Rainwater Law Group

Effective Criminal Defense

Tarango v. McDaniel, No. 13-17071 [March 3, 2016]

Tarango v. McDaniel

Tarango claimed a violation of his right to due process where a police vehicle followed Juror No. 2, a known holdout against a guilty verdict, for approximately seven miles, on the second day of deliberations, in a highly publicized trial involving multiple police victims. The Court held “that the Nevada Supreme Court’s decision was contrary to Mattox v. United States, 146 U.S. 140 (1892), because the court improperly limited its inquiry to whether the external contact amounted to a ‘communication’ and did not investigate the prejudicial effect of the police tail.” In Mattox the Supreme Court “established a bright-line rule: any external contact with a juror is subject to a presumption that the contact prejudiced the jury’s verdict, but the government may overcome that presumption by showing the contact was harmless.” Clearly established federal law requires a criminal trial court to consider the prejudicial effect of any external contact, whether or not it amounts to a “communication.” Further, the external contact need not be intentional. “Mattox and its progeny further establish that undue contact with a juror by a government officer almost categorically risk influencing the verdict.” The court also stated that “consistent with the anti-impeachment rule, this court permits the introduction of limited evidence of a juror’s state of mind to prove juror misconduct.” On de novo review it remanded to the district court to hold an evidentiary hearing to allow Tarango to establish prejudice.

UPDATE: The Court filed an amended opinion and dissent on Sept. 16, 2016, leaving the case substantially the same and denying a rehearing.

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​Lee v. Jacquez, No. 12-56258 [June 9, 2015]

Lee v. Jacquez

The court held that California’s Dixon rule, which prohibits California state courts from considering habeas claims that should have been raised on direct appeal but were omitted, is an adequate and independent state law procedural rule that bars federal review of Lee’s claim, but the state has failed to establish Dixon bar’s adequacy at the time of Lee’s procedural default. The state’s evidence which showed Dixon’s application as a percentage of all habeas denials filed during the relevant time period was insufficient to meet its burden, as it should have shown how many case the Dixon bar should have been applied to. Remanded back to the district court to consider her claims on the merits.

UPDATE: Based on the United States Supreme Court's decision in Johnson v. Lee, ___U.S.___, 136 S.Ct. 1802 (2016) the Ninth Circuit affirmed the judgment of the district court.

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Clark v. Ryan, No. 15-15531 [September 2, 2016]

Clark v. Ryan

Clark contended that an Arizona Court of Appeals decision that Arizona’s modern sex offender registration statute is not an ex-post facto law, as contrary to and involves an unreasonable application of clearly established federal law. The Court affirmed finding that the Arizona case’s finding that the sex offender registration statute is a civil, nonpunitive regime was not an unreasonable application of federal law in Smith v. Doe I, 538 U.S. 84 (2003) stating that “the Arizona Court of Appeals was not unreasonable in holding the statute’s punitive effects fail to outweigh its regulatory purposes.”


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