Rainwater Law Group

Effective Criminal Defense

Sherrod v. US, No. 16-72178 [June 2, 2017]

Sherrod v. US

Sherrod’s application for authorization of a second or successive 2255 motion was denied. The Court held that a § 3582(c)(2) sentence reduction does not qualify as a new, intervening judgment; and that he must therefore, obtain such an authorization. The Court denied his authorization as he did not make a prima facie showing under 2255(h) of newly-discovered evidence or a new rule of constitutional law.


Davies v. Benov, No. 15-17256 [May 17, 2017]

Davies v. Benov

Davies in a 2241 habeas petition argued that a congressional appropriations rider prohibits the BOP from using federal funds to incarcerate him for conduct he contends complied with California’s medical marijuana laws. The panel found the claim was precluded by the collateral-attack waiver provision of Davies’s plea agreement, “which clearly covers his present challenge.”


Greenway v. Ryan, No. 14-15309 [May 11, 2017]

Greenway v. Ryan

The district court granted a COA on two claims of ineffectiveness relating to trial counsel’s alleged failure to present defenses at petitioner’s capital murder trial. First, he claimed that trial counsel “failed adequately to present an overall defense theory.” Because the only viable defense was presented at trial this claim did not show ineffectiveness. Second, he claimed that “trial counsel should have explored the possibility of a mental incapacity defense of impulsivity, as recognized in Arizona, in order to negate premeditation.” The Court concluded that “the suggested defense would have been counterproductive, as it would have placed Greenway as a principal in the murders, and would likely not have overcome the strong evidence of premeditation in any event [the defense was that he was only guilty of selling stolen property taken from the victims].” The Court also considered a claim that trial counsel was ineffective during voir dire in failing to discover that a juror had been the victim of a violent crime that would have disqualified that juror and rejected it as without merit. Finding that counsel need not be “clairvoyant” and had no reason to suspect the juror was withholding information.The Court also denied a COA on all Greenway’s other claims.


Nasby v McDaniel, No. 14-17313/15-16264 [April 10, 2017]

Nasby v. McDaniel

Nasby appeals from the denial of his habeas corpus petition in the district court. That petition raised “serious constitutional violations based on prosecutorial misconduct, the use of coerced testimony, ineffective assistance of trial and appellate counsel, and errors in the jury instructions. The Court reversed and remanded because the district court rejected the claims without obtaining or reviewing the record of the relevant proceedings in state court. The district court never obtained or reviewed the transcript of Nasby’s trial or the the transcript of the evidentiary hearing that the state court conducted on collateral review nor did it conduct an evidentiary hearing on Nasby’s claims. “Instead, it simply relied on the facts as described in the Nevada Supreme Court’s opinion denying Nasby relief.” Without reaching the merits of the claims it reversed and remanded finding the district court erred in not reviewing the state court record. The Court stated “Nasby contends that if the role of a federal habeas court were simply to accept on faith the state court’s description of the facts, free from any obligation to review the record on which the state court based its judgment, ‘there would hardly be a reason to have a federal habeas statute at all.’ We agree.” The Court further rejected the State’s cliam that AEDPA prevents a federal habeas court from reviewing the record and obliges it, instead, to accept the state court’s description of facts on faith and, instead, found that the AEDPA demands the opposite. To evaluate wheter a state court unreasonably determined the facts “in light of the evidence’ before it or whether a state court unreasonably applied clearly established law to the petitioner’s case a federal court must first ascertain what evidence was before the state court.


Weeden v. Johnson, No. 14-17366 [April 21, 2017]

Weeden v. Johnson

Weeden claimed her trial counsel provided ineffective assistance of counsel for refusing to investigate psychological testimony to support her mental state defense and instead called four character witnesses. Her claim was rejected in state court as being a “reasonable strategic decision.” Here, counsel refused to do an evaluation as he was afriad that the prosecution could use it against him. The Court found that “[c]ounsel cannot justify a failure to investigate simply be invoking strategy.” “Under Strickland, counsel’s investigation must determine trial strategy, not the other way around. (citations omitted) Weeden’s counsel could not reasonably conclude that obtaining a psychological examination would conflict with his trial strategy without first knowing what such an examination would reveal.” Further, merely obtaining a report does not require that it be disclosed contrary to counsel’s position. Because Weeden mental condition was this issue here counsel should have investigated it. “Counsel’s performance was deficient because he failed to investigate, a failure highlignted by his later unreasonable justification for it.” The state court’s finding to the contrary was an unreasonable application of clearly established Supreme Court law. The Court conclude that the lack of testimony, as presented to the Court in an affidavit, if presented to the jury “the propability of a different result is ‘sufficient to undermine confidence in the outcome.’” Reversed and remanded to grant the writ unless Weeden is timely retried.


Hedlund v. Ryan, No. 09-99019 [March 4, 2016]

Hedlund v. Ryan

Rejecting Hedlund’s claims, because they were not and unreasonable application of federal law or an unreasonable determination of the facts. Nevertheless, the court reversed his death sentence as “the Arizona Supreme Court applied a ‘causal nexus’ test, whereby not all mitigating evidence was considered” and, therefore, was contrary to clearly established federal law. Judge Wardlaw dissented disagreeing with the majority opinion on the shackling issue and on the ineffective assistance of counsel during the plea process and penalty phase.

Amended Opinion, still reversing because of the 'causal nexus' test, and order denying a petition for rehearing en banc filed 4/13/17.


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.


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