Rainwater Law Group

Effective Criminal Defense

Williams v. Cavazos, No. 07-56127 [May 27, 2016]

Williams v. Cavazos

On remand from the US Supreme Court, the Court affirmed the denial of a habeas petition alleging that the trial court’s dismissal of a holdout juror during deliberations violated her 6th Amd. rights. Based on the Supreme Court’s holding that the the presumption of a federal claim being adjudicated on the merits applied here and that the Ninth Circuit previous erred in reviewing the claim de novo it affirmed the district court apply a deferential standard. Judge Reinhardt would have reversed finding that the state court findings on the reason the jury was excused was an unreasonable finding of fact.

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Smith v. Ryan, No. 14-99008 [May 26, 2016]

Smith v. Ryan

Smith claims that his 6th Amd. rights were violated by hearsay testimony of the medical examiner who conducted the autopsy of one of the victims at his sentencing hearing. The Court found no clearly established Supreme Court right to confront witnesses at sentencing, thereby, precluding his claim. Smith argued that his constitutional rights were violated by introduction of prior crime evidence at his penalty-phase hearing. In denying this claim the Court found that the state court finding that the evidence was relevant to his sexual sadism diagnosis evidence and that it did not render his trial fundamentally unfair was not an unreasonable application of clearly established federal law. Neither did this evidence violate his 8th Amd. rights or the Ex Post facto clause. The court also denied his challenges to the Arizona death penalty process on vagueness grounds. Finally, the Court denied his ineffective assistance of counsel claim, for failing to present new evidence of organic brain damage, at his resentencing proceedings as it was procedurally defaulted. The procedural default could not be overcome by Martinez v. Ryan as the Court found the ineffective assistance of counsel claim was not substantial.

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Rodriguez v. Copenhaver, No. 14-16399 [May 25, 2016]

Rodriguez v. Copenhaver

Rodriguez filed a 2241 habeas petition challenging the BOP’s denial of a discretionary nunc pro tunc designation of a state prison for service of his federal sentence pursuant to 18 U.S.C. § 3621(b). The Court held that the district court erred by dismissing the petition for lack of jurisdiction because it had jurisdiction to consider his “claims as the BOP violated the Constitution, exceeded its statutory authority, or acted contrary to established federal law.” The court further held, “that the BOP acted contrary to 3621(b)(4) requirement that the BOP consider “any statements by the court that imposed sentence” when it relied on a letter from a judge who was not the sentencing judge and who had been formally recused as having an actual conflict. Remanded to consider Rodriguez’s request without the letter from the recused judge


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Carrillo-Carrillo v. Coursey, No. 14-35897 [May 24, 2016]

Carrillo-Carrillo v. Coursey

The district court dismissed Carrillo’s petition with prejudice after concluding that he had not fairly presented his claims to the Oregon state court first, as he was required to do. The Court disagreed finding Carrillo gave the Oregon courts a fair opportunity to rule on his claims and remanded to the district court for a hearing on the merits. Carrillo’s petition raised a claim of ineffective assistance of counsel as his “counsel had unduly pressured him into pleading no contest, and that as a result he did not enter his plea knowingly and voluntarily.” Under Oregon law a petitioner can properly present his claims to the Court of Appeal by attaching a copy of his PCR petition to his Balfour brief.” Here, he not only attached a copy but reference it in his part of the Balfour brief. (For the same reasons he also properly submitted his claims to the Oregon Supreme Court.) The court further found, his additional claims of relief related to his trial counsel’s ineffectiveness were not separate and distinct claims for relief and, therefore, were properly presented as they stated the reasons he felt pressured to enter a plea.


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Gimenez v. Ochoa, No. 14-55681 [May 9, 2016]

Gimenez v. Ochoa

In a second petition, the court decides whether Gimenez’s claims are barred as successive. The second petition alleged that 1) his counsel rendered ineffective assistance; 2) he was convicted based on false expert testimony (shaken baby syndrome “SBS”); and 3) his due process rights were violated when he was convicted based on flawed scientific evidence even though he was innocent. The first claim, ineffective assistance of counsel in the use of experts was the same as the previous petition, under the “substantial similarity rule,” and was, therefore, dismissed. This was true even though in his second petition presented additional documents supporting his argument. As to the due process claim the court found that he didn’t demonstrate “constitutional error” from the introduction of false testimony, finding the new testimony was “simply a difference of opinion – not false testimony. As to his actual innocence claim the district court found that “a conviction based on the most up-to-date knowledge in the past transforms to a violation of due process when that knowledge is modified in ensuing years.” The Ninth cautioned that “courts have long considered arguments that the introduction of faulty evidence violates a petitioner’s due process right to a fundamentally fair trial – even if that evidence does not specifically qualify as ‘false testimony. . . . Nothing compels a different rule for a challenge brought in a successive petition to expert testimony about discredited forensic principles or other junk science. Indeed, recognizing such a claim is essential in an age where forensics that were once considered unassailable are subject to serious doubt.” [with a long citation to instances of junk science examples.] In Gimenez’s case he failed to show that permitting the prosecution’s experts to testify based on a triad-only theory of SBS was “so extremely unfair that it violated fundamental conceptions of justice.” Finding the literature presented did not so a repudiation but a vigorous debate about SBS’s validity within the scientific community. It also denied his freestanding actual innocence claim because he could not establish he was “probably innocent” because his new evidence would have bolstered his claim at trial it doesn’t that probable innocence. The court invites Gimenez to make a further petition as future forensic science continues to evolve.


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Rishor v Ferguson, No. 14-36071 [May 6, 2016]

Rishor v. Ferguson

Mr. Rishor represented himself at his trial. On this habeas petition, he alleges that he did not validly waive counsel and that the State violated double jeopardy principles on remand. The district court granted his petition after the filing of a motion for reconsideration. Rishor appealed his sentence and it was reversed on an erroneous jury instruction. He claims that he did not valid waive his right to counsel on remand. The Washington Supreme Court denied his claim on the grounds that he validly waived his right to counsel before his original trial and that he was “more than ready to proceed pro se” on remand. The court construed Rishor’s motion as a motion to alter or amend the judgment under Federal Rule of Civil Procedure 59(e) as the rule does not include motions for reconsideration. The question “presented, therefore, is whether Rishor’s Rule 59(e) motion is subject to the additional restrictions that apply to ‘second or successive’ habeas corpus petitions under the provisions of the AEDPA.” The Court held that “a Rule 59(e) motion that raises entirely new claims should be construed as a second or successive habeas petition subject to AEDPA’s restrictions. A Rule 59(e) motion raises a ‘new claim’ when the motion seeks to add a ground for relief not articulated in the original federal petition, presents newly discovered evidence, or seeks relief based on a subsequent change in the law. In contrast, a timely Rule 59(e) motion that asks the district court to ‘correct manifest errors of law or fact upon which the judgment rests’ should not be construed as a second or successive habeas petition.” After evaluating Rishor’s motion for reconsideration the court found that it did not raise any new claims that should be construed as a second or successive petition. The court went on to hold that the district court erred in finding the state court unreasonably applied clearly established Federal law, because the Supreme Court has not addressed the issue of whether on a second trial a waiver is need when it was properly given in the first trial. Therefore, since fairminded jurist could disagree as to whether Rishor’s original waiver of counsel remained intact throughout his criminal prosecution, the court reversed and denied his petition. The court additionally found that the state's refiling of the charge the jury acquitted him of in the first trial was not a violation of double jeopardy.

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