Rainwater Law Group

Effective Criminal Defense

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.


Visciotti v. Martel, No. 11-99008 [October 17, 2016]

Visciotti v. Martel

On Visciotti’s appeal to the California Supreme Court, it assumed that counsel afforded him “inadequate representation in some respects” during the penalty phase, but determined that he was not prejudiced and denied his petition. The district court granted his petition as to the penalty phase and the 9th Circuit affirmed. The Supreme Court in Woodford v. Visciotti 537 U.S. 19 (2002) summarily reversed the 9th Cir. On remand, the district court denied his remaining claims and he appealed that denial. He raised claims that 1) his counsel’s ineffective assistance during the guilt and penalty phases of his trial requires habeas relief as to the death sentence; 2) the trial judge’s closure of the death qualification voir dire proceedings violated his Sixth Amendment right to a public trial. The trial court held death qualification in chambers with only the court, counsel, a court reporter and, some of the time, Visciotti. His attorney did not object to this procedure, nor did the court make any findings of necessity. At trial, the prosecution agreed not to introduce a prior assault conviction, but Visciotti’s attorney had him testify about his prior criminal history. After that, the prosecution presented rebuttal testimony as to Visciotti’s description of the prior assault. At the penalty phase, the prosecution’s case consisted solely of the testimony of the victim of the prior assault. His attorney case was based on jury sympathy for Visciotti’s family who testified his was never violent to his family and was only violent when on drugs. Thereafter, the prosecution was allowed to call a second victim of his assault to rebut his non-violence. The California Supreme Court described Visciotti’s counsel penalty phase argument as “a rambling discourse, not tied to particular evidence.” [His lawyer was subsequently suspended from the practice of law for a laundry list of failures to his clients during the time he was representing Visciotti. Nevertheless, the California Supreme Court on habeas affirmed the conviction as Visciotti was not prejudiced by his attorney’s failures over a dissent who maintained that Visciotti’s counsel’s “abysmal across-the-board performance rendered the penalty phase of the trial a complete and utter farce.” On remand from the Supreme Court Visciotti argued that the California Supreme Court decision rested on an unreasonable determination of the facts and the 9th remanded to the district court to rule on the argument. Under the doctrine of the law of the case, the Court held it was bound by the prior Supreme Court decision and denied his petition on ineffective assistance grounds. While complaining about the practice of the Supreme Court of deciding the prior case without merits briefing or addressing all the issues, it was bound to follow that opinion. That decision also precluded the Court from considering his cumulative ineffective assistance of counsel issue at both the guilt and penalty phases. On the voir dire issue the Court held that the question of whether it could review the merits of Visciotti’s public trial claim turns entirely on whether he established trial counsel was ineffective and, therefore, excuse the procedure default. Under the highly deferential review of counsel performance, the Court could not find that any competent attorney would have objected to the sequestration of jurors during voir dire, give the law in 1983. Therefore, counsel’s failure to object was not deficient performance, and there is no cause to excuse his default of that claim. Both judges Berzon and Pregerson wrote a concurrence complaining about how the Supreme Courts summary reversal procedure prevents a full hearing of the issues because the parties do not fully develop their merits argument at the certiorari stage.


McDaniels v. Kirkland, No. 09-17339 [December 24, 2015]

McDaniels v. Kirkland

The Court held that where evidence was presented to the state trial court but not to any state appellate court federal courts may consider the entire state-court record, including evidence presented only to the trial court. [The state waived any procedural default by failing to raise it below.] The Petitioners appealed their murder convictions in the California Court of Appeals on Batson grounds but failed to place “the entire record of voir dire before the California Court of Appeal, nor did they ask that court to perform a comprehensive comparative juror analysis.” [The court notes that the failure to augment the record may constitute a flaw in the fact-finding process that would make the decision based on an unreasonable determination of the facts.] The en banc Court remanded to the original three judge panel to “evaluate whether, in light of the whole state-court record, the California Court of Appeal’s rejection of Petitioners’ challenges to the strikes was based on an unreasonable determination of the facts.

On Remand at McDaniels v. Kirkland :

On remand from the en banc court the panel reconsidered petitioners’ contentions that the California Court of Appeal’s adjudication of their Batson claims was based on an unreasonable determination of the facts, after the en banc court “clarified that in assessing Petitioners’ claims, we are to ‘consider the entire state-court record, not merely those materials that were presented to the state appellate courts.’” The panel, finding the en banc decision "novel," after considering the entire state-court record again finds it was not based on an unreasonable determination of the facts and denied the petitioners’ habeas relief.


Tarango v. McDaniel, No. 13-17071 [March 3, 2016]

Tarango v. McDaniel

Tarango claimed a violation of his right to due process where a police vehicle followed Juror No. 2, a known holdout against a guilty verdict, for approximately seven miles, on the second day of deliberations, in a highly publicized trial involving multiple police victims. The Court held “that the Nevada Supreme Court’s decision was contrary to Mattox v. United States, 146 U.S. 140 (1892), because the court improperly limited its inquiry to whether the external contact amounted to a ‘communication’ and did not investigate the prejudicial effect of the police tail.” In Mattox the Supreme Court “established a bright-line rule: any external contact with a juror is subject to a presumption that the contact prejudiced the jury’s verdict, but the government may overcome that presumption by showing the contact was harmless.” Clearly established federal law requires a criminal trial court to consider the prejudicial effect of any external contact, whether or not it amounts to a “communication.” Further, the external contact need not be intentional. “Mattox and its progeny further establish that undue contact with a juror by a government officer almost categorically risk influencing the verdict.” The court also stated that “consistent with the anti-impeachment rule, this court permits the introduction of limited evidence of a juror’s state of mind to prove juror misconduct.” On de novo review it remanded to the district court to hold an evidentiary hearing to allow Tarango to establish prejudice.

UPDATE: The Court filed an amended opinion and dissent on Sept. 16, 2016, leaving the case substantially the same and denying a rehearing.


​Lee v. Jacquez, No. 12-56258 [June 9, 2015]

Lee v. Jacquez

The court held that California’s Dixon rule, which prohibits California state courts from considering habeas claims that should have been raised on direct appeal but were omitted, is an adequate and independent state law procedural rule that bars federal review of Lee’s claim, but the state has failed to establish Dixon bar’s adequacy at the time of Lee’s procedural default. The state’s evidence which showed Dixon’s application as a percentage of all habeas denials filed during the relevant time period was insufficient to meet its burden, as it should have shown how many case the Dixon bar should have been applied to. Remanded back to the district court to consider her claims on the merits.

UPDATE: Based on the United States Supreme Court's decision in Johnson v. Lee, ___U.S.___, 136 S.Ct. 1802 (2016) the Ninth Circuit affirmed the judgment of the district court.


Clark v. Ryan, No. 15-15531 [September 2, 2016]

Clark v. Ryan

Clark contended that an Arizona Court of Appeals decision that Arizona’s modern sex offender registration statute is not an ex-post facto law, as contrary to and involves an unreasonable application of clearly established federal law. The Court affirmed finding that the Arizona case’s finding that the sex offender registration statute is a civil, nonpunitive regime was not an unreasonable application of federal law in Smith v. Doe I, 538 U.S. 84 (2003) stating that “the Arizona Court of Appeals was not unreasonable in holding the statute’s punitive effects fail to outweigh its regulatory purposes.”


Rademaker v. Paramo, No. 14-56946 [August 30, 2016]

Rademaker v. Paramo

The California Court of Appeal found that an erroneous jury instruction regarding the element of the asportation in special circumstances of committing a murder during the commission of kidnapping did not require reversal as it was “harmless beyond a reasonable doubt” under state law. The Court held that the harmless-error determination was not objectively unreasonable. The State Court’s decision that the evidence show the victim was moved one to one and one-half miles was not an unreasonable one and, therefore, the instruction was harmless was a reasonable one.


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