• Criminal Procedure,  Sentencing

    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…

  • Coram Nobis,  Criminal Procedure,  Federal Procedure,  Ninth Circuit,  Writ Practice

    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…

  • Appellate Procedure,  Confrontation Clause,  Constitutional Law,  Criminal Procedure,  Ninth Circuit

    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…

  • Appeals,  Appellate Procedure,  Criminal Procedure,  Ninth Circuit,  Standard of Review

    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 . . .

  • Appellate Jurisdiction,  Appellate Procedure,  Criminal Procedure,  Federal Courts,  Ninth Circuit,  Waiver of Issues

    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…

  • Federal Procedure,  Ninth Circuit,  Sentencing

    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…

  • Administrative Law,  California Procedure,  California Supreme Court,  Criminal Procedure

    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…

  • Federal Procedure,  Ninth Circuit,  Sentencing

    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…

  • Criminal Procedure,  Ninth Circuit

    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…

  • Criminal Law,  Federal Procedure,  Ninth Circuit,  Sentencing

    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.