Rainwater Law Group

Effective Criminal Defense

Orona v. United States, No. 16-70568 [June 14, 2016]

Oronav. United States

Orona filed an application with the 9th Cir. seeking authorization to file a second or successive § 2255 motion raising a claim for relief predicated on Johnson v. United States, 135 S. Ct. 2551 (2015) because the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable. The Court further, clarified that the statute began to run from the date the right was made retroactively applicable to cases on collateral review. (Here, the date the Supreme Court decided Johnson, June 26, 2015.) The filing of initial second or successive applications tolled the 1-year statute of limitations because 1) Congress must have intended this to be the case as petitioner has no control over how long it will take to hear the petition and it would be unjust to let the period of limitations run, and; 2) Because the requirement of ruling on the second or successive application within 30 days is “hortatory, not mandatory,” it often takes longer than that time period to have court act, therefore, making it impossible to calculate in advance just how much less than a year they actually had. To trigger tolling, the application must allege the cliam or cliams for which authorization to file a second or successive motion is ultimately granted.


Loher v. Thomas, No. 14-16147 [June 17, 2016]

Loher v. Thomas

Loher raised a claim that he was forced to testify in violation of his rights to remain silent and to due process (the forced testimony was alleged when the court refused a request to continue the trial because his witnesses were not present and ordered the defense to proceed with Loher’s testimony). Loher argued that the rejection of his “forced testimony” claim involved an unreasonable application of Brooks v. Tennessee, 406 U.S. 605 (1972). (Finding a violation where a defendant was required to testify before his witnesses.) The court found that it was an unreasonable application of Brooks because it “did not address a trial court’s extemporaneous denial of a continuance, sought in order to procure defense witnesses, where the defendant was responsible for the absence of such witnesses.” The court then held that the State had “waived any challenge to the district court’s grant of relief for ineffective assistance of appellate counsel.” Here, the State did not argue that the district court grant of relief on IAAC should be reversed, Loher argued in his brief that the issue was, therefore, waived, and the State did not address the issue in its reply brief. The Court further found that the State also waived Loher’s Apprendi claim to his enhanced sentence. Remanded to the district court for a decision on the appropriate remedy, as a retrial or dismiss, would not address the claims that were granted. The Court suggested a resentencing on the Apprendi claim and that an appropriate remedy for the IAAC claim would be a new appeal.


Goodrum v. Busby, No. 13-55010 [June 9, 2016]

Goodrum v. Busby

The district court concluded that Mr. Goodrum’s petition was a “second or successive” petition and dismissed. The Ninth Circuit held that his petition was not, in fact, “second or successive. Goodrum file a petition in district court, while a petition was pending in the California Supreme Court, alleging his already exhausted claims. When the California Supreme Court denied Goodrum's petition, instead of amending his petition, he filed for a “second or successive” petition in the 9th. Because Goodrum misinterpreted the Court's order telling him to file in the district court, he instead litigated his first petition and after its denial again filed for a “second or successive” petition in the 9th. Courts as “a general principle” have ruled that a petition will not be deemed second or successive unless, at a minimum, an earlier-filed petition has been finally adjudicated. “Thus, when a petitioner files a new petition while his first petition remains pending, courts have uniformly held that the new petition cannot be deemed second or successive.” If, as here, the “district court improperly dismisses the second-in-time petition instead of construing it as a motion to amend, the case must be remanded so that the petition can be adjudicated under the standard applicable to first petitions.” This same rule applies equally to the 9th circuit. Because here the 9th failed to clearly inform Goodrum of the need to file in district court, the Court held that Goodrum was affirmatively mislead as to the reason for the denial of his second or successive and is entitled to a remedy. The Court remanded with instruction to adjudicate his petition as a first petition.


Runningeagle v Ryan, No. 07-99026 [June 10, 2016]

Runningeagle v. Ryan

On review after a limited remand to consider the effect of Martinez v. Ryan on the petitioner’s procedural default. The district court found that the petitioner did not show cause under Martinez, failing to show either ineffective assistance or prejudice, and dismissed the petition.


Currie v. McDowell, No. 13-16187 [June 8, 2016]

Currie v. McDowell

Currie’s prosecutor, Mr. Brown, has a “history of unconstitutional race-based peremptory strikes.” See Johnson v. California, 545 U.S. 162 (2005). Mr. Brown’s reasons for striking an African American juror “were all flawed – each reason was either unreasonable, demonstrably false, or applied just as well to the non-black jurors Brown allowed to remain on the jury.” Because the constitution forbids striking even a single prospective juror for a discriminatory purpose Court ruled that Currie’s habeas petition should be granted.


Sifuentes v. Brazelton, No. 13-17603 [February 18, 2016]

Sifuentes v. Brazelton

The Ninth Circuit reversed the granting of a habeas petition based on a claim of Batson error where the prosecutor excused nine black prospective jurors in Sifuentes’s trial for first-degree murder of a police officer. The panel applied the “doubly deferential standard” for reviewing a Batson error and found that Sifuentes failed to carry his burden of showing the prosecutor acted in a purposefully discriminatory way and the California court of appeal decision was not based on an unreasonable determination of the facts. “The double deferential standard means that ‘unless the state appellate court was objectively unreasonable in concluding that a trial court’s credibility determination was supported by substantial evidence, we must uphold it.’” Applying this standard requires two steps: 1) the court must review the relevant portions of the record and use ordinary analytic tools to evaluate the prosecutor’s race-neutral explanations; 2) after reviewing the prosecutor’s explanations in light of the evidence in the record, we turn to the state appellate court’s decision and ask whether the state appellate court was objectively unreasonable in upholding the trial court’s determination. Using this standard, the court analyzed each of the stricken jurors and concluded that the finding was not unreasonable. The court further denied Sifuentes’s argument that the trial court erred in precluding him from rebutting the prosecutor’s explanations for four of his strikes of prospective jurors, and this error was not harmless under Brecht. The California court of appeal concluded that this was error but was harmless. Finding that no clearly established federal law, as determined by the Supreme Court, establishes a constitutional right “when the trial court declines to allow the defendant to participate in the trial court’s Batson colloquy with the prosecutor,” the court as the Supreme Court did in Ayala assumed for the sake of argument that it was federal constitutional error. The court then turned to the issue of prejudice. “In sum, a petitioner ‘necessarily cannot satisfy’ the Brecht requirement of showing that he was ‘actually prejudiced’ by the state court’s error in receiving the prosecution’s explanation for a challenged strike without the defense present ‘if a fairminded jurist could agree with the [state appellate court] that this procedure met the Chapman standard of harmlessness. By the same token, if a petitioner does satisfy the Brecht requirement of showing that an error resulted in ‘actual prejudice,’ then the petitioner necessarily must have shown that the state court’s determination that the error was harmless was objectively unreasonable.” Citations omitted. Here, they found that a reasonable jurist could conclude that the California Court of Appeal’s application of Chapman was not objectively unreasonable.

UPDATE: On June 9, 2016, the court issued an order and amended the petition and denying a petition for rehearing en banc. The amendment did not change the substance of the opinion.


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