Criminal Appeal

En Banc Review Granted in Ogles v. US

On Nov. 16, the 9th circuit granted en banc review in Ogles v. United States, nos. 03-10439, 04-10069, 406 F.3d 586 (9th Cir. 2005). It appears from the three-judge opinion (and partial dissent), that the live issue here is whether 18 USC § 922(a)(1) criminalizes firearm dealing by a licensed dealer who sells the firearm outside the state in which he is licensed. That section states "“It shall be unlawful ... for any person ... except a ... licensed dealer[ ] to engage in the business of ... dealing in firearms ....”

Calendared: December 14, 2005, 8:30 a.m., Portland

Circuit Spilt

I've created a sub-page with information on the proposed split of the Ninth Circuit.

It's still a work in progress and there may be a glitch or two.

Cal.Ct.App.: Anders Does Not Apply to SVP Appeal

People v. Torres, no. C048309 (Cal.Ct.App. 3d Dist.; Nov. 8, 2005): in a unanimous opinion authored by Justice Cantil-Sakauye, the Court held that Anders is inapplicable to appeals from commitment or recommitment orders in Sexually Violent Predator (SVP) cases. The Court concluded that Anders itself only applies to a criminal defendant's first appeal of right and that an Anders-like procedure is not compelled by fundamental fairness.

This case may be destined for review. As noted in footnote 2, on page 5, of the opinion, review is pending in the California Supreme Court in cases in which the Courts of Appeal held that Anders does not apply to other California civil-commitment proceedings: Conservatorship of Ben C., no. S126664 (LPS Commitment) and People v. Smith, no. S133593 (MDO) (briefing stayed pending Ben C.)

Feinstein Prepared to Block Back-Door Circuit-Split: Read the 11/2/05 press release here read the Senator's entire 11/11/05 Recorder Op-Ed here (membership required). The Senator views inclusion of the split in a budget bill "a huge mistake" and she will block the entire budget bill if necessary to remove the split from a bill where it does not belong:

I believe splitting the Ninth Circuit on a budget bill is a huge mistake, denying this significant decision the consideration it deserves. It is a lose-lose proposition, one with clear financial costs and clear costs to the administration of justice. I very much regret that the House Budget Committee saw fit to take this unprecedented action. It comes during the period that the Senate Judiciary Committee is exploring a number of proposals regarding the circuit — this review should be allowed to run its course.

If a split remains on the Conference Committee report when it comes back to the Senate, it will leave Sen. Barbara Boxer and me with no other alternative but to raise a point of order, which would require supporters of the split to get 60 votes to keep the measure in the bill. This could bring down the entire bill, so it is my hope that cooler heads will prevail and the split would be removed from a bill where it does not belong.

Ninth Circuit November Screening/Motions Panel: Wallace, Leavy, Berzon.

Note: Judges Wallace and Leavy are both senior circuit judges. Their service---and it's not easy work---on the motions and screening panel is entirely voluntary. (Ninth Cir. Gen. Order 6.2(a).) (Judge Sneed is the only senior judge I recall sitting on oral screening/motions panels when I was a staff attorney in the late '80s/early '90s.)

State Blakely Cases Update (still pending cases in green; cert. denied cases in red):

California Cases

• Cunningham v. California, no. 05-6551; response requested 11/8; response due 12/8);
• Black v. California, no. 05-6793, no response filed (reseponse was due Nov. 4) (this was the lead case in California);
• Picado v. California, no.05-7321 (filed 11/2; response due 2/2);
• Abeyta v. California, no. 05-5747, state waived response, cert. denied Oct. 11;

Other States:

• Gomez v. Tennessee, no. 05-296, state's response filed Oct. 3; distributed for conference of Nov. 4 (not on following Monday order list);
• 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;
• Smylie v. Indiana, no. 04-10472 state's response, upon request of the Court, filed 9/21 (consecutive sentence issue only), cert. denied Oct. 31

State Blakely Cases Update (still pending cases in green; cert. denied cases in red):

• Abeyta v. California, no. 05-5747, state waived response, cert. denied Oct. 11;
• Cunningham v. California, no. 05-6551, state's response due Oct. 24; no response docketed as of Nov. 1;
• Black v. California, no. 05-6793, response due Nov. 4 (this was the lead case in California).
• Picado v. California, no. ____ (not docketed yet)
• Smylie v. Indiana, no. 04-10472 state's response, upon request of the Court, filed 9/21 (consecutive sentence issue only), cert. denied Oct. 31;
• Gomez v. Tennessee, no. 05-296, state's response filed Oct. 3; distributed for conference of Nov. 4;
• 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.

Wild Speculation: Despite the denial of cert. in Abeyta, there's still a chance the Court will take a California case. In Abeyta, like many California cases, the Cal. Supreme Court denied review without prejudice to any relief available following the Court's decisions in Black and Towne. All this meant was that habeas relief might be available if the court held, in either Black or Towne, that the California sentencing scheme violated Blakely; there is no way to reopen a direct appeal once review is denied. Although the Cal. Supreme Court resolved the main question in Black, Towne is still pending. SCOTUS might have been uncomfortable with the finality of Abeyta, perceiving some relief still being possible because Towne is still pending. (We don't know for sure why the Cal. Supreme Court has not dismissed review in Towne. One thing is for sure: it's not because the court plans to revisit the basic question of whether Blakely applies to California's Determinate Sentencing Law. It's probably because Towne involves a twist not present in most cases: the jury acquitted the defendant of the allegation the court ultimately used as an aggravating factor. It's possible the reason the court has neither dismissed Towne in light of Black nor calendared it for argument is that there is a 3-3 split on what to do, and we may have to wait until the governor replaces Janice Rogers Brown.)

In any event, Cal. Blakely cases without any finality problem (real or perceived) have now reached the court. (E.g. Black and Picado.) And there are many more to come. Many California cases were held in the Cal. Supreme Court pending Black. Review was dismissed in many of those cases in early September. New opinions are now issuing in the courts of appeal, applying Black of course. Soon, if not already, second rounds of petitions for review in the Cal. Supreme Court will be filed in those cases. (I have two such cases in which I will be filing such petitions for review in the next few weeks.) Those cases won't decided by the California Supreme Court until a month or two until after they are filed. There then may be a wave of case hitting the U.S. Supreme Court.

On the other hand, SCOTUS may be tired of all this and want a year off before resolving the split (Cal./N.M./Tenn v. N.J., et al.).

Pro Se Criminal Defendant's Right to Access to Law Library Not Clearly Established.  That's the Supreme Court's holding in Kane v. Espitia, no. 04–1538, a summary reversal of the Ninth Circuit. Tom Goldstein of SCOTUSblog predicted this result. My speculation that the Court might address the propriety of relying on earlier circuit decisions to determine what is clearly established U.S. Supreme Court authority, however, was incorrect. The opinion did not directly address that AEDPA-weight-of-circuit-authority question.

This case highlights how AEDPA might be stunting the evolution of criminal law (in addition to leaving intact unconstitutional convictions). Instead of answering an important constitutional question, the federal courts---including SCOTUS---can only say the question is unsettled. Is it enough that the federal courts answer constitutional questions in federal criminal cases?

"A Defender Praises Alito" is the title of a TalkLeft post quoting Peter Goldberger, a criminal appellate attorney who practices mostly in the Third Circuit. Peter is well-respected, not just for his legal acumen, but also for his sound judgment, i.e. his assessment of Alito can be trusted as accurate. Read the full post at TalkLeft, but the gist of it is that Alito is very conservative, "intellectually honest in the highest degree,"  and willing to reverse convictions, even in capital cases ("He has written 8 opinions I can find in capital cases; in 6 he voted to uphold the death sentence").