Rainwater Law Group

Effective Criminal Defense

Crace v. Herzog, No. 13-35650 [August 14, 2015]

Crace v. Herzog

Crace’s claimed that trial counsel was ineffective in failing to request a jury instruction on unlawful display of a weapon a lesser included offense of second-degree assault, for which, under Washington’s three-strikes law, he received a life without possibility of parole sentence. The Washington Supreme Court denied his claim on the grounds he failed to show prejudice. Affirming the district court’s grant of the petition the court found the decision was an unreasonable application of clearly establish federal law and, on de novo review the ineffective assistance claim warranted relief. The Washington Supreme Court applied two presumptions: first, presuming that the jury must have found that each of the elements of attempted second-degree assault had been proved beyond a reasonable doubt when it convicted him and second, because the evidence was sufficient to support the verdict it was presumed that and instruction on the lesser included offense would have made no difference to the outcome of the trial. The court found that this “methodology is a patently unreasonable application of Strickland, and its decision in this case is thus unworthy of deference under AEDPA.” “[I]n ineffective-assistance cases involving the failure to request a lesser-included-offense instruction, Strickland requires a reviewing court to assess the likelihood that the defendant’s jury would have convicted only on the lesser offense.” Under Washington’s approach a defendant can only show Strickland prejudice when the evidence is insufficient to support the jury’s verdict – a circumstance in which the defendant does not need to rely on Strickland at all because Jackson already provides a basis for relief. Based on the evidence here “a jury could rationally choose to convict Crace only of unlawful display of a weapon.” Reviewing the deficient performance de novo as the Washington Supreme Court declined to reach that issue the Court found the attorney’s performance was clearly deficient. “A trial attorney’s failure to request a jury instruction receives no deference, however, when it is based on ‘a misunderstanding of the law’ rather than ‘a strategic decision to for[]go one defense in favor of another.” Here, it was neither strategic nor deliberate and, therefore, upheld the granting of his petition.


Reyes v. Lewis, No. 12-56650 [August 14, 2015]

Reyes v. Lewis

Reyes raised a claim that his state-court conviction rested on a confession obtained in violation of Missouri v. Seibert, 542 U.S. 600 (2004). The court found that Justice Kennedy’s concurrence represented the holding in Seibert and that a postwarning statement must be suppressed if interrogating officers deliberately use the two-step interrogation technique that was used in Seibert, and if effective curative measures are not taken to ensure that the suspect genuinely understood the Miranda warnings. The court found that the California Court of Appeal did not understand Seibert, therefore it is entitled to no deference. In determining whether the officers deliberately employed the two-step interrogation technique condemned in Seibert a court should review the totality of the objective and subjective evidence surrounding the interrogations in order to determine deliberateness, with a recognition that in most instances the inquiry will rely heavily, if not entirely, upon objective evidence. The court held that the magistrate and district court clear erred in failing to conclude that the officers deliberately employed the two-step interrogation technique. Further, no curative measures were taken by the officers to ensure that Reyes understood his Miranda warning and of the waiver.


US v. Rodriguez-Vega, No. 13-56415 [August 14, 2015]

US v. Rodriguez-Vega

Rodriguez-Vega alleged that her counsel was ineffective because her attorney failed to advise her that her plea agreement rendered her removal a virtual certainty. When a plea makes removal virtually certain counsel must advise his client that removal is a virtual certainty. The court held that “Rodriguez-Vega’s counsel was required to advise her that her conviction rendered her removal a virtually certain, or words to that effect. Since counsel never informed her that she faced anything more than the mere potential for removal counsel performance was constitutionally ineffective. Prejudice was established by showing other case were defendants on similarly charges received a plea to a non-removable offense and that she settled on a charge in a purposeful attempt to avoid an adverse effect on her immigration status because she had previously rejected a plea bargain that stipulated to removal. As an alternative ground for showing prejudice, she demonstrated clearly that she placed a particular emphasis on the immigration consequences of a plea in deciding whether or not to accept it.


Cummings v. Martel, No. 11-99011 [August 11, 2015]

Cummings v. Martel

Cummings raised three issues: 1) that the admission of his inculpatory statement overheard by a bailiff at trial violated his due process rights; 2) that his counsel was ineffective in his sentencing proceeding; and 3) an allegation of Batson error. The due process error in having the bailiff testify is analyzed using two factors: 1) was the bailiff “a ‘key witness[]’ or testified to some ‘uncontroverted or merely formal aspect of the case;’” and 2) an examination of the relationship between bailiff and jury to determine “whether the official had a ‘continuous and intimate’ relationship that ‘foster[ed] the jurors’ confidence’ in his testimony.” The Court weighed the factors finding, in disagreement with the California Supreme court that he was a key witness, but rejected the claim on the second factor as the bailiff had relative little contact with the jurors. The court held its deference on the second factor was not precluded by the finding on factor one that it was not entitled to deference, as they were two separate questions. Only the third step of the Batson analysis was disputed, i.e. purposeful discrimination. Using a comparative analysis to divine the prosecutor’s intent the court denied the claim. The court also denied the ineffective assistance of counsel claim finding that the California Court’s conclusion that Cummings was not prejudiced by his lawyers’ presentation of mitigation evidence at the penal phase was reasonable. [Justice Thomas would have granted the due process claim]


Shelton v. Marshall, No. 13-15707 [August 7, 2015]

Shelton v. Marshall

The court granted a habeas petition, on one murder count and denied it on a second murder count, based on Brady v. Maryland grounds, where the prosecution suppressed a material part of its deal with a key witness. The prosecution reached a plea agreement with a co-conspirator in which his defense attorney would refrain from having his client psychiatrically examined so that when he testified he could not be impeached and he would have his charges dismissed. The portion of the deal pertaining to the mental competency of the main witness against him was not revealed to Sheldon. The Court held that the California court’s decision that “it is difficult to conclude that anything favorable to petitioner was suppressed” is “contrary to clearly established law, as determined by the Supreme Court.” The Court reviewed the issue of whether the material was favorable to the defendant de novo as the state court did not reach the merits of this issue and found that there was a reasonable probability of a different result with the omitted evidence.


Rogers v. Ferriter, No. 13-35790 [August 5, 2015]

Rogers v. Ferriter

The court held that a Montana prisoner’s application for review of his sentence was “pending” [for tolling of the statute of limitations pursuant to 28 U.S.C. § 2244(d)(2)] during the time the Montana Supreme Court held it in abeyance so he could seek other state collateral review. Montana’s dual track system allows for post-conviction relief or modification of sentences from the Sentencing Review Division ((“SRD”), a three judge panel appointed by the Montana Supreme Court). The Court interprets Carey v. Saffold to hold that a application for state collateral relief is pending as long as it is “in continuance,” which commands the Court’s decision here, therefore as long as his state court SRD review was held in abeyance his case was "pending."


U.S. v. Winkles, No. 13-56376 [July 31, 2015]

U.S. v. Winkles

2255 action in which the petitioner appealed the denial of a Rule 60(b) motion, claiming that his petition should be reopened as he was prevented from filing by prison conditions and a lack of the trial transcript. The petitioner argued that he was not required to get a COA, which was denied by both the district court and the 9th. The court held that “in keeping with the Supreme Court’s holding in Harbison, the text of section 2253(c), and the policy underlying the statute – that a COA is required to appeal the denial of a Rule 60(b) motion for relief from judgment arising out of the denial of a section 2255 motion.” The standard from granting a COA after denial of a Rule 60(b) motion is that the movant must show “that (1) jurists of reason would find it debatable whether the district court abused its discretion in denying the Rule 60(b) motion and (2) jurists of reason would find it debatable whether the underlying section 2255 motion states a valid claim of the denial of a constitutional right.” Applying the standard, the court found he was not entitled to a COA and dismissed


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