Recently in Ninth Circuit Category

In Maxwell v. Roe, the Ninth Circuit finds that a grant of habeas relief was mandated based upon the trial court's failure to conduct a competency hearing of the defendant at the time of trial.

It's a long, but interesting read:  Doody v. Schriro.  My favorite paragraph, at page 30 of the pdf:

"The Miranda warnings provided to Doody were defective because Detective Riley downplayed the warnings' significance, deviated from an accurate reading of the Miranda waiver form, and expressly misinformed Doody regarding his right to counsel. In view of clear, convincing and contrary evidence, the Arizona Court of Appeals' conclusion that the Miranda warnings were "clear and understandable" constituted both an unreasonable determination of the facts and an unreasonable application of clearly established federal law. See Siebert, 542 U.S. at 608.

Our colleagues in dissent chastise us for reaching these conclusions, accusing the majority of "once again pay[ing] mere lip service to AEDPA and then proceed[ing] as though it did not exist." See Dissenting Opinion, p. 3032. The dissent would prefer that we simply parrot the findings made during the state court proceedings and call it a day. However, if we succumb to the temptation to abdicate our responsibility on habeas review, we might as well get ourselves a big, fat rubber stamp, pucker up, and kiss The Great Writ good-bye."

Well said, Judge Rawlinson.

Yesterday, the 9th Circuit, in a 2-1 opinion in Harrison v. Gillespie, found that a defendant's right against double jeopardy would be violated if the State were allowed to seek the death penalty in a second trial.

The jury returned a verdict of guilt on the charge of first-degree murder.  Following the penalty trial, the jury reported that it was deadlocked, and two juror notes indicated that the deadlock was between life with parole, and life without. Harrison's counsel asked to poll the jurors on whether there was unanimous agreement that as to whether aggravated circumstances existed and whether they found that mitigating circumstances outweighed aggravators. The trial court denied the request, and declared a mistrial. The State of Nevada wants to seek the death penalty in a second penalty trial.  Harrison's counsel filed a petition for a writ of mandamus or prohibition with the Nevada Supreme Court, which was denied without analysis of the issue presented.  Harrison then filed a petition pursuant to 28 USC 2241 for a writ of habeas corpus in federal court.  It was summarily denied.  On appeal, the 9th Circuit (Judge Reinardt joined by Senior Judge Hug) granted relief and reversed the district court's denial of the petition. The panel held the trial court abused its discretion by declaring a mistrial without first granting petitioner's request to poll the jury to determine whether it had acquitted petitioner of the death penalty. The panel further held that, because no other alternative would adequately protect petitioner's rights under the Double Jeopardy Clause, the State could not seek and the court could not impose the death penalty at a sentencing retrial. Judge Silverman dissented, after finding that the federal constitution does not require a state trial judge to inquire into the unfinished deliberations of a discretionary matter before declaring a mistrial.

In The Matter of Smith addresses an order of a federal district court judge refusing payment for approximately 25% of the fees requested by Smith as a CJA attorney.  The opinion addresses both procedural and substantive issues.
The Ninth Circuit holds in Nordyke v. King that Heller v. District of Columbia, which recognized an individual's right to possess arms, applies to the states through the 14th Amendment.  The Circuit also holds, however, that a county government may prohibit possession of a gun on munipal property as such property fits within the exception from the Second Amendment for "sensitive places," such as government buildings and schools, that Heller recognized.

Interesting Article On Judge Bybee

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Cal Law provides an article worth reading concerning 9th Circuit Judge Bybee:  The Half-Life of Torture.
The Ninth Circuit published a decision this morning in Wilson v. Belleque.  The opinion is instructive to state court practitioners who want to make a pretrial challenge involving double jeopardy to the federal courts following denial of a motion to dismiss in state court.  
Today the Ninth Circuit Court of Appeals, in an opinion authored by Justice Bybee, found a sentence of 28 years to life imprisonment, under California's three strikes law, for failure to update an annual sex offender registration to be cruel and unusual punishment under the Eighth Amendment.  The Circuit found that California's registration requirement creates a regulatory offense and the sentence imposed to be grossly disproportionate to the offense.  This is a must read opinion for anyone with a failure to register or failure to change address case in which the State is seeking habitual criminal adjudication.  The opinion is Gonzalez v. Duncan.

In Chambers v. McDaniel, the Ninth Circuit reverses a conviction for first degree murder based upon the Kazlyn instruction on first degree murder.  Roger Chambers was convicted of murdering Henry Chacon after an altercation between the two men.  Chacon was stabbed 17 times.  The opinion addresses federal exhaustion at length, including the issue of whether an original petition for extraordinary relief was sufficient to exhaust the issue in state court.  The Circuit finds that because the Nevada Supreme Court did not dismiss the original petition on procedural grounds, but instead stated that it had "consider the petition on file" and concluded that its intervention "by way of extraordinary relief" was not warranted at this time, because the Court stated in a footnoted that it had considered all of the documents filed and received in the matter, and because the Court "concluded that the relief requested is not warranted," that its ruling was a ruling on the merits and therefore the issue was exhausted.

As to the merits, the Circuit noted that it decided the same jury instruction in Polk v. Sandoval, and found that like Polk, Chambers' due process rights were violated by the instruction on premeditation.  The Circuit found that the evidence on deliberation was particularly weak and that "if anything, the evidence presented at trial seems to weigh in favor of second-degree murder committed while in the throes of a heated argument."

Congrats to Linda Bell of the Federal Public Defender's Office (not for long, as she'll take the bench as a judge in January - this is a nice swan song).

In Sechrest v. Ignacio, the Ninth Circuit Court of Appeals reverses death sentences based upon a 1983 conviction for two murder convictions in Washoe County.  The 41 page opinion addresses procedural default issues, law of the case, an alleged Miranda violation, and several penalty phase issues.  The Court holds that the prosecutor's repeated misstatements regarding the likelihood of Sechrest's release from prison by parole were he to be sentenced to life without the possibility of parole violated his due process right to a fair trial, and that the violation had a substantial and injurious effect on the jury's sentencing decision.  The prosecutor had made four statements indicating that Board of Pardon Commissioners could -- and likely would -- release Sechrest if the jury returned a verdict of less than death.  The Court found the misconduct to be prejudicial after noting that "a jury sitting in a capital case must be given a clear choice between the death penalty and a life sentence." 

The Court also found that while the prosecutor's misconduct alone justified its holding, testimony by a psychiatrist exacerbated the prejudicial effect of the prosecutor's remarks.  Defense counsel had retained a psychiatrist to evaluate Sechrest.  Although defense counsel decided not to call the witness, counsel gave a copy of the expert's report to the State.  The State then called the psychiatrist as a witness and elicited the fact that he had examined Sechrest at defense counsel's request.  The psychiatrist informed the jury of Sechrest's criminal history, stated that he had a callous disregard for human life, and was an incurable sociopath who, if released, would pose a danger to others, particularly to little girls.  The Ninth Circuit rejected the findings by the state district court and federal district court that the psychiatrist's testimony was cumulative and instead noted the significance of testimony presented by a mental health expert.

The Court next found that defense counsel was ineffective for three reasons.  First, defense counsel should not have allowed the prosecution to review the psychiatrist's confidential report on Sechrest's mental health.  Counsel had decided not to call the psychiatrist as a witness, but inexplicably disclosed the confidential and privileged report to the prosecution.  Without this report the prosecution would not have had access to this privileged information.  "Defense counsel had absolutely no obligation to disclose [the] confidential report to the prosecution."  Second, defense counsel should not have stipulated to the prosecutor calling the psychiatrist as a witness for the prosecution.  Further, the jury was told that the psychiatrist was hired by the defense.  The Court rejected defense counsel's explanation at an evidentiary hearing, in which he stated that he did not object because he believed the psychiatrist would provide helpful information about Sechrest's troubled background, as this was not a sound strategic decision.  The Court found the explanation to be implausible as defense counsel did not call the witness and did not pursue or argue any mitigating factors related to Sechrest's troubled background.  Third, defense counsel's preparation for Dr. Gerow's testimony fell far below an objective standard of reasonableness.  Defense counsel did not speak with the psychiatrist after agreeing to let him testify for the prosecution.  The lack of preparation was evidence from counsel's lackluster performance at trial.

Congratulations on the victory to Tiffany Murphy and Michael Pescetta of the Federal Public Defender's Office.

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