Criminal Appeal

House Bill on Split. Via How Appealing, Rep. Sensenbrenner, House Judiciary Chair, has introduced a split-the-ninth/add-some-judges bill (H.R. 4093): California & the islands remain in the 9th; everything else in the new 12th. (That's the same split proposed in S. 1845.)

Summary Reversal of Ninth Circuit AEDPA Decision Predicted for Monday. Tom Goldstein at SCOTUSblog is predicting a summary reversal in a Ninth Circuit state-prisoner habeas appeal, Kane v. Espita, no. 04-1538, which has been re-listed three times:

04-1538, Kane v. Espita - the question is

Did the Ninth Circuit exceed its authority under 28 U.S.C. § 2254(d) when it granted habeas relief solely on the basis of its own circuit precedent that an incarcerated defendant who chooses to represent himself has a Sixth Amendment right of access to legal materials to assist him in preparing a defense, even though five other circuits have held that no such right exists and this court has never addressed the issue?

The case has been re-listed three times and the record requested. Given that the petitioner is the government, the case comes from the Ninth Circuit, and it presents a habeas question, the best bet is a summary reversal Monday.

In its unpublished memorandum disposition in this case, the court of appeals cited two of its own prior decisions to hold that a pro se criminal defendant's right to access to a law library is clearly established by U.S. Supreme Court authority: "Reversal is required in the instant case because, under Bribiesca and Milton, the lack of any pretrial access to lawbooks violated Espitia's constitutional right to represent himself as established by the Supreme Court in Faretta." Bribiesca v. Galaza, 215 F.3d 1015, 1020 (9th Cir. 2000), a post-AEDPA case as noted by the court in Kane, in turn, relies on a pre-AEDPA case, Milton v. Morris, 767 F.2d 1443, 1446 (9th Cir. 1985), for the specific point about access to a law library. The court noted the the contrary authority from other circuits, but concluded, "we are not writing on a blank slate in determining what constitutes clearly established federal law as determined by the United States Supreme Court: we are bound by the prior panel’s opinion." 

Interestingly, the Ninth Circuit has been struggling with such issues very recently. Last week, several judges dissented from the denial of rehearing en banc in an AEDPA case, complaining that "The panel evades" the AEDPA limit on granting relief only where the state court decision is contrary to clearly established U.S. Supreme Court authority, "by holding that we give 'persuasive weight' to Ninth Circuit cases when determining what is 'clearly established Federal law, as determined by the Supreme Court.'" Musladin v. Lamarque, no. 03-16653.

Stanford Law Review Sentencing Issue: This week, the Stanford Law Review is  publishing a special issue on the challenges of criminal sentencing reform and improvement: “A More Perfect System: Twenty-Five Years of Guidelines Sentencing Reform”.

Check out the table of contents here.

Latest Circuit-Split Bill. Steve Kalar (AFPD NDCAL), at the Ninth Circuit Blog, reported recently on the newest bill (S.1845) that would split the ninth circuit:

The split would leave California, Hawaii, and the Pacific Islands in the Ninth, and create a new Twelfth Circuit with Alaska, Washington, Oregon, Idaho, Montana, and Arizona. It would increase the number of judges authorized for the new Twelfth Circuit, and add new cities to the rotation of the Court.

And Howard How-Appealing Bashman notes that hearings began today before the  Senate Judiciary Committee's Subcommittee on Administrative Oversight and the Courts. He also links to Judge O'Scannlain's (no, it's not "Scannlain", as you may have read elsewhere) prepared remarks supporting the split.

Of course other judges also appeared and their testimony is also available: Chief Judge Schroeder, Judge Kozinski, Judge Kleinfeld (supports three-way split), Judge Thomas, Judge Tallman (supports split), District Judge Huff (SD Cal.), District Judge John Roll, (D. Ariz.).

Comment on Draft Report and Proposed Rule Change on Criteria for Publication of California State Court Opinions. No major change is proposed, but some changes in the criteria for publication are being considered. The Cal. Supreme Court invites comments on the draft report and proposed rule change.

Pending Ninth Circuit En Banc Questions in Criminal and Habeas Appeals (With Links to Oral Argument Audiofiles):

Note: some of the summaries are taken from the court's 10/17/05 list of pending en banc cases; I can't vouch for their accuracy or completeness.

Batson/Mixed-Motive Peremptory Challenges/standard for review of mixed-motive (both permissible and impressible reasons used to challenge juror) peremptory challenges. Companion case Kesser v. Cambra, 392 F.3d 327 (9th Cir. 2003), en banc rehearing granted 10/17/05; companion case: Leahy v. Farmon, no. 01-17467. Not yet calendared

Hobbs Act. Sufficiency of evidence of indirect effect on interstate commerce for Hobbs Act prosecution arising out of robbery and murder. U.S. v. Lynch, no. 02-30216, rehg en banc granted 9/23/05.

Breach of Plea Agreement. Buckley v. Terhune, no. 03-55045, rehg en banc granted Aug. 2, 2005; argued (audiofile) 9/27/05; submission deferred 10/7/05 pending mediation. The habeas claim was essentially for specific performance of the plea agreement in which the promised sentence was a determinate term of 15 years for second degree murder (rather than the statutory term of 15-years-to-life).

Search & Seizure (probable cause supporting to search computer for child porn). U.S. v. Gourde, no. 03-30262, 382 F.3d 1003 (9th Cir. 2004), reh'g gr. 7/14/05; argued (audiofile) 9/27/05. Three-judge panel found: 1. Warrant was sufficiently particular; 2. Warrant was not supported by probable cause. Too many inferences required. For 2 months, D subscribed to online porn site claiming to have thousands of images of teenagers. Numerous inferences were required to get from there to suspicion of D's possession or child porn, such as: images were children not adult, D knew they were children despite site's disclaimer that complied with federal law, that D actually downloaded rather than viewing or using site for other legal purpose, that D possessed any downloads 4 months after last had access to site. 3. Search not saved by Good Faith Exception. Court seemed impressed that gov't had the time to get much more information. Note: Judge Gould concurred. He might have found probable cause supporting warrant were he not controlled by circuit precedent.

Search & Seizure (legality of parole search where parole officer, but not searching officers, knew that the parolee was in custody and not at the residence searched): Motley v. Parks, no. 02-56648, 383 F.3d 1058, reh'g gr. Mar. 21, 2005; argued (audiofile) June 23, 2005.

Death Penalty Habeas: Landrigan v. Schriro, no. 00-99011, reh'g gr. Feb. 14, 2005; argued (audiofile) Mar. 24, 2005; submission withdrawn pending disposition of Summerlin v. Schriro, 98-99002 (decided Oct. , 2005).

Two FPD's Re-Appointed. The Ninth Circuit has reappointed two long-serving FPD's:

Thomas Hillier II was reappointed to a seventh term as federal public defender for the Western District of Washington. Mr. Hillier was first appointed to the position in March 1982 and reappointed in 1986, 1990, 1994, 1998 and 2002. His seventh term begins March 3, 2006.

* * *

Franny A. Forsman was reappointed to her fifth term as federal public defender for the District of Nevada. Ms. Forsman was first appointed to the position in December 1989 an  reappointed in 1994, 1998 and 2002. Her new term is effective March 2, 2006.

SCOTUS: Per Curiam Reversal of Sixth Circuit in Federal Habeas Case. Dye v. Hofbauer, no. 04-8384 (Oct. 11, 2005).

In a unanimous opinion, the full court (yes, Justice Roberts participated) summarily reversed the Sixth Circuit, finding both grounds used to deny habeas relief were wrong. No new law here, just a poor reading of the record by the Sixth Circuit.

Lesson One (for courts): read the record. First, the Sixth Circuit concluded that because the state appellate briefs were not in the record, it could only look to the state court of appeal opinion to determine whether the claim was exhausted. Problem with that approach, however, was that the state court brief actually was in the state court record. That brief, moreover, adequately exhausted the federal due process basis of the prosecutorial misconduct claim by mentioning "due process" in an argument heading, citing the 5th & 14th Amendments in the text, and citing federal cases. More than adequate.

Lesson Two (for petitioners): it's o.k. to incorporate an attached brief by reference. The Sixth Circuit's second mistake was its conclusion that the prosecutorial misconduct claim was "too vague and general in form." The petition made "repeated references to an appended supporting brief, which presented Dye's federal claim with more than sufficient particularity." This is reassuring for state court practitioners who, when the direct appeals end, recommend that their clients use the pro per federal habeas form and that the client describe the claims as best they can in the form petition, but also to refer, in the form, to an attached brief, perhaps even the state court appellate brief/petition (assuming the state court brief adequately presented the federal claim). Ideally, an argument should be adapted to federal court, addressing the AEDPA standards, Brecht, etc. But it simply is not possible for state court counsel to follow all cases to federal court.

Ninth Circuit En Banc Panels Grow from 11 to 15.  As the press release notes, "The larger court will constitute a majority of the court’s 28 authorized judges." (That doesn't mean the en banc holdings necessarily will be joined by a majority of the court, that will only happen when the en banc decision is unanimous.)

The new rule is effective 1/1/06, although it's not clear from the press release whether it applies to cases with a hearing held after 1/1/06 or to cases granted en banc review after 1/1/06. The amended rule does not appear to be posted yet.

Criminal Defense Attorneys Overlooked Again For Opening On High Court. In a surprising move, President Bush has twice in a matter of months passed up an opportunity to appoint a criminal defense attorney to the U.S. Supreme Court, appointing, instead, Harriet Miers to Justice O'Connor's seat. While one couldn't exactly say there is a "criminal-defense seat" on the Court, most court-watchers fully expected one of the two recently opened seats would go to a defense attorney. I'm sure Ms. Miers's lack of criminal defense experience will be a topic of great interest to the Judiciary Committee, and could perhaps jeopardize the nomination.

Meanwhile, in California, it is stil expected that Governor Schwarzenegger will appoint a public defender or a criminal appellate panel attorney to replace Janice Rogers Brown.

State Blakely Cases Make Their Way to Supreme Court. Cert. petitions are pending in Blakely cases from California, Indiana, and Hawaii. I haven't conducted a comprehensive search, so there may be many more. But these are the cert petitions I know about and their status:

• Abeyta v. California, no. 05-5747, state waived response, distributed for conference of Oct. 7;
• Cunningham v. California, no. 05-6551, state's response due Oct. 24;
• Smylie v. Indiana, no. 04-10472 state's response, upon request of the Court, filed 9/21 (consecutive sentence issue only);
• Gomez v. Tennessee, no. 05-296, state's response due 10/6;
• Ramirez v. Hawaii, no. 04-9671 originally on conference list of May 26, but response was ordered; state filed response on July 15, distributed for conference of Sept. 26. Update: cert. denied 10/4/05.