuit Allows 35-Year-Old Conduct to Enhance Child Porn Conviction

The decision begins: “This appeal tests the temporal and relational limits of prior conduct as a sentencing enhancement.”  That seems to be putting it mildly.  In U.S. v. Garner, case no. 06-10417 (June 18, 2007), the Ninth Circuit allows the defendant’s sexual abuse of his children more than 35 years ago to be considered in enhancing his sentence for attempted receipt and distribution of child pornography.  The court finds no time or relationship limitations built into the “pattern of activity involving the sexual abuse or exploitation of a minor” requirement for enhancement under section 2G2.2(b)(5) of the Sentencing Guidelines.

Nothing from Ninth Circuit Blog yet (which is almost certain to weigh in on this), but Professor Martin notes that the 22-year sentence means Garner will die in prison.

One wonders if this has to be some sort of record.  The oldest conduct utilized for enhancement in any of the cases cited by the court was 26 years before the conviction.

Elaborate Hoax Upheld as Constitutional Seizure

I was tied up with some things Friday and missed an early review of a Ninth Circuit opinion filed that day in which the court finds an elaborate hoax staged to seize a vehicle is constitutional. If you missed it, too, this teaser from the concurring opinion should interest you in U.S. v. Alverez-Tejeda, case no. 06-30289 (June 8, 2007);

The staged collision, “theft” of the car (and all of its contents), car chase and search of Alverez-Tejeda’s apparently innocent companion had the potential to spin out of control and exceed reasonable bounds. Nonetheless, on the record before us I agree with my colleagues that the agents’ ruse stayed within bounds (even if they pushed the envelope in some respects). Although we do not sustain the district court’s thoughtful analysis, I do not thereby mean to endorse this police action as a model for future creative seizures.

The staging is best described in the words of the opinion:

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Ninth Circuit: Prior Conviction of Any Age May be Used to Enhance Sentence for Illegal Entry

Joining the Tenth and Eleventh Circuits, the Ninth Circuit holds that there is no limit on the age of convictions that may be used under section 2L.1.2 of the 2003 Sentencing Guidelines to enhance a sentence on a conviction for entering or remaining in the United States illegally. The defendant in this case was apprehended in 2003 and the trial court correctly considered convictions from 1972 and 1976. The case is United States v. Olmos-Esparza, Ninth Circuit case no. 06-50276 (April 24, 2007).

UPDATE: Jon Sands at Ninth Circuit Blog gives his detailed take on the case here.

CORRECTION: The author at Ninth Circuit Blog is Steve Kalar, posting here.