Rainwater Law Group

Effective Criminal Defense

Hinojosa v. Gibson, No. 13-56012 [September 25, 2015]

Hinojosa v. Gibson

The Court held that California’s 2010 amendment of good time credits, by eliminating them for prison-gang members and associates in segregated housing, violates the Ex Post Facto Clause of the United States Constitution when applied to a prisoner whose underlying criminal offense was committed prior to the amendment’s enactment. The Court found that because no state court decided his claim on the merits the AEDPA did not apply. Here, the state court decision denied his claim because it was filed “in the [im]proper venue. The court found that when “the last reasoned state-court decision rejects a federal claim solely on procedural grounds, any presumption that a subsequent summary denial decided the claim on the merits is rebutted.” Here, fortunately for Mr. Hinojosa, the state waived any state procedural ground as a defense by failing to raise such a claim.


Taylor v. San Diego County, No. 12-55030 [September 9, 2015]

Taylor v. San Diego County

Taylor was committed indefinitely for involuntary treatment as a sexually violent predator under California law. He raised two claims: 1) that California’s Sexually Violent Predator Act violates the Equal Protection Clause because it contains release procedures that are more onerous than those placed on other civilly committed detainees; and 2) the Act violates the federal Due Process Clause because it contains a burden-shifting scheme requiring the detainee to prove that he is no longer a sexually violent predator in order to terminate his commitment. The Court affirmed the state court denial of relief as not contrary to or an unreasonable application of controlling Supreme Court precedent. On the equal protection claim the Court found that, contrary to Taylor’s argument, LPS Act detainees are not similarly situated persons as they are not “similar in the respects pertinent to the State’s policy.” On the due process claim the court found that the applicable clearly establish federal law, Jones v. United States, 463 US 354 (1983), was reasonably relied on by the California Court of Appeal and that the other cases cited by Taylor were not clearly established federal law on the issue of re-commitment proceedings.


Wilkinson v. Gingrich, No. 13-56952 [September 3, 2015] Amended Opinion [November 3, 2015]

Wilkinson v. Gingrich

Wilkinson was charged and convicted of perjury after testifying at his traffic court trial, at which he was acquitted, that was not the driver of a car that was stopped for speeding. The Court found that under Ashe v. Swenson, the “principle of collateral estoppel embodied in the Fifth Amendment’s protection against double jeopardy . . . precludes relitigation of ultimate issues that were necessarily decided in a prior proceeding between the parties.” Because the traffic court found that he was not the driver of the speeding car, double jeopardy precluded the bringing of the perjury prosecution. The state court’s decision was not “fairminded disagreement” on an open question, but rather represented a fundamental misunderstanding of the Double Jeopardy Clause and the Supreme Court decisions that explain its purpose and operation.

Amended opinion filed and rehearing en banc denied November 3, 2015.


Elmore v. Sinclair, No. 12-99003 [September 3, 2015]

Elmore v. Sinclair

The court held that the Washington Supreme Court’s conclusion that Elmore was not deprived of his constitutional rights during his capital trial was not unreasonable under AEDPA and Harrington v. Richter. Specifically finding, that his due process rights were not violated where he was shackled in front of the jury on the first day of a twelve-day voir dire as he could not establish prejudice on these facts. Elmore also raised four ineffective assistance of counsel claims. Counsel was not ineffective in failing to object to the shackling due to the no prejudice findings. Counsel was not ineffective in not presenting mental health or brain damage evidence because his “remorse-oriented strategy” was not deficient performance. It found no deficient performance from counsel’s failure to object to the redaction of Mr. Elmore’s tape recorded statement where the redacted statements were read into the record. Counsel was not ineffective in advising Elmore to plead guilty because it would give him a better chance of avoiding the DP, because he failed to show prejudice as he failed to show that he would have pleaded not guilty and gone to trial. Where a juror failed to tell of his past sexual abuse his due process rights were not denied where the incidents were minor and not related to the charges in Elmore’s case.


Creech v. Frauenheim, No. 13-16709 [August 31, 2015]

Creech v. Frauenheim

Creech challenged his convictions for assault with a firearm and child endangerment alleging his Fourteenth Amendment Due Process rights were violated because the evidence was insufficient and that California’s determinate sentencing law violates the Sixth Amendment right to a jury trial. Using the “twice-deferential standard” under AEDPA the Court found it was not unreasonable for a state court to determine that a rational trier of fact could have found proof of guilt beyond a reasonable doubt of the charges particularly the element of present ability where Creech used a shotgun to shoot bird shot at a house he reasonable knew was occupied and given that an assault does not require that a victim suffers an injury. Further, as to the child endangerment the prosecution established a likelihood of great bodily harm to support a conviction. The court rejected the challenge to the California determinate sentencing laws as amended because it now allows the judge to “exercise broad discretion” to choose the appropriate term, instead of the previous presumption of the middle term as a sentence absence finding of factors to support an aggravated or mitigated term and that holding was not contrary nor an unreasonable application of Supreme Court law.


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