Rainwater Law Group

Effective Criminal Defense

Brooks v. Yates, No. 12-17607 [March 28, 2016]

Brooks v. Yates

Brooks appeals from the denial of his motion for relief from
judgment under FRCP 60(b) following the district court’s dismissal of his
habeas petition as untimely. Brooks first raised a theory of relief under Rule
60(b) on the grounds of “actual innocence.” The Court finds a lack of support for
the contention that actual innocence constitutes an “extraordinary circumstance”
for Rule 60(b)(6) and even assuming that is true his claim fails as 1) “Brooks
has fallen well short of raising ‘sufficient doubt about [his] guilt to
undermine the confidence in the result of the trial’” and 2) the evidence he
relies on was available when he filed his initial habeas petition, thus is not ‘new’
for purposes of Rule 60(b). Secondly, Brooks alleged that his counsel gross negligence
amounted to virtual abandonment which is an “extraordinary circumstance.” The
Court found an abuse of discretion in the district courts in finding that
Brooks’ counsel did not abandon him. Here, the DJ improperly focused its
inquiry on counsel performance leading up to the filing of the habeas petition’s
late filing and determining that because counsel’s miscalculation was simple
negligence Brooks was not entitled to equitable tolling; it should have,
focused on “whether ‘extraordinary circumstances prevented [Brooks] from taking
timely action to prevent or correct an erroneous” dismissal of the petition.
The Court found that the record demonstrated that Brooks’ counsel was grossly
negligent in his representation of Brooks at the time the district court
ordered Brooks to show cause why his petition should not be dismissed as
untimely.” The court remanded to the DJ to make findings regarding whether Brooks
was reasonably diligent in pursuing his rights. Judge Kozinski rights
separately to describe counsel as “a hazard to clients, a menace to the
profession and to the courts, suggesting that the Calif. State Bar look into
the matter.

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Habeas Corpus Resource Center v. DOJ, No. 14-16928 [March 23, 2016]

Habeas Corpus Resource Center v. DOJ

The Court reversed the district court’s decision on summary judgment and remanded with instructions to dismiss finding that the plaintiffs “did not have standing to bring this action based on their theory of direct injury. The plaintiff had challenged Arizona’s regulations for the “Fast-tracking” of capital habeas petitioners. Furthermore, the court declined to grant a limited remand as the Attorney General has not yet made any certification decisions [based on the Arizona regulations] and thus the challenges to the procedures and criteria set forth in the regulations are not yet ripe for review.

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Frost v. Gilbert, No. 11-35114 [March 21, 2016]

Frost v. Gilbert

En banc court on remand from the Supreme Court affirmed the denial of his habeas petition challenging his conviction on charges stemming from his participation in a spree of armed robberies and a burglary. Frost claim the court erred in denying his request to argue to the jury that the state hadn’t met its burden of proof and in the alternative that he committed the crimes under duress. When forced to make a choice Frost choose to argue duress. The Court previously found the restriction on his argument structural error and reversed. The Supreme Court reversed that finding and the Court now found that the error was not prejudicial as the jury heard overwhelming evidence as to his guilt. The more difficult issues were his newly raised claim of Brady and Napue error. Frost claim that the prosecution withheld exculpatory evidence of a prosecution witness and that it allowed the witness to testify falsely “about the existence of that exculpatory evidence.” After granting Frost a certificate of appealability on this issue the Court found that he had not establish prejudice as there was no “reasonable likelihood” that the prosecution’s witness’s false testimony about only having one plea agreement could have “affected the judgment of the jury” in spite of finding the conduct of the DA “troubling” and amounting to “professional misconduct.”

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Daire v. Lattimore, No. 12-55667 [March 15, 2016]

Daire v. Lattimore

This well-traveled case was remanded back to the three-judge panel after the en banc court reversed its prior decisions to the contrary and held that the Supreme Court has clearly established that Strickland governs claims of ineffective assistance of counsel at sentencing in non-capital cases. The three-judge panel reinstated it previous opinion finding that even applying Strickland the state court’s decision finding that trial counsel’s performance did not fall below an objective standard of reasonableness and that submission of the petitioner’s medical evidence would not have changed the outcome of her Romero hearing [asking the court to disregard two of her prior strikes for sentencing] were not unreasonable applications of Strickland.

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Burton v Davis, No. 13-55328 [March 10, 2016]

Burton v. Davis

Burton, twice before trial and again during trial, made motions to represent himself under Faretta. His motions were denied as his request included additional time to prepare and he asked that the trial date be continued. The court found the California Supreme Court’s decision contrary to federal law and affirmed the granting of the writ. The California Supreme Court rejected Burton’s argument that under federal law the court was required to grant a Faretta motion if made prior to trial unless it “made for the purpose of securing delay” and found that 9th Cir. Case law was “too rigid in circumscribing the discretion of the trial court.” Instead, the court applied its own rules that “a request is timely if made a ‘reasonable time’ before trial but is ‘addressed to the sound discretion of the trial court’ if made at a later time.” Finding that his request was not made a “reasonable time” before trial and that the court did not abuse its discretion in denying the motion the State court denied his claim. Since this was a pre-AEDPA case the State conceded that 9th Cir. case law on timeliness rule applies, but, nevertheless, urged the Court to find that the motions were made for the “purpose of delay.” The district court found that Burton’s reasons for asserting his right to represent himself was legitimate and not for the purpose of delay and granted his habeas petition. The Court found, first, that the State court’s decision was contrary to the federal Constitution, as interpreted by its cases law. Because the State court failed to consider his claim using federal law, it was appropriate for the district court to determine the timeliness of Burton’s Faretta motions in the first instance. Because the California Supreme Court’s decision did not address Burton’s claim under federal law the district court found that it never addressed the issue of “whether Burton intended to delay the trial and, therefore, the district court did not need to give the state court findings the presumption of correctness to that factual finding required under the previous version of 2254. The 9th circuit disagreed with that analysis but found that the state court decision fell under the last exception to 2254(d) that the state court findings were not fairly supported by the record and affirmed. The court summarized its decision by stating, “we conclude that the district court was entitled to determine Burton’s purpose in seeking to represent himself. We reach this conclusion for two independent reasons. First, ‘[t]here was . . . no relevant state court finding to which deference was due . . . Second, the Frierson proceeding before the California Supreme Court did not afford Burton a full, fair, and adequate hearing on the timeliness of his Faretta requests.” Finally, finding that the district court “did not clearly err in finding that Burton’s Faretta requests were made for legitimate, not purely dilatory, reasons” it gave due deference to the district court’s factual findings and affirmed its decision.

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