Rainwater Law Group

Effective Criminal Defense

Copeland v Ryan, No. 16-15849 [March 28, 2017]

Copeland v. Ryan

The Respondent appealed an order of the district court requiring him to reimburse Mr. Copeland for deposition expenses incurred in his pending 2254 petition. First, the Court found it had jursidiction under the collateral order doctrine. Then the Court finds that a district court cannot order reimburse of an indigent habeas petition for disposition expense when the state did not request the deposition as it has no jurisdiction to do so. The district court’s use of Fed. Rules of C.P 15(d) was invalid as they do not apply 2254 habeas proceedings, as only Federal Rules of Civil Pro. apply. (Even though they do apply in 2255 petition by statute) The Court suggested that the expense were reimbursable under the CJA.


Cuero v Cate, No. 12-55911 [June 30, 2016]

Cuero v Cate

After entering into a plea agreement with Cuero charging him with one California strike, one day prior to sentencing, the DA filed an amended complaint alleging an additional prior strike, increasing his possible sentence from 14 years 4 months to 64 years to life. This was a violation of the plea agreement [“Cuero performed his part of the bargain only to have the state renege on its.”] and the remedy provide, i.e. withdrawal of his guilty plea and entering into a new plea agreement for 25 years to life was not sufficient to provide Cuero with his benefit of the original bargain. The state court violated clearly established Supreme Court law by denying Cuero the benefit of his bargain and the Court reversed the denial of his petition. [The majority describe Judge O’Scannlain’s dissenting arguments as “Absurd.”)

UPDATED: Rehearing was denied with a dissenting opinion. See here.


Robertson v Pichon, No. 15-16463 [March 2, 2017]

Robertson v. Pichon

Robertson challenges his convictions for DUI and possession of a billy club. Robertson was granted a COA on his claim that the trial court erred in admitted his statements, in violation of his Miranda rights, regarding the billy club they found in the trunk of his car. Robertson claims he invoked his rights after being requested to take a chemical test by stating “I want my attorney.” Later another officer asked him if the billy club in the car was his. Therefore, he argues that any subsequent questioning violated Edwards. The Court upheld the denial of the claim as the state court could have reasonably concluded that the request to submit to chemical testing did not constitute custodial interrogation. Further since, the Supreme Court has never authorized an anticpatory invocation of Miranda rights the state court did not unreasonable apply Supreme Court precedent in including his statements did not trigger any rights under Edwards. Additionally, it would not be unreasonable for a state court to find that his statement that he would not submit to chemical testing with a lawyer does not mean that he also wanted a lawyer for subsequent questioning. Other uncertified issues were also rejected.


Mahrt v. Beard, No. 15-16404 [March 1, 2017]

Mahrt v. Beard

Mahrt alleged that his Sixth Amendment right to effective assistance of counsel was violated by his trial counsel’s failure to move to suppress the firearms and ammunition found in his room. The State argued that Mahrt’s ineffective assistance of counsel claim is not cognizable on federal habeas review because it rest upon an alleged constitutional violation that preceeded his guilty plea. Second, it argued that even if it was cognizable, the state court’s rejection of the claim was not contrary to or an unreasonable application of established law as determined by the Supreme Court. The court held that his claim is not barred as the general rule has an exception where a petition may challenge the voludntary and intelligent character of the guilty plea based on pre-plea ineffective assistance of counsel. The Court then denied the claim as the “state court could reasonably have concluded that Mahrt’s counsel did not provide ineffective assistance in failing to move to suppres the firearms and ammunition. While trial counsel should have moved to suppress the evidence as “[t]here was at least a chance tht such a motion would have succeeded” the court found that it would have been reasonable for the state courts to conclude that a motion to suppress, if brought, would likely have been denied. The state courts could reasonable have concluded that the search was justified under the “emergency aid” exception to the warrant requirement. The officer had reason to believe there may have been a victim in the area and were not required to believe that she had left based on Mahrt’s and another persons statements, therefore, they had reason to go into the room to look for a victim.


Dixon v. Baker, No. 14-16644 [February 2, 2017]

Dixon v. Baker

Dixon raised Federal claims of ineffective assistance of counsel for failure to raise a voluntary intoxication defense and for failure to object to a prejudicial photograph of Dixon presented during the state’s opening statement at trial. The district court dismissed his petition after finding that he had not shown “good cause” for his failure to exhaust his claims in state court. Dixon claimed that because he did not have counsel on his state petition he had shown good cause. “Because Dixon’s petition was only partially unexhausted, Dixon should have been allowed to delete the unexhausted cliams and proceed on the exhausted claims if his motion to stay and abey the case were denied.” In this case the Court decided that it was no necessary to remand to proceed on the exhausted claims because the district court should have granted his requested stay. Because Dixon established good cause and his claims were not plainly meritless the stay should have been granted. “Based on the plain language of Blake [v. Baker, 745 F.3d 977] – that good cause under Rhines “cannot be any more demanding than a showing of cause under Martinez to excuse state procedural default . . . – the statement that ‘there was no counsel’ in Dixon’s state post-conviction case is sufficient to establish good cause.” A petitioner must also establish at least one of his unexhaust claims is not ‘plainly meritless’ in order to obtain a stay. [Along with the absence of abusive tactics, which the state did not dispute here] The claim was ground on the evidence that during opening statement the state showed to the jury a booking photo of Dixon with the word “GUILTY” written across it, no objection was made by trial counsel. This practice undermines the presumption of innocence and, therefore, the right to a fair trial and to established that it was not plainly meritless. [Although, at a hearing he would a higher standard as he would also have to show prejudice.] The Court remanded with instructions to grant Dixon’s motion for a stay and abeyance with reasonable time limits while he pursues his unexhausted claims in state court.


Hardy v. Chappell, No. 13-56289 [August 11, 2016]

Hardy v. Chappell

In what the Court describes as not a close question it grants Hardy’s petition for writ of habeas corpus. The Court found that the California Supreme Court’s decision was contrary to, or involved an unreasonable application of, clearly established law. It was uncontested that his trial counsel was ineffective in failing to investigate and present evidence that a third party was the likely actual killer. On the prejudice factor, the Court found that here the state court used the failure to show prejudice by a preponderance of the evidence standard rather than by a reasonable probability of a different result standard, therefore, contrary to clearly established federal law. The state court created a much higher bar for Hardy than the law required, thereby, applying a standard contrary to clearly established federal law. Based on a de novo review the Court found that Hardy was clearly prejudiced in the guilty phase by his lawyer's deficient performance and reversed.

SEE the amended opinion here amended on January 27, 2017, with a petition for rehearing denied.


Gallegos v. Ryan, No. 08-99029 [April 7, 2016]

Gallegos v. Ryan

Mr. Gallegos alleged ineffective assistance of counsel at both guilt and penalty phases. At trial counsel presented an argued that his client was not guilty of pre-meditated murder. On the felony murder count, he argued that since the victim was already dead at the time of the felony he did not “assault a ‘person’ as required by the pertinent Arizona statute” and that he was too intoxicated to form the necessary intent to commit the felony. The court held that the findings by the state court were not unreasonable and denied the effective assistance claims and, even if, counsel was deficient in his defense on the premeditated murder there was no prejudice as his conviction on the felony murder would still support the death penalty. On the felony murder defense, the court commented that “[t]he choice to pursue a bad strategy makes no comment on an attorney’s judgment where no better choice exists.” The court rejected the penalty phase ineffective assistance of counsel claim by first finding his representation did not amount to abandonment under Cronic, therefore, he was required to prove prejudice, which the court found the state court’s finding of a lack thereof was not an unreasonable determination of the law and facts. Additionally, for the same reasons the court rejected his penalty phase claim on failing to fully prepare and present mitigating evidence concerning his mental health and personal history.

Remanded for a hearing on his Brady claims.

UPDATE: The panel amended the first paragraph of the April 7 order to grant in part Gallegos’s motion for stay and partial remand for reconsideration in light of Martinez v. Ryan, 132 S. Ct. 1309 (2012). The panel instructed the district court to consider, on remand, Gallegos’s timely Martinez claim and to determine whether he can show cause and prejudice to excuse the procedural default with respect to his claim that counsel failed to investigate and present mitigating evidence of Gallegos’s alleged organic brain damage. The panel denied as moot Gallegos’s request for a stay of appellate proceedings.


Fue v Biter, No. 12-55307 [November 17, 2016]

Fue v. Biter

The en banc court, in an opinion written by Bybee, who also wrote the dissent in the panel opinion, found that “Fue’s lack of knowledge of the denial [of his state court petition], if proven, would entitle him to equitable tolling” and reversed and remanded to the district court. The Court found that Fue’s 14 month wait to contact the California court about the status of his case was “’not an ununsually long time to wait for a court’s decision,’ given his reasonable expectation of being notified by the California Supreme Court, based on application of that court’s rules, and “actually shows his diligence, not a lack thereof.” The Court disagreed with the State's argument that he failed to establish his diligence by only contacting the court once regarding the status of his case and did not show a continued contact with the court. The Court further found that “[t]o the extent that we have required that petitioners must demonstrate that it was ‘impossible’ to file a timely petition, such a requirement is inconsistent with Holland’s requirement that a habeas petitioner demonstrate only ‘”(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstances stood in his way’ and prevented timely filing.’” Holland, 560 U.S. at 649 (citation omitted).” Therefore, the states argument that he could filed a petition, which was true if he omitted his non-exhausted claims only, did not preclude a finding of equitable tolling.


United States v McCandless, No. 16-15411 [November 10, 2016]

United States v. McCandless

McCandless sought bail pending a decision by the district court on his petition for a writ of habeas corpus under 28 U.S.C. § 2255. He argued that he is entitled to bail as his likely sentence of 71 months has already been served. He argued that he is entitled to the reduced sentence as he should not have had the career-offender Guideline provision applied to him as under the U.S. Supreme Court decision in Johnson v. United States, 135 S. Ct. 2551 (2015) he did not have two prior conviction for a crime of violence. The district court stayed its decision pending a decision by the Supreme Court in Beckles [In which it is expected to decide “whether Johnson applies to sentences imposed under the residual clause of the Guidelines’ career-offender provisions and, if so, whether that rule applies retroactively to cases on collateral review.”] Because the district court’s decision is not appealable in the 9th Cir. the Court construed his petition as a writ of mandamus challenging the district court’s refusal to grant McCandless’ motion for bail. To be entitled to mandamus relief, McCandless must “show at a minimum that the district court’s order was clearly erroneous as a matter of law.” To grant bail, assuming that district courts have that authority, it is reserved for “extraordinary cases involving special circumstances or a high probability of success.” Because there are substantial arguments on both sides of the case the court found that is was “far from clear” how the Supreme Court will rule and, therefore, he cannot show a high probability of success. Further, McCandless cannot establish that his sentence would be served before a ruling in Beckles because even with a new guideline range of 130 to 162 months “there is no way of predicting whether the district court would grant a downward departure below that range [, or the mandatory minimum of 120 months,] or by how much.”


Williams v Johnson, No. 07-56127 [October 21, 2016]

Williams v. Johnson

On remand from the United States Supreme Court. Williams claims that the dismissal of a holdout juror was a violation of her Sixth Amendment rights. The Supreme Court reversed the Ninth Circuit’s grant of the writ, after finding that the claim had not been “adjudicated on the merits in the State court,” holding “[w]hen a state court rejects a federal claim without expressly addressing that claim, a federal court must presume that the federal claim was adjudicated on the merits.” Thereafter, the Ninth Circuits order affirming the district court’s denial of the petition was vacated by the Supreme Court, instructing the Ninth Circuit to review the merits of the claim under the standard in 28 U.S.C. § 2254(d). Williams first claim that the inquiry of the juror violated the Sixth Amendment by impermissibly intruding on jury deliberations. The Court found that the hearing focused on the issue of jury bias, not on the nature of the jury’s devision and, therefore, “process employed by the trial judge was not contrary to, nor an unreasonable application of, Supreme Court authority.” Next, Williams argued that there was a reasonable probability that the juror was excused because of his views as to guilt or innocence, the theory on which the Ninth Circuit had previously granted the petition based on its case law. Under AEDPA review the court cannot rely on its own precedent and the Court found no controlling Supreme Court case, therefore, she is not entitled to habeas relief on this theory. William’s final argument is that state appellate court unreasonably approved the dismissal of the juror for bias. The Court rejected the argument finding that contrary to William’s argument the “state appellate court did find that Juror 6 was biased because he would not follow the law” an approved reason by the Supreme Court. Further, the finding was not unreasonable. Even if the trial judge did not make a finding that Juror 6 was unwilling to follow the law, the state appellate court did make such a finding.


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