CJE Wire: Case Law Updates

Citizens for Judicial Excellence publishes CJE Wire: Case Law Updates each month to help keep its members informed about recent court decisions that may impact their law practices. CJE Wire is prepared by CJE member Dena Alo-Colbeck. The Law Offices of Dena Alo-Colbeck focuses on research, brief writing, and trial preparation for criminal defense litigators. To learn more how she may be of assistance in trial preparation, pre-trial motions, or application of any of the following new case law, please contact her at (253) 318-1758 or alocolbecklaw@gmail.com.

CJE Wire: Case Law Updates — 2018 August 10

 


 Washington State Courts


Division I Court of Appeals

Woodward v. State:  The Court held that Mr. Woodward’s sealed juvenile class A felony adjudication, like all sealed juvenile adjudications, was to be treated as though it had never happened, and therefore it did not bar him from restoring his firearm rights.  The Court reversed the superior court order denying restoration.  The Court found that simply because statutory revisions allowed access to sealed records by prosecutors and criminal justice agencies did not change the treatment of those adjudications.  The Court was likewise not persuaded by arguments that its ruling violated the general-specific rule of statutory construction or conflicts with legislative history. The Court also found that a conflicting attorney general opinion was not controlling.  http://www.courts.wa.gov/opinions/pdf/769324.PDF

 


Division II Court of Appeals

State v. Glover:  The Court found that the lower court’s inquiry into Ms. Glover’s ability to pay LFOs imposed after her second-degree burglary conviction was inadequate.  The trial court’s inquiry consisted solely of asking Ms. Glover if there was any reason she could not hold a job and inquiring as to her employment history.  The Court found that the trial court should have at a minimum inquired into Ms. Glover’s assets and debts and taken into account her lengthy criminal history in assessing her future employability.  http://www.courts.wa.gov/opinions/pdf/D2%2049944-4-II%20Published%20Opinion.pdf


State v. Wallmuller:  In this partially published opinion, the Court held that the community custody condition imposed on Frank Wallmuller on resentencing that prohibited him from frequenting “places where children congregate such as parks, video arcades, campgrounds, and shopping malls,” is unconstitutionally vague.  The Court observed that a community custody condition is unconstitutionally vague if either “(1) it does not sufficiently define the proscribed conduct, so an ordinary person can understand the prohibition or (2) it does not provide sufficiently ascertainable standards to protect against arbitrary enforcement.”  The Court in this case found that the definition of congregate was so open to interpretation as to fail to sufficiently define the proscribed conduct.  The Court found that the definition gave rise to several questions:

(1) Must the children join together in a formal group to “congregate,” or is it sufficient that children be at the same place even if they are unconnected?  (2) Similarly, must the children intend to join together with other children to “congregate,” or can they end up at the same place by happenstance?  (3) How many children are required to congregate to invoke the condition?  Is two enough, or is some unstated larger number required?  (4) How often must children congregate in a place to invoke the condition?  Is once enough, or is some unstated frequency required?  (5)  Assuming that children must have actually rather than potentially congregated at a place to invoke the condition, how recently must they have congregated there? Is one prior instance of children congregating in a place sufficient regardless of when it occurred? 

The Court found that the short list of specific locations, without the clause prohibiting Mr. Wallmuller’s presence in undefined areas where children are known to congregate did not cure the unacceptable vagueness of the remainder of the condition.  The case was remanded for yet another sentencing hearing.  http://www.courts.wa.gov/opinions/pdf/D2%2050250-0-II%20Published%20Opinion.pdf


In re Pers. Restraint of Troup:  Mr. Troup challenged the constitutionality of RCW 4.24.430, which directs the court to deny an inmate’s request to waive filing fees in any civil action or appeal against the State where the inmate has brought at least three prior actions that were dismissed because they were “frivolous or malicious” and where the action would not affect the duration of confinement.  The court found that, in context, the phrase, “frivolous or malicious” was not unconstitutionally vague, as the phrase was contained within a sentence that prohibited the court from waiving fees for an inmate that had had three previous actions dismissed on the grounds that they were frivolous or malicious.  The Court held that a person of average intelligence would be able to understand the reasons for prior dismissal.  The Court found that the statute met the enforcement requirement and the definiteness requirement.  However, the court found that procedural due process required identification of the prior actions relied upon when the clerk determined that the statute applied and remanded with instructions to the clerk to reissue his ruling and to specifically identify the strikes upon which he relies to require Mr. Troupe to pay a filing fee. http://www.courts.wa.gov/opinions/pdf/D2%2050657-2-II%20Published%20Opinion.pdf

 


 Federal Law


Ninth Circuit Court of Appeals

United States v. Nature:  The panel affirmed the defendant’s conviction for being dangerously under the influence of alcohol in violation of 36 C.F.R. § 34.5(b)(21) while he was in the El Portal Administrative Site, which is adjacent to Yosemite National Park.  The panel held that whether or not the Administrative Site is a “park area” within the meaning of the dangerous drinking-prohibition contained in 36 C.F.R. § 2.35, section 34.5 incorporates the dangerous-drinking-prohibition with the necessary changes to make the prohibition applicable to the Administrative Site.  http://cdn.ca9.uscourts.gov/datastore/opinions/2018/08/06/17-10161.pdf


United States v. Fomichev:  The panel vacated the district court’s order denying a defendant’s motion to suppress recordings of his conversations with his wife and his wife’s testimony describing those conversations, in a case in which the defendant was convicted of four counts of making false statements on immigration documents in violation of 18 U.S.C. §§ 1546(a) and 1001.  The panel held that the district court erred by extending the sham marriage exception, which has been applied to the spousal testimonial privilege, to the marital communications privilege.  http://cdn.ca9.uscourts.gov/datastore/opinions/2018/08/08/16-50227.pdf

 

 

 

 

 

 

CJE Wire: Case Law Updates — 2018 August 3

 


 Washington State Courts


Washington State Supreme Court

State v. Black/In Re Detention of Black:  In a decision authored by Justice Yu and joined by Chief Justice Fairhurst and Justices Owens, Gonzalez, and Johnson, the Court found that the trial court did not err as a matter of law in admitting expert testimony on paraphilia NOS, a sexual deviancy diagnosis, nor did it abuse its discretion when it allowed an expert to describe Mr. Black’s specific paraphilic focus as “persistent sexual interest in pubescent aged females.”  Nor did the trial court err in excluding Mr. Black’s expert’s testimony on the controversy surrounding a similar diagnosis, as that diagnosis was not generally accepted in the scientific community.  The court observed that the State’s expert had diagnosed Mr. Black after reviewing approximately 4,000 pages of records, administering a psychological test, and interviewing Mr. Black in 2008 and 2011.  The Court noted that paraphilia is generally accepted in the scientific community and, contrary to Mr. Black’s arguments, does not focus on whether an individual’s sexual focus is abnormal, but on the consequences of the illness in his specific circumstances.  Here, Mr. Black demonstrated an “inability to control his behavior to such an extent that he has committed repeated sexual offenses against multiple children who were legally incapable of giving consent. As Dr. Arnold concluded in his evaluation, “despite prior sanctions for virtually identical grooming and sexually exploitive behavior, [Black] was unable to resist the opportunity to reoffend.” Because the diagnosis was appropriate and accepted within the scientific community, the Court found that the trial court did not err as a matter of law in accepting it into evidence. 

Dissenting, Justice Madsen, joined by Justices Wiggins, Gordon McCloud, and Stephens, argued that, despite the paraphilia NOS label, “the specifically identified condition substantially mirrors a diagnosis identified under another name—^hebephilia—that is controversial within the same scientific community.”  The dissent opined that by admitting the State’s expert’s testimony regarding paraphilia NOS but excluding Mr. Black’s expert’s testimony regarding Hebephilia and the controversy surrounding the diagnosis, the trial court improperly excluded rebuttal evidence crucial to Mr. Black’s case.  http://www.courts.wa.gov/opinions/pdf/944946.pdf


State v. Tyler:  In an opinion authored by Justice Stephens and joined by Justices Wiggins, Gonzalez, Johnson, Madsen, Owens, and Yu, the Court affirmed Mr. Tyler’s conviction for possession of a stolen vehicle.  The Court disagreed with Mr. Tyler’s position that the State was required to prove that he engaged in all the actions that constitute “possession” of a stolen vehicle because these were listed in the to-convict jury instruction. The Court further found there was sufficient evidence to establish he disposed of a stolen vehicle.  The Court held that its decision in Hickman was still good law despite the recent decision inState v. Johnson, but that Hickman’s law of the case doctrine is inapplicable in this case because possession of a stolen motor vehicle is a single means crime, and the given instructions did not alter that fact. Thus, the State had to prove only that Mr. Tyler possessed a stolen vehicle, not that he disposed of it, and the Court found it was “undisputed” that the evidence established possession.

Concurring, Justice Gordon McCloud, joined by Chief Justice Fairhurst, agreed that the statute criminalizing possession of a stolen vehicle is a single means crime.  The concurrence further agreed that the five different definitions of “possess” does not change this face.  However, the concurrence disagreed with the majority’s conclusion that the jury instructions made this fact clear to the jury, as the five different methods of accomplishing possession were listed without the disjunctive made the instructions ambiguous.  Thus, the concurrence argued, there should have been an analysis of whether the evidence proved that Mr. Tyler met all of the different definitions of possess which the concurrence argued that he did.  http://www.courts.wa.gov/opinions/pdf/937702.pdf


In Re Pers. Rest. Of Meredith:  In an opinion authored by Justice Owens and joined by the Chief Justice and Justices Wiggins, Johnson, Gonzalez, Madsen, Gordon McCloud, and Stephens, the Court held that Mr. Meredith’s appellate counsel was not ineffective for failing to raise an objection to the fact that the trial court erroneously gave the State and defense counsel one less preemptory challenge than they were entitled to under the Court Rules, as the claimed error was not objected to at trial and is not the type of structural error that requires automatic reversal. The Court distinguished Mr. Meredith’s case from those in which trial courts had given, and then rescinded, preemptory challenges, causing an objectionable juror to be seated on the venire.  The Court also declined to address the issue of the limiting instruction given to the jury that failed to advise them that Mr. Meredith’s prior convictions could only be used as evidence of one element on Count II of the information, not as evidence relating to the whole of that charge.  The Court found that the issue was insufficiently briefed and not a part of the appellate grant of review in the first place.

Concurring, Justice Yu wrote separately to emphasize that “jury selection is a critical part of trial and ought not to be treated as merely a prelude to the main event.”  Justice Yu agreed with the result in this case but argued that trial courts should make every effort to ensure litigants have a “meaningful opportunity to select an unbiased jury.”  http://www.courts.wa.gov/opinions/pdf/945829.pdf


In Re Pers. Rest. Of Light-Roth:  In an opinion authored by Justice Madsen and joined by Chief Justice Fairhurst, Justices Wiggins, Johnson, Owens, Stephens, and Yu, and Justice Pro Tem Van Deren, the Court found that the State Supreme Court’s decision in State v. O’Dell, 183 Wn.2d 680, 358 P.3d 359 (2015), did not constitute a significant change in the law and could not be retroactively applied to relieve Mr. Light-Roth of any portion of his 335-month sentence, imposed when he was 21 years old.  The Court reasoned that the O’Dell decision found that while “age is not a per se mitigating factor automatically entitling every youthful defendant to an exceptional sentence, a trial court is permitted to consider youth as a mitigating factor.” In this way, the Court held, O’Dell broadened the Court’s understanding of youth as it relates to culpability but did not open up avenues of argument that had been previously foreclosed.  In fact, the Court noted, defense counsel had asked for consideration in sentencing due to Mr. Light-Roth’s age.

Concurring in the result, Justice Gonzalez agreed that Mr. Light-Roth was not entitled to relief, as the O’Dell decision was not material to his case, but argued that O’Dellshould have been found to be significant because it altered the Court’s understanding of prior decisions, and retroactive because it reinterpreted a provision in the SRA.  http://www.courts.wa.gov/opinions/pdf/949506.pdf


In Re Pers. Rest. Of Schorr:  In a unanimous decision authored by Justice Gordon McCloud, the Court found that Mr. Schorr’s guilty plea to first degree murder, first degree robbery, second degree arson, and first-degree theft in 2006 could be heard after the one-year time bar for personal restraint petitions (PRP) because Mr. Schorr’s petition was based solely on double jeopardy grounds.  The Court affirmed that double jeopardy challenges are exempt from the one-year time bar.  The Court further cited prior jurisprudence that held that challenges to sentences that exceed the court’s authority, such as a double jeopardy challenge, cannot be waived by a guilty plea such as the one entered in this case.  The Court found, however, that Mr. Schorr’s convictions did not violate double jeopardy protections.  http://www.courts.wa.gov/opinions/pdf/945918.pdf

 

 


Division II Court of Appeals

State v. Moen:  The Court affirmed Mr. Moen’s conviction for aggravated first degree murder and his sentence to mandatory life imprisonment without the possibility of parole.  The court found that the trial court did not err in refusing to excuse a juror on day 2 of the trial when she disclosed that she had met his family once in the past for about half an hour in her capacity as the director for a long-term care facility, when Mr. Moen’s family was looking into long term care after his self-inflicted head injury.   The Court also found that sentencing a defendant with dementia to mandatory life imprisonment without the possibility of parole under RCW 10.95.030(1) is not categorically barred by article I, section 14’s prohibition against cruel punishment.  http://www.courts.wa.gov/opinions/pdf/D2%2049474-4-II%20Published%20Opinion.pdf

 

 


Division III Court of Appeals

State v. Clements:  In this partially published opinion, the Court affirmed Ms. Clements’ convictions and exceptional sentence for first degree theft and first-degree identity theft. The Court found that the fact that the jury was momentarily discharged before being recalled to complete a corrected verdict form did not abrogate the conviction.  The jury had been given an erroneous verdict form referring to theft instead of identity theft and were returned to the jury room with blank verdict forms and no instructions as to what the error had been.  After brief deliberations, verdicts of guilty were again returned.  The Court found that the constitutional right to a verdict authorized by the jury is not implicated when jurors are re-empaneled, particularly after no more than two minutes had passed, as here.  Further, discharging a jury does not foreclose recall and did not impact Ms. Clements’ right to an impartial jury when there was no time for the jury to be involved in any activity that may have influenced their revised verdict.http://www.courts.wa.gov/opinions/pdf/351122_pub.pdf

 

 


 Federal Law


Ninth Circuit Court of Appeals

United States v. Mickey:  The panel affirmed convictions for two counts of sex trafficking by force, threats of force, fraud, or coercion in violation of 18 U.S.C. §§ 1591(a) and (b)(1). The panel held that the district court did not err by refusing to give a specific unanimity instruction regarding which precise combination of means the defendant used to cause the victim to engage in a commercial sex act.  The panel rejected the defendant’s contention that force, threats of force, fraud, and coercion are separate elements of the crime. The panel held that although the prosecution technically erred in failing to include the statutory phrase “or any combination of such means” in the indictment, inclusion of that phrase in the jury instructions and Special Verdict Form did not constitute a constructive amendment of the indictment. The panel wrote that the defendant cannot show prejudice and concluded that there was no plain error. http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/30/16-50343.pdf


United States v. Ochoa-Orogel:  Reversing a conviction for unlawful re-entry into the United States in violation of 8 U.S.C. § 1326, the panel held that the defendant’s 2008 and 2011 removals were fundamentally unfair, and neither can serve as a predicate removal for purposes of § 1326.  

 The panel held that because the 2008 removal proceeding was in absentia, the defendant satisfied the exhaustion and deprivation-of-judicial-review requirements for bringing a collateral attack on the validity of that removal, which was based on a prior conviction for California domestic violence battery. The panel also held that because circuit precedent at the time of the 2008 removal hearing established that California battery was not a categorical crime of violence, it was error to remove the defendant for a crime of domestic violence under Section 237(a)(2)(E)(i) of the Immigration and Nationality Act based on his California battery conviction. The panel held that the due process defects in the 2008 removal proceeding infected the defendant’s 2011 expedited removal for presenting invalid entry documents. The panel wrote that a person should not be stripped of the important legal entitlements that come with lawful permanent resident status – including protection against expedited removal – through a legally erroneous decision that he or she had no meaningful opportunity to contest.  The panel rejected the government’s contention that the defendant was not prejudiced.  The panel explained that if the defendant was still a lawful permanent resident, his entry documents were not invalid, and even if the government might have been able to remove him on other grounds through a formal removal proceeding, his removal on illegitimate grounds is enough to show prejudice. http://cdn.ca9.uscourts.gov/datastore/opinions/2018/08/02/16-50413.pdf

 

 

 

 

 

CJE Wire: Case Law Updates — 2018 July 23

 


 Washington State Courts


Washington State Supreme Court

State v. Blair:  In an opinion authored by Justice Johnson and joined by Chief Justice Fairhurst and Justices Wiggins, Gonzalez, Owens, and Yu, the Court found that any challenge of the validity of a prior conviction for purposes of offender score calculation must be based on a constitutional defect on its face.  The Court found established precedent, including State v. Ammons, required this result, and that Mr. Blair’s argument, that his prior convictions for theft of snowmobiles under the theft of a motor vehicle statute, does not raise a constitutional issue. 

Concurring, Justice Gordon McCloud, joined by Justices Stephens and Madsen, argued that the majority’s conclusion lacked support in Ammonsand created a “ridiculous anomaly” wherein a defendant can raise facial challenges to prior convictions on statutory and jurisdictional grounds in a personal restraint petition, but not at the prejudgment sentencing.  The concurrence also argued that the majority’s bar on trial courts engaging in statutory interpretation when presented with facially clear challenges at sentencing “misreads Ammonsand betrays a lack of trust in the ability of trial court judges to conduct statutory analysis.”  However, the concurrence concluded that Mr. Blair did not provide sufficient documents here to support his claim and concurred in the result. http://www.courts.wa.gov/opinions/pdf/939951.pdf


Personal Restraint of Schley:  In an opinion raised by Justice Owens and joined by Justices Wiggins, Gordon McCloud, and Yu, the Court found that a fact that necessarily results in a DOSA revocation must be provide by the higher proof standard required at revocation hearings, preponderance of the evidence.  The Court granted relief to Mr. Schley, as the Department in his hearing was required to prove a fighting infraction that resulted in his DOSA revocation by only the “some evidence” standard.  Specifically, Mr. Schley was not allowed to contest the fighting infraction that resulted in administrative suspension and ultimately the DOSA revocation, a circumstance that the Court found violated due process.  Finally, the Court held that if the underlying infraction was not proven by a preponderance of the evidence, treatment must be reinstated.

Justice Gonzalez concurred in the preponderance of the evidence standard imposed for an infraction leading to a DOSA revocation. However, Justice Gonzalez wrote separately to express concern regarding the “very low standard of proof used in prison disciplinary cases and its effect on liberty interests.” Specifically, such cases rely on the “some evidence” standard, which the justice argued is insufficient in the context of serious prison infractions.  Justice Gonzalez argued that the preponderance standard applied to DOSA revocations should be extended to all prison infractions. 

Chief Justice Fairhurst, joined by Justices Johnson, Madsen, and Stephens, dissented, arguing that Mr. Schley was provided due process at every level of the proceeding in this case.  The dissent argued that the infraction was proven by some evidence at a hearing for which Mr. Schley was provided notice and an opportunity to be heard, and that the following DOSA revocation provided similar protections.  The dissent argued that the opinion conflicted with settled precedent and would allow an inmate to retain DOSA status after being terminated from treatment. http://www.courts.wa.gov/opinions/pdf/942803.pdf


State v. Dennis:  In an en banc decision authored by Justice Johnson, and joined by Justices Wiggins, Madsen, Gordon McCloud, Owens, and Stephens, the Court found that the portion of RCW 9.41.040 that allows an offender to petition for restoration of firearm rights after five or more consecutive years in the community without being convicted or charged with a crime is satisfied by any five year conviction free period, and that the period need not immediately precede the petition for restoration.  The Court found that the language of the original bill supported this interpretation, holding that the original bill focused on the fact that petitioners’ prior crimes must have washed out for sentencing purposes when they applied for restoration.  The Court reconciled the language prohibiting petitions for restoration while crimes were pending to mean not that the clock would start over for any conviction, but that even a misdemeanor could be escalated to a felony, which conviction would require a re-starting of the clock for restoration purposes. 

Dissenting, Justice Gonzalez, joined by the Chief Justice and Justice Yu, argued that the majority reading of the statute was not what the people intended in passing the bill.  Rather, the dissent argued, a plain reading of the statute mandated that a petitioner must be crime-free for five years immediately preceding the petition for restoration.  http://www.courts.wa.gov/opinions/pdf/950831.pdf

 


Division II Court of Appeals

In Re Restraint of Bufalini: The Court found that the Department of Corrections (DOC) violated Mr. Bufalini’s due process rights by failing to inform him that he could have his request for counsel considered on a case-by-case basis at his urinalysis (UA) violation hearing.  The Court further held that RCW 9.94A.662(3), the statute allowing DOC to revoke a DOSA, did not violate the separation of powers.  The Court thus granted Mr. Bufalini’s petition and vacated the DOC decisions on his alleged UA violation and revocation of his DOSA.  Mr. Bufalini was ordered released from confinement and transferred to community custody status pursuant to his DOSA, and all time spent in total confinement beyond the 36.75 month initial term of confinement under his DOSA was to be credited against the community custody term.  The Court allowed DOC to begin again in its process in response to the allegation of a UA violation, but must follow the Court’s opinion and governing law in so doing.  The Court did not reach other challenges raised, including Mr. Bufalini’s claims that DOC improperly applied RCW 9.94A.662(3), that his UA was so unreliable that reliance on its results violates due process, and that DOC’s failure to preserve his UA test sample violates due process.  http://www.courts.wa.gov/opinions/pdf/D2%2050785-4-II%20Order%20Publishing.pdf


State v. Classen:  The Court found that kidnapping is a course of conduct crime, but that Mr. Classen’s convictions for kidnapping and attempted kidnapping did not constitute a continuing course of conduct as they were based on two separate acts interrupted by the victim exiting her car and attempting to run away.  The court also found that Mr. Classen’s counsel did not provide ineffective assistance by failing to raise a voluntary intoxication defense, as no facts alleged at trial supported the claim that Mr. Classen was unable to formulate the required mens rea for the crimes due to intoxication. However, the Court found that counsel did provide ineffective assistance by failing to request an inferior degree instructions on the assault charge, as the evidence could have supported the lesser offense.  The Court reversed the assault conviction and remanded but affirmed the kidnapping and harassment convictions.  http://www.courts.wa.gov/opinions/pdf/D2%2049762-0-II%20Published%20Opinion.pdf


State v. Imokawa:  The Court reversed Mr. Imokawa’s convictions for vehicular homicide and vehicular assault, finding that superseding causation negates an element of both crimes, and due process requires the State to prove the absence of a superseding cause when the issue is properly raised by the defense, and the trial court erred in failing to so instruct the jury.  The Court found that dismissal with prejudice was not the only proper remedy, however, as there was sufficient evidence to support the jury’s guilty verdicts on both charges.  The case was remanded for further proceedings.http://www.courts.wa.gov/opinions/pdf/D2%2049995-9-II%20Published%20Opinion.pdf


State v. Harris (Pers. Rest. Of Harris):  In this partially published opinion, Mr. Harris sought to vacate his guilty plea and In Re Barrpleas to second degree murder and second and third degree assault, claiming that the plea were not voluntary and intelligent, that the superior court’s calculation of his offender score violated doubt jeopardy, and that newly discovered evidence undermines the factual basis for his plea.  In the published portion of this opinion, the Court held that Mr. Harris’ plea was voluntary and intelligent when the record supported an assertion that he was aware of the original charge for purposes of the Barr plea, the record shows the relationship between Mr. Harris’ actions and the original plea, the record demonstrates he was aware of the evidence available to the State on the original offense, and the record shows he was aware of the nature and consequences of his plea bargain. The Court declined to review the sentence, finding Mr. Harris’ waiver of his right to appeal the sentence valid.  http://www.courts.wa.gov/opinions/pdf/D2%2049641-1-II%20Published%20Opinion.pdf

 


 Federal Law


Ninth Circuit Court of Appeals

United States v. Mickey: The panel affirmed convictions for two counts of sex trafficking by force, threats of force, fraud, or coercion in violation of 18 U.S.C. §§ 1591(a) and (b)(1). The panel held that the district court did not err by refusing to give a specific unanimity instruction regarding which precise combination of means the defendant used to cause the victim to engage in a commercial sex act.  The panel rejected the defendant’s contention that force, threats of force, fraud, and coercion are separate elements of the crime. The panel held that although the prosecution technically erred in failing to include the statutory phrase “or any combination of such means” in the indictment, inclusion of that phrase in the jury instructions and Special Verdict Form did not constitute a constructive amendment of the indictment.  The panel wrote that the defendant cannot show prejudice and concluded that there was no plain error.  http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/30/16-50343.pdf


United States v. Turner:  The panel affirmed convictions for two separate fraud schemes pursuant to trials in 2009 and 2012.  The panel held that the defendant’s Sixth Amendment right to counsel was not violated in the 2009 case when the district court partially rejected the eighth request for a continuance, after continuing the trial for over two and half years. Because the district court reasonably concluded that the defendant had repeatedly alternated between invoking his right to self-representation and his right to counsel in order to manipulate proceedings and cause delay, the panel rejected the defendant’s claim that the district court violated his Sixth Amendment right to counsel in the 2012 case by requiring him to represent himself. The panel held that the district court did not abuse its discretion in determining that the defendant was not entitled in either trial to CJA funds to hire a psychiatrist to conduct a mental evaluation, and that the district court did not err in failing to hold a sua sponte competency hearing in the 2012 trial.  Because a reasonable court would not doubt the defendant’s competency, the panel held that the district court did not err in denying the defendant’s motion for mistrial and in its decision not to terminate the defendant’s self-representation.  http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/27/14-50238.pdf


United States v. Holden:  The panel affirmed the defendant’s convictions for mail and wire fraud, conspiracy to commit mail and wire fraud, and money laundering offenses; vacated his custodial sentence and restitution order; and remanded for further proceedings. Assuming without deciding that the defendant’s argument to the contrary is not foreclosed by precedent, the panel held that this court’s caselaw that “participating” in a scheme to defraud is forbidden by the mail and wire fraud statutes does not amount to the creation of a common-law crime in violation of separation-of-powers principles, and that the district court therefore did not err by instructing the jury that it could find the defendant guilty for “participating in” a scheme to defraud. The panel vacated the custodial sentence because the record does not support the district court’s conclusion that the defendant exercised sufficient control or organizational authority over his co-conspirator to qualify for a two-level “organizer” enhancement under U.S.S.G. § 3B1.1(c), and the panel could not say whether the district court would impose the same sentence if it kept the correct Sentencing Guidelines range in mind throughout the process.

The panel observed that the district court’s written restitution order – which both required immediate restitution in full and set a mandatory, unconditional schedule of payments during the period of incarceration – is internally inconsistent, and inconsistent with the district court’s oral announcement that the defendant lacked the ability to make immediate restitution in full.  The panel therefore vacated the restitution order and remanded so that the district court can strike the lump-sum payment requirement from the judgment. http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/26/16-30186.pdf


Echavarria v. Filson:  The panel affirmed the district court’s grant of habeas corpus relief to Jose Echavarria, who was convicted and sentenced to death for killing FBI Special Agent John Bailey. Mr. Echavarria claimed that there was a constitutionally intolerable risk of bias, based on the fact that several years earlier Agent Bailey had investigated for possible criminal prosecution Nevada District Judge Jack Lehman, who presided over Mr. Echavarria’s trial.  The panel reviewed the Nevada Supreme Court’s decision de novo, rather than with AEDPA deference, because the Nevada Supreme Court adjudicated only Mr. Echavarria’s claim of actual bias, not his distinct claim of risk of bias.  The panel held that Mr. Echavarria’s right to due process was violated because for an average judge in Judge Lehman’s position there would have been a constitutionally intolerable risk of bias. http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/25/15-99001.pdf


State v. Sleugh:  The panel affirmed the district court’s affirmance of a magistrate judge’s order denying Damion Sleugh’s motion to unseal codefendant Shawndale Boyd’s applications to issue subpoenas pursuant to Fed. R. Crim. P. 17(c).  The panel held that there is no presumption of public access under the First Amendment or common law that attaches to Rule 17(c) subpoena applications and their supporting materials; and that parties can only justify accessing sealed or in camera Rule 17(c) subpoenas, subpoena applications, and supporting documents by demonstrating a “special need.”  The panel held that Mr. Sleugh failed to demonstrate a “special need” for Boyd’s Rule 17(c) subpoena materials, and that there is a continuing need to seal them. http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/23/17-10424.pdf

 

 

 

 

CJE Wire: Case Law Updates — 2018 July 20

 


 Washington State Courts


Division II Court of Appeals

In Re Knight:  The Court allowed Mr. Knight to withdraw his guilty plea to the non-existed crime of attempted manslaughter in the first degree and remanded to vacate the conviction. The Court found that Mr. Knight’s collateral attack was not time barred, because the judgment and sentence was facially invalid.  Because the conviction was for a non-existent crime, the Court found that it constituted constitutional error that per se actually and substantially prejudiced Mr. Knight.  Further, because the crime was a predicate for a three strikes sentence, the Court found Mr. Knight showed actual prejudice as well.  http://www.courts.wa.gov/opinions/pdf/D2%2049521-0-II%20Published%20Opinion.pdf

 


Division III Court of Appeals

State v. Johnson:  The Court remanded Mr. Johnson’s matter for resentencing regarding five community custody conditions challenged by Mr. Johnson.  The Court found that four of the conditions prohibited access to images or media containing some form of sexual content, and the fifth prohibited Mr. Johnson from being present at locations where children congregate.  The Court found that two provisions, restricting access to nude images and images of children wearing only undergarments and/or swimsuits were overbroad and not crime related, as there was no evidence Mr. Johnson was aroused by the types of nonerotic images described in this conditions. The Court applied similar reasoning to the conditions prohibiting the viewing of sexually explicit activity and attendance at X-rated movies, peep shows, or adult book stores, finding again no connection to the crime of conviction.  The court affirmed but amended the condition prohibiting Mr. Johnson from being in places where children congregate, adding that those children must be under 16 years of age.

Dissenting in part, Judge Fearing urged further modification of the condition prohibiting Mr. Johnson from patronizing places where children congregate, urging the court to make this condition more specific by specifying the places to be avoided. http://www.courts.wa.gov/opinions/pdf/349284_pub.pdf


State v. Burnam: The Court found no error in the trial court’s exclusion of evidence showing that the murder victim had dated a man accused of murder and hidden the murder weapon.  The Court agreed that this evidence “had minimal or no relevance to Mr. Burnam’s claim at trial that he feared serious injury or death.”  The Court noted that Mr. Burnam was allowed to present ample evidence that he was afraid of the victim and believed he was acting in self-defense on the night of the murder but found the specific evidence of the unrelated case irrelevant, and held there was no error in its exclusion.  http://www.courts.wa.gov/opinions/pdf/349462_ord.pdf


State v. Taylor:  The Court found that the rule enunciated in Old Chief, allowing a defendant to stipulate to prior convictions if the conviction is an element of the crime, extends to a defendant’s offer to stipulate to a postconviction no contact order.  The Court found that the order had no further probative value once the defendant stipulated to its existence and his knowledge of the order.  However, the Court found the risk of undue prejudice was substantial, particularly considering the order itself notified the reader that it was a post-conviction order.  The Court also found that Mr. Taylor’s guilty plea to a related charge was not knowingly and voluntarily entered because Mr. Taylor appeared to both admit and deny the prohibited conduct.  http://www.courts.wa.gov/opinions/pdf/351726_pub.pdf


State v. Karas:  The Court accepted the defendant’s motion for reconsideration and withdrew its original opinion, noting that an amended opinion will be filed in due course. http://www.courts.wa.gov/opinions/pdf/348997_ord.pdf

 

 


 Federal Law


United States Supreme Court

Carpenter v. United States:In a decision authored by the Chief Justice, and joined by Justices Breyer, Ginsburg, Sotomayor, and Kagan, the Court held that the government’s acquisition of the defendant’s cell site records, allowing the government to place Mr. Carpenter near the scene of four robberies on the dates they occurred, was a search under the terms of the Fourth Amendment, and a warrant was required.  In so holding, the Court recognized the privacy interest inherent in a person’s location and physical movements, and likened the records obtained by the government to the use of a GPS tracker, which also requires a warrant.  The government refused to extend the doctrine of third-party sharing, noting that the information contained in cell site records was far more revealing than the types of information subject to third-party sharing, and that the cell records were generated by the mere act of possessing the phone, and were thus not affirmatively shared. https://www.supremecourt.gov/opinions/17pdf/16-402_new_o75q.pdf

Dissenting, Justice Kennedy, joined by Justices Thomas and Alito argued that cell site records are no different than any other business record, and that third parties have no expectation of privacy in such records.

Dissenting, Justice Alito, joined by Justice Thomas argued that the request in this case, asking a company to look through its records and turn over specific documents, did not rise to the level of an actual search and is contrary to Fourth Amendment jurisprudence.  The dissent further argued that the Court today allows a defendant to object to a search of a third party’s property.

Dissenting, Justice Thomas argued that this case should not turn on whether a search occurred, but on whose property was searched, and posited that the government did not search the defendant’s records in this case, but those belonging to the cell phone companies.  Justice Thomas also found fault with the Katz reasonable expectation of privacy test, which he claimed had no basis in the Fourth Amendment.

Dissenting, Justice Gorsuch advocated for a return to the pre-Katz method of evaluating the need for a warrant, by merely determining the right to privacy through the lens of common law property rights.

 


Ninth Circuit Court of Appeals

Tamplin v. Muniz:The panel reversed the district court’s judgment denying California state prisoner Dwight Tamplin, Jr.’s petition for a writ of habeas corpus, and remanded with instructions to grant the writ.  Mr. Tamplin argued that his 25years-to-life Three Strikes sentence was obtained in violation of his Sixth Amendment right under Faretta v. California, 422 U.S. 806 (1975).  The panel reviewed the state habeas court’s decision that Mr. Tamplin’s Farettaclaim was meritless through the lens of the Antiterrorism and Effective Death Penalty Act (AEDPA).  The panel specifically found that the state court’s two conclusions—that Mr. Tamplin’s request to represent himself was equivocal, and that Mr. Tamplin waived his Sixth Amendment right by not continuing to object after a public defender was reappointed to represent him—were clearly contrary to established Supreme Court law.  Reviewing de novo, the panel held that Mr. Tamplin’s request to represent himself was timely; that Mr. Tamplin’s appellate counsel rendered constitutionally deficient performance by failing to raise Mr.  Tamplin’s compelling Farettaclaim; and that Mr. Tamplin was prejudiced by counsel’s deficient performance.

Dissenting, Judge Hawkins wrote that Mr. Tamplin has not established that the state court’s decision was in direct and irreconcilable conflict with Supreme Court precedent and has not shown that the state court ruling applying Faretta was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fair minded disagreement.  http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/06/16-15832.pdf


United States v. Obendorf: Affirming a conviction for illegally baiting ducks in violation of the Migratory Bird Treaty Act, and conspiring to do the same, the panel held that an “agricultural practice exception” set forth in 50 C.F.R. § 20.21(i)(1) applies to unlawful taking, but not unlawful baiting, and thus could not have immunized the defendant’s conduct. The panel concluded that although the parties misapprehended the law in the district court by treating § 20.21(i)(1) as applicable to the defendant’s case, the error was harmless.  http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/09/16-30188.pdf


United States v. Hernandez: The panel affirmed in part and vacated in part a sentence for sexual exploitation of a child and issued a limited remand for resentencing. The panel affirmed the district court’s determination that the distribution-of-pornography enhancement set forth in U.S.S.G. § 2G2.1(b)(3) applies when the perpetrator creates an illicit image of a minor victim and shares it only with the victim. The panel issued a limited remand for resentencing because the record suggests that the district court penalized the defendant by increasing his sentence based on his decision to exercise his Sixth Amendment right to go to trial. Judge Rawlinson dissented from the portion of the majority opinion concluding that the district judge impermissibly “punished” the defendant by tethering his sentence to the exercise of his constitutional right to have his guilt determined by a jury.  http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/10/13-10428.pdf


United States v. Joyce: Affirming a conviction for conspiring to suppress and restrain competition by rigging bids, in violation of 15 U.S.C. § 1, the panel held that bid rigging is per se illegal under Section 1 of the Sherman Act, and that the district court therefore did not err by refusing to permit the defendant to introduce evidence of the alleged ameliorative effects of his conduct.  http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/11/17-10269.pdf


White v. Ryan:The panel reversed the district court’s judgment denying Arizona state prisoner Michael Ray White’s petition for a writ of habeas corpus based on ineffective assistance of counsel at resentencing and remanded with instructions to grant a conditional writ.  Regarding counsel’s performance, the panel held (1) that counsel performed deficiently by failing to challenge evidence that Mr. White committed the murder for pecuniary gain, and by failing to conduct an adequate investigation of mitigating factors, including the unreasonable decision not to hire any experts to assist with the penalty phase; and (2) that the state post-conviction court’s contrary conclusion was an unreasonable application of Strickland v. Washington, 466 U.S. 668 (1984), and Wiggins v. United States, 539 U.S. 510 (2003).  The panel evaluated prejudice without AEDPA deference because the state post-conviction court applied a test for prejudice contrary to Strickland.  Reviewing de novo, the panel concluded that there is a reasonable likelihood that White would have received a different sentence if counsel had investigated and presented mitigating evidence.  http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/11/15-99011.pdf


United States v. Pepe:The panel vacated a conviction and sentence under the 2005 version of 18 U.S.C. § 2423(c), which applies to a U.S. citizen “who travels in foreign commerce and engages in any illicit sexual conduct with another person,” and remanded, in a case in which the defendant, a U.S. citizen, drugged and raped several children in Cambodia, where he claims to have resided for several years.  The defendant contended that the statutory language didn’t encompass his conduct because, as a resident of Cambodia, he had ceased “travel[ing] in foreign commerce.” The panel held that in light of a 2013 amendment to the statute adding a new basis for criminal liability, as well as the accompanying legislative history, it is evident that the version of § 2423(c) in effect at the time of the defendant’s illicit sexual conduct was inapplicable to U.S. citizens living abroad unless they were traveling—meaning something more than being in transit—when they had illicit sex.  The panel wrote that this subsequent Congressional pronouncement is clearly irreconcilable with this court’s previous construction of the statute in United States v. Clark, 435 F.3d 1100 (9th Cir. 2006) (concluding that § 2423(c) “does not require that the conduct occur while traveling in foreign commerce”), and that the panel is therefore not bound by the reasoning in Clark.  The panel observed that the government appears to dispute the defendant’s claim that he had resettled in Cambodia.  Because the jury was not properly instructed on the travel element, the panel wrote that if the government elects to retry the defendant, it will need to prove that he was still traveling when he committed illicit sexual conduct.

Dissenting, Chief Judge Thomas wrote that Clark, whose holding of the statutory reach of the prior statute is completely consistent with the 2013 amendment, remains good law and is binding on this panel.  He wrote further that the panel should not be deciding the question, never argued to the district court, of whether the prior statute applied to citizens who temporarily resided abroad and intended to resettle.  http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/11/14-50095.pdf


United States v. Buenrostro:  The panel affirmed the district court’s denial of Jose Luis Buenrostro’s motion for a sentence reduction under 18 U.S.C. § 3582(c)(2), and the district court’s denial of his motion to vacate his sentence under 28 U.S.C. § 2255, following President Obama’s commutation of his sentence from life in prison without release to 360 months in prison. The panel held that Mr. Buenrostro is ineligible for a sentence modification under § 3582(c)(2) because he was originally sentenced based on a statutory mandatory minimum, not based on a sentencing range.  Explaining that a presidential commutation does not overturn the sentence imposed by the sentencing court, the panel wrote that President Obama’s commutation was not based on a recalculation of a sentencing range. The panel held that President Obama’s commutation of Mr. Buenrostro’s sentence did not create a new judgment, and that Mr. Buenrostro therefore remains subject to the restrictions on second-or-successive motions under § 2255. http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/13/16-10499.pdf


United States v. Barnes:  The panel affirmed a conviction for being a felon in possession of a firearm, in a case in which the defendant argued that the district court erred (1) by denying his motion to suppress evidence based on an allegedly invalid arrest warrant and (2) by precluding the defendant from presenting a necessity defense.  The panel held that the district court’s finding that the municipal judge who signed the defendant’s arrest warrant must have reviewed the underlying citation as part of her “ordinary course of business” was clearly erroneous, where there is no record evidence that the municipal court judge either received or read a copy of the citation prior to her finding of probable cause.  The panel therefore concluded that the warrant for the defendant’s arrest for the underlying trip permit violation was inexcusably infirm and that the defendant therefore satisfied his burden of showing judicial abandonment by a preponderance of the evidence.   The panel held that the good faith exception to the exclusionary rule applies unless a defendant can show that the issuing judge abandoned his or her role and that the law enforcement officer knew or should have known of such abandonment.  The panel concluded that although the defendant met his burden of showing judicial abandonment, the evidence cannot be suppressed because the officers executing the infirm warrant were unaware—and had no reason to be aware—of any judicial misconduct.  The panel held that the district court did not err in denying the defendant’s request to present a necessity defense to the jury.  http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/19/16-30203.pdf


Ross v. Williams:  The panel affirmed the district court’s judgment dismissing as untimely California state prisoner Ronald Ross’s amended habeas corpus petition brought pursuant to 28 U.S.C. § 2254.  Mr. Ross argued that the claims in his new petition, prepared with the assistance of counsel, arose out of facts set out in a state court order attached to his pro se original petition, and that the district court therefore erred in failing to apply the relation back doctrine in Fed. R. Civ. P. 15(c). The panel held that because Mr. Ross did not comply with Rule 2(c) of the Rules Governing Section 2254 Cases either directly or by incorporating (or attempting to incorporate) the facts in the Nevada Supreme Court affirmance into his original petition, that petition does not provide an aggregation of facts that can support the claims in his amended petition. The panel concluded that the district court therefore did not err in concluding that Mr. Ross’s amended petition cannot relate back to the claims in his original petition.

Dissenting, District Judge Bates wrote that this court should liberally construe Mr. Ross’s pro se original petition as setting out facts discussed in the attached state court decision and should then remand for the district court to determine in the first instance whether the claims in the amended petition arose out of the conduct, transaction, or occurrence set out in his original petition. http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/19/16-16533.pdf


United States v. Robertson:  The panel affirmed convictions for theft of mail by a postal employee in violation of 18 U.S.C. § 1709, and possession of stolen mail in violation of 18 U.S.C. § 1708.   The panel held that the district court did not err in denying the defendant’s motion to dismiss the indictment on due process grounds based on the government’s failure to preserve a video of a Postal Service employee parking lot.  The panel held that the district court’s finding that the investigating agent did not act in bad faith was not clearly erroneous, and that the exculpatory value of the video was speculative. The panel held that the district court did not abuse its discretion by failing to instruct the jury on lost or destroyed evidence as a sanction for the government’s failure to preserve the parking lot video.

The panel held that the district court did not abuse its discretion in ruling that a conversation between the prosecutor and two investigating agents outside the courtroom did not violate Fed. R. Evid. 615, which provides that, at a party’s request, the court must order witnesses excluded so that they cannot hear other witnesses’ testimony.  Addressing an open question, the panel held that Rule 615 prohibits a sequestered witness from not only attending a hearing or trial but reading transcripts from it.  The panel held that the district court acted within its discretion by determining that the appropriate sanction for the government’s allowing two agent witnesses to review transcripts of prior testimony was to allow the defense to cross-examine the witnesses about their exposure to the transcripts. The panel held that the district court did not abuse its discretion in denying the defendant’s request for production of an agent’s notes under the Jencks Act.  The panel clarified that unless a defendant makes a threshold showing that notes sought pursuant to the Jencks Act may qualify as a “statement” under the Act, the district court is not obligated to review the notes in camera before refusing to compel production.  The panel concluded that the defendant did not make that threshold showing.

 The panel rejected the defendant’s argument that the district court’s disjunctive jury instruction on embezzlement of mail by a postal employee – which allowed the jury to convict her solely on a finding that “she came into possession” of the mail, rather than a showing of both entrustment and possession – was plain error.  The panel explained that the jury instruction tracked the language of section 1709, and that the government may charge in the conjunctive and prove in the disjunctive.  http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/20/16-10385.pdf


United States v. Sleugh:  The panel affirmed the district court’s affirmance of a magistrate judge’s order denying Damion Sleugh’s motion to unseal codefendant Shawndale Boyd’s applications to issue subpoenas pursuant to Fed. R. Crim. P. 17(c).  The panel held that there is no presumption of public access under the First Amendment or common law that attaches to Rule 17(c) subpoena applications and their supporting materials; and that parties can only justify accessing sealed or in camera Rule 17(c) subpoenas, subpoena applications, and supporting documents by demonstrating a “special need.”  The panel held that Sleugh failed to demonstrate a “special need” for Boyd’s Rule 17(c) subpoena materials, and that there is a continuing need to seal them. http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/23/17-10424.pdf

 

 

 

CJE Wire: Case Law Updates — 2017 December 29

 


 Washington State Courts


Division I Court of Appeals

State v. Gonzalez: In this partially published opinion, the Court found that there was no double jeopardy violation despite the fact that the jury was not instructed that separate and distinct acts must support each conviction on the multiple allegations of child rape and child molestation brought in this case. The Court found that it was manifestly apparent to the jury that the State was not seeking to impose multiple punishments for the same offense and that each count was based on a separate act. The Court reasoned that the State distinguished the acts of child molestation and the acts of child rape, described the type of conduct that supported the child molestation count and the child rape counts, and gave examples of each. Further, the State never argued that the same conduct, oral sex, could be both child rape and child molestation. The Court found that supporting testimony and argument on the subject was neither vague nor inconsistent. The Court additionally found that the trial court did not err in giving a supplemental jury instruction after the jury began deliberations, because the instruction did not exceed matters that were argued or could have been argued to the jury. The court found it was also apparent from the record that Mr. Gonzales’ counsel assumed that the missing instruction had in fact been read, so that he could not show his cross examination or closing argument would have changed. Finally, the Court found that evidence that Mr. Gonzales had masturbated while holding his victim’s bra was not improperly before the jury, as it went to the defendant’s lustful disposition toward the victim, and the evidence was not unfairly prejudicial because his act was not more inflammatory than the charged crime, and the victim was only indirectly victimized by it. http://www.courts.wa.gov/opinions/pdf/75127-1.pdf


Personal Restraint of White: The Court found that Mr. White’s two convictions for second degree assault, entered prior to the Supreme Court’s decision in State v. Villanueva-Gonzalez, 180 Wn.2d 975, 329 P.3d 78 (2014), which found assault to be a course of conduct crime, violated double jeopardy. The Court held that the two actions constituted a single course of conduct, as they occurred over a short period of time, in the same locations, were done with the same intent, and were uninterrupted, giving Mr. White no chance to reconsider or change course, meeting all of the factors outlined in Villanueva-Gonzalez for finding acts constituted the same course of conduct. http://www.courts.wa.gov/opinions/pdf/71886-0.pdf


State v. Chase: The Court, in a matter of first impression, found that a shareholder or officer of a closely held corporation has no personal privacy interest in the corporation’s financial information under Article 1, section 7 of the Washington State Constitution. The Court found that State v. Miles, which held that individuals have a privacy interest in their personal bank records held by a third party, did not control in this case, as the records belonged to a corporation, not to Mr. Chase. The court reasoned that a corporation’s bank records have not historically been found to be private documents, and that a corporation’s financial transactions do not reveal sufficiently sensitive information about a person’s personal contacts and associations to require the protections of article 1, section 7. http://www.courts.wa.gov/opinions/pdf/750500.pdf

 


Division II Court of Appeals

State v. Allen: The Court affirmed the trial court’s dismissal of the State’s allegations of aggravating circumstances under chapter 10.95 RCW on double jeopardy grounds. The State had charged Darcus Allen with four counts of premeditated murder with two aggravating circumstances, and filed a notice seeking the death penalty. The jury convicted Mr. Allen, but found unanimously that the State had not proven the aggravating circumstances beyond a reasonable doubt. The state Supreme Court reversed Mr. Allen’s convictions, and the state re-filed, this time not seeking the death penalty but still alleging the same aggravating circumstances previously filed. The trial court dismissed the aggravators on Mr. Allen’s motion, citing double jeopardy. The Court reasoned that the jury’s unanimous finding on the aggravating circumstances was an acquittal and, further, that the aggravating circumstances were the functional equivalent of elements of the charged crime. The Court pointed to Apprendi v. New Jersey, 530 U.S. 466, 489, 133 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), for the proposition that “factors which raise the penalty for a crime, other than a fact of conviction, are the functional equivalent of elements. In other words, they are akin to elements, must be submitted to a jury, and must be proven beyond a reasonable doubt.” http://www.courts.wa.gov/opinions/pdf/D2%2048384-0-II%20Published%20Opinion.pdf

 

 


 Federal Law


Ninth Circuit Court of Appeals

Apelt v. Ryan: The panel vacated the district court’s judgment granting a writ of habeas corpus on Michael Apelt’s claim of ineffective assistance of counsel (IAC) at sentencing, and affirmed the district court’s denial of relief on Mr. Apelt’s other claims, in the state of Arizona’s appeal and Mr. Apelt’s cross appeal arising from his habeas corpus petition challenging his conviction and death sentence for first-degree murder. The panel held that while the state court’s alternate ruling on the merits of the IAC claims does not allow a federal court to ignore the state court’s finding of procedural default, it also does not bar a federal court from considering whether there is cause and prejudice excusing the default under Martinez v. Ryan, 566 U.S. 1 (2012), and Coleman v. Thompson, 501 U.S. 722 (1991). The panel held that counsel’s performance on Mr. Apelt’s first post-conviction petition was sufficiently deficient to provide cause for Mr. Apelt’s default. The panel agreed with the district court that Mr. Apelt was denied effective assistance of counsel at sentencing, but concluded that the state courts’ determination that counsel’s deficient performance at sentencing was not prejudicial was not unreasonable. The panel therefore vacated the district court’s grant of the writ.

Regarding Mr. Apelt’s certified claims, the panel held (1) that Mr. Apelt has not shown that the state court’s denial of funding to investigate mitigation violated his constitutional rights; and (2) that Mr. Apelt has not met his burden of showing that the state court’s denial of his mental-disability claim under Atkins v. Virginia, 536 U.S. 304 (2002), is an unreasonable determination of the facts in light of the evidence presented. The panel certified for appeal Mr. Apelt’s claims (1) that the Arizona Supreme Court applied an unconstitutional causal connection requirement to his mitigation evidence; and (2) that counsel was ineffective at trial and sentencing for failing to challenge Mr. Apelt’s competency. The panel concluded that both claims are not persuasive. http://cdn.ca9.uscourts.gov/datastore/opinions/2017/12/28/15-99013.pdf


United States v. Aldana: Affirming misdemeanor convictions under 8 U.S.C. § 1325(a)(1) for attempting to enter the United States “at any time or place other than as designated by immigration officers,” the panel held that a place “designated by immigration officers” refers to a specific immigration facility, not an entire geographic area. http://cdn.ca9.uscourts.gov/datastore/opinions/2017/12/29/16-50372.pdf


Hernandez v. Chappell: The panel reversed the district court’s denial of a writ of habeas corpus as to Francis Hernandez’s guilt phase claims relating to first degree murder, vacated his convictions on those counts, and remanded. The panel held that had counsel performed effectively and investigated and presented a diminished mental capacity defense based on mental impairment, there is a reasonable probability that at least one juror would have had a reasonable doubt as to whether Mr. Hernandez could have formed the requisite mental state for first degree murder.

Concurring in part and dissenting in part, Judge Nguyen wrote that even if the jury had considered the mental evidence of Hernandez’s mental condition, there is no reasonable possibility of a different outcome, and would deny the habeas petition. http://cdn.ca9.uscourts.gov/datastore/opinions/2017/12/29/11-99013.pdf

 

 

CJE Wire: Case Law Updates — 2017 November 10

 


 Washington State Courts


Division I Court of Appeals

State v. Clark:  The Court published a July 31, 2017 decision upholding Michael Clark’s conviction for unlawful possession of a firearm.  Mr. Clark had argued that the domestic violence protection order to which he was subject at the time of his arrest did not explicitly prohibit physical force, as required pursuant to RCW 9.41.040(2)(a)(ii)(C)(II) to make possession of a firearm illegal.  The Court reasoned that the term “explicitly” was not defined in the statute but, given its ordinary meaning, did not require a protective order to contain the exact words of RCW 9.41.040(2)(a)(ii)(C)(II) to satisfy the requirement of explicitly prohibiting physical force.  Rather, the Court found that an order is sufficient if it “clearly prohibits the person subject to the order from using, attempting to use, or threatening to use physical force against the protected person.”  The order in this case restrained Mr. Clark from “causing physical harm, bodily injury, assault, including sexual assault, and from molesting, harassing, threatening, or stalking” The Court concluded that a rational trier of fact could conclude that the prohibition against causing physical harm or bodily injury or threatening made it clear that Mr. Clark was prohibited from using or threatening to use physical force against the protected party, thus making his possession of the subject firearm illegal. https://www.lexisnexis.com/clients/wareports/; http://www.courts.wa.gov/opinions/pdf/744411.PDF

 


Division II Court of Appeals

State v. Hotchkiss:  The Court affirmed Mr. Hotchkiss’ conviction for possession of a controlled substance with intent to deliver.  In a search of Mr. Hotchkiss’ residence, 8.1 grams of methamphetamine and $2,150.00 in cash was found, and during questioning Mr. Hotchkiss admitted that he was selling methamphetamine to several customers.  On appeal, Mr. Hotchkiss challenged the admission of this confession into evidence, arguing that there was insufficient corroborating evidence independent of his incriminating statement that he intended to deliver methamphetamine.  The Court found that one factor in addition to mere possession of an illegal substance suggestive of intent is sufficient to satisfy corpus delicti for the charge of possession with intent to deliver.  The Court determined that the evidence need not be sufficient to convict in order to allow the statement to come in.

Concurring, Judge Worswick pointed to the third consolidated case in Brockob, the first two of which were relied upon by the majority.  Judge Worswick noted that this case, Cocabe, “clearly stands for the proposition that evidence may be sufficient to convict beyond a reasonable doubt but may still be insufficient for purposes of corpus delicti.”  The concurrence would have found that the State had not met the standard under the corpus delicti rule to enter Mr. Hotchkiss’ statement into evidence, but that there was sufficient evidence for the conviction nonetheless. http://www.courts.wa.gov/opinions/pdf/D2%2048963-5-II%20Published%20Opinion.pdf

 


 Federal Law


United States Supreme Court

Dunn v. Madison:  In a per curiam decision, the Court upheld the execution of Vernon Madison for the shooting death of a police officer some thirty years prior.  The Court found that, despite the fact that a series of strokes had left Mr. Madison incapable of remembering the crime, psychologists for both the State and the defense agreed that Mr. Madison understands that he is in prison for murder and will be put to death due to that conviction.  However, the defense expert argued that Mr. Madison does not understand the act for which he is being punished because he cannot recall “the sequence of events from the offense to his arrest to the trial or any of those details” and believes that he “never went around killing folks.”  The Court found that the State Court’s decision upholding the death penalty in this case was not unreasonable based on the evidence before it, as Mr. Madison understands the crime for which he will be put to death, and there is no case clearly establishing that a prisoner is incompetent to be executed because of a failure to remember his commission of the crime, “as distinct from a failure to rationally comprehend the concepts of crime and punishment as applied in this case.”

Concurring, Justice Ginsburg, joined by Justices Breyer and Sotomayor argued that the issue of whether a State may administer the death penalty to a person whose disability leaves him without memory of his commission of a capital offense “is a substantial question not yet addressed by the Court.” But acknowledged that restraints imposed by AEDPA preclude consideration of the question. 

Also concurring, Justice Breyer wrote separately to emphasize what he termed one of the “basic problems with the administration of the death penalty.”  Justice Breyer pointed to the “unconscionably long periods of time that prisoners often spend on death row awaiting execution,” and surmised that the Court will be increasingly faced with a death row population that is unable to remember or understand the acts for which they are incarcerated and sentenced to death due to diseases of old age.  The justice noted that this significantly undermines the stated purpose of deterrence inherent in the death penalty, and concluded that rather than develop a line of cases focusing on special circumstances of aging prisoners, “I believe it would be wiser to reconsider the root cause of the problem—the constitutionality of the death penalty itself.” https://www.supremecourt.gov/opinions/17pdf/17-193_6j37.pdf


Kernan v. Cuero:  In a per curiam opinion, the Court held that the Ninth Circuit erred in holding that the state court below had made a mistake of federal law when it sentenced Mr. Cuero to a sentence of 25 years to life rather than 14 years agreed to in the plea agreement, after the government was allowed to amend the complaint to accurately reflect Mr. Cuero’s prior convictions.  The Court found that there is no federal law mandating that a defendant is entitled to specific performance of a plea agreement, giving the defendant the sentence he would have had absent the amendment to the complaint.  https://www.supremecourt.gov/opinions/17pdf/16-1468_1a72.pdf

 

CJE Wire: Case Law Updates — 2017 November 3

 


 Washington State Courts


Washington State Supreme Court

State v. Cruz:  In a unanimous opinion authored by Justice Gordon McCloud, the Court dismissed the State’s appeal of the trial court’s order suppressing a search of Eric Cruz’ car incident to his arrest for illegally “snagging” a salmon in the Similkameen River.  The officer searched the truck after Mr. Cruz, in response to questioning, admitted there were guns in the vehicle, but never obtained a search warrant.  Mr. Cruz, who has a prior felony, was subsequently charged with three counts of second degree unlawful possession of a firearm.  The defense moved to suppress evidence gathered in the search under Gant and its progeny, and the trial court granted the motion, noting in its handwritten findings, that “the practical effect of this order is to terminate the case.”  The State then moved to dismiss without prejudice.  The Court instead dismissed with prejudice.  The State appealed the suppression order, but not the order of dismissal.  The Court quoted a prior ruling in State v. Fortun, 94 Wn.2d 754, 755, 626 P.2d 504 (1980) (per curiam) explaining that even if the suppression order was reversed, “fundamental common sense compels us to conclude there remains no existing charge to which a possible reversal of a pretrial order could apply” because “the dismissal order would remain unchanged and the case below would still be at an end.”  The State did file a motion to amend the notice of appeal to add in the dismissal order, which was granted.  However, the Court found that the circumstances remained unchanged, given that the State had still failed to brief and argue the propriety of the order of dismissal, and that the State was the party that affirmatively requested, or invited, the trial court to enter the dismissal order.  The Court concluded that “[c]haracterizing the “notice of appeal [as being] from the order of suppression and dismissal,” as the amended notice of appeal now does, fails to solve these invited error, failure to brief, and failure to assign error problems.  http://www.courts.wa.gov/opinions/pdf/937320.pdf

 


Division I Court of Appeals

State v. LaPointe:  The court reversed the trial court’s denial of Clifford LaPointe’s Knapstad motion and dismissed the charge of felony vehicle prowling based on it being a third or subsequent conviction for what would otherwise be misdemeanor vehicle prowling.  The Court pointed out that the Washington State Legislature’s 2013 amendments to RCW 9A.52.100 that elevated the crime of gross misdemeanor vehicle prowling in the second degree to a class C felony “upon a third or subsequent conviction” take effect if “a person has been previously convicted at least two separate occasions of the crime of vehicle prowling in the second degree.”  However, the Court noted that multiple counts charged in the same information or based on the same incident date do not count as separate offenses.  Here, Mr. LaPointe pled guilty to three separate charges of misdemeanor vehicle prowling resulting from two separate complaints on the same day and in the same proceeding in 2013.  The Court concluded that the language of the statute is ambiguous, and found that the 2013 convictions that occurred on the same day and in the same proceeding, and did not elevate the crime to a felony.  The Court pointed out that it had decided much the same question with regard to the persistent offender accountability act in State v. Bluford, 195 Wn. App. 570, 379 P.3d 163 (2016), reversed on other grounds, 188 Wn.2d 298, 393 P.3d 1219 (2017), finding that a guilty plea entered the same day to two different counts of armed robbery were not convictions on two separate occasions, so as to trigger the application of the act.  Further, the Court found that neither the plain language of the statute nor the legislative history was clear as to the meaning of “two separate occasions,” and so the rule of lenity should be applied and the statute interpreted in favor of the defendant.  http://www.courts.wa.gov/opinions/pdf/752189.pdf


State v. Wilson:  The Court reversed and remanded for a new trial Leslie Wilson’s convictions for rape of a child in the first degree and attempted rape of a child in the first degree. The Court found that there was sufficient evidence to support the convictions, but found that the jury was not properly instructed on the elements of attempt – specifically, there was no instruction that connected the definition of “substantial step” to the offense of attempted rape of a child.  Further, the Court found that admission of a prior remark by Mr. Wilson to the victim’s older cousin was not markedly similar to the alleged abuse that occurred in this case, and was thus not admissible under the common scheme or plan exception to ER 404(b).  http://www.courts.wa.gov/opinions/pdf/749447.PDF

 


Division II Court of Appeals

State v. Yelovich:  In this partially published opinion, the Court upheld Steven Yelovich’s conviction for violation of a felony no-contact order.  The Court affirmed the trial court’s denial of a proposed defense of property instruction that Mr. Yelovich wanted to give in his defense.  According to Mr. Yelovich, his former girlfriend and the subject of the no-contact order had taken his phone and other items out of an open window of his car while he was packing boxes in a garage.  Mr. Yelovich saw her and gave chase, eventually assaulting her in an attempt to recover his phone.  The Court found that a defense of property instruction is appropriate only when a party is about to be injured, or in preventing or attempting to prevent “malicious interference with … personal property lawfully in his or her possession.”  Here, the Court found that the theft was already complete.  The interference with property could no longer be prevented, and the defendant could further no longer prevent an injury, as the injury had occurred.  Therefore, a defense of property instruction was inappropriate.   Specifically, the Court held that “an owner of property cannot use force to defend that property when (1) the interference with the property occurs when the defendant was not present, (2) the interference has been completed and the property is no longer in the owner’s possession, and (3) the property has been removed from an area within the owner’s control.” http://www.courts.wa.gov/opinions/pdf/D2%2048949-0-II%20Published%20Opinion.pdf


State v. Allen:  The Court affirmed the trial court’s dismissal of the State’s allegations of aggravating circumstances under chapter 10.95 RCW on double jeopardy grounds.  The State had charged Darcus Allen with four counts of premeditated murder with two aggravating circumstances, and filed a notice seeking the death penalty.  The jury convicted Mr. Allen, but found unanimously that the State had not proven the aggravating circumstances beyond a reasonable doubt.  The state Supreme Court reversed Mr. Allen’s convictions, and the state re-filed, this time not seeking the death penalty but still alleging the same aggravating circumstances previously filed.  The trial court dismissed the aggravators on Mr. Allen’s motion, citing double jeopardy.  The Court reasoned that the jury’s unanimous finding on the aggravating circumstances was an acquittal and, further, that the aggravating circumstances were the functional equivalent of elements of the charged crime.  The Court pointed to Apprendi v. New Jersey, 530 U.S. 466, 489, 133 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), for the proposition that “factors which raise the penalty for a crime, other than a fact of conviction, are the functional equivalent of elements.  In other words, they are akin to elements, must be submitted to a jury, and must be proven beyond a reasonable doubt.”  http://www.courts.wa.gov/opinions/pdf/D2%2048384-0-II%20Order%20Publishing.pdf


State v. Cofield and Jeter:  The Court found that the juvenile court and the superior court erred in denying Mr. Cofield and Mr. Jeter contested record-sealing hearings after the juvenile court received objections to their records being sealed at the administrative record-sealing hearing.  The Court reasoned that under RCW 13.50.260(1)(b), the juvenile court must schedule an administrative record sealing hearing at a juvenile’s disposition hearing.  RCW 13.50.260(1)(a) clearly states that the juvenile court “shall” seal the juvenile’s court record at the administrative record-sealing hearing unless “the court receives an objection to sealing or the court notes a compelling reason not to seal.”  If the juvenile court receives an objection or notes a compelling reason not to seal a juvenile offender’s record, the statue provides that “the court shall set a contested hearing to be conducted on the record to address sealing.”  RCW 13.50.260(1)(a) (emphasis added).  RCW 13.50.260(1) makes clear that the legislature intended that juvenile courts seal all juvenile offenders’ records unless certain exceptions apply.  RCW 13.50.260(1) creates a presumption that the juvenile court will seal a juvenile offender’s court record at the administrative record-sealing hearing.  To overcome this presumption, there must be an objection or the juvenile court must note a compelling reason not to seal the record.  If there is such an objection, the juvenile court shall set a contested record-sealing hearing.  RCW 13.50.260(1)(a).  Therefore, as there was an objection here, a contested hearing should have been held. http://www.courts.wa.gov/opinions/pdf/D2%2049039-1-II%20Published%20Opinion.pdf

 


Division III Court of Appeals

State v. Small:  In this partially published opinion, the Court found no violation of Mr. Small’s public trial right when a record of the jury selection process, including silent, on-paper peremptory challenges, was made and misfiled within the clerk’s papers but not within the record of the trial.  The court reasoned that the jury selection process occurred in open court, visible to the public, and that after the notations on the seating chart were made, any member of the public could have requested, and would eventually have received, a copy of that chart.  http://www.courts.wa.gov/opinions/pdf/312267_pub.pdf


State v. Novikoff:  The Court upheld Alex Novikoff’s convictions for felony violation of a protection order and fourth degree assault, rejecting his arguments that the fourth-degree assault conviction either violated double jeopardy protections or merged with the no contact order violation.  The Court found that though the crimes were the same in law and fact, the legislature had signaled a clear intent to make the two crimes punishable separately.  The primary purpose of the assault statutes is to prevent assaultive behavior, but chapter 26.50 RCW, which controls the protection order, serves additional purposes beyond prevention of assault-it addresses the serious societal problem of domestic violence, it assigns more serious penalties than the assault statutes, and it punishes contempt of court. Further, amendments to chapter 26.50 RCW had recently included a statement in the intent section: “The legislature finds this act necessary to restore and make clear its intent that a willful violation of a no-contact provision of a court order is a criminal offense and shall be enforced accordingly to preserve the integrity and intent of the domestic violence act.”  Based on this, the Court found legislative intent was the punish the two crimes separately, and upheld the convictions.  http://www.courts.wa.gov/opinions/pdf/344584_pub.pdf

 


 Federal Law


Ninth Circuit of Appeals

United States v. Preston:  The panel reversed a conviction on two counts of aggravated sexual abuse of a child, and remanded for a new trial.  The panel held that the cumulative effect of the following errors rendered the defendant’s trial fundamentally unfair:  (1) improper witness testimony that bolstered the alleged victim’s credibility and offered opinion on the credibility of sex abuse allegations in general; (2) prejudicial propensity evidence in the form of the defendant’s ex-wife’s testimony regarding a child-incest fantasy the defendant allegedly had in 2003; and (3) prosecutorial misconduct – namely, commenting on the defendant’s decision not to testify, witness vouching, and misstating the evidence in summation.  

Concurring, Judge Kozinski joined the majority opinion, including Part III.B, because the district court erred in admitting testimony about the defendant’s masturbation to establish intent, where the government provided no other rationale for introduction of this evidence.  Judge Kozinski wrote that in the event of a retrial, he does not read this court’s ruling as precluding the government from identifying a different basis on which to seek admission of the testimony, such as to show that the defendant was sexually aroused by young boys.  http://cdn.ca9.uscourts.gov/datastore/opinions/2017/10/17/15-10521.pdf


United States v. Wallen:  The panel vacated the defendant’s conviction after a bench trial for killing three grizzly bears in violation of the Endangered Species Act.  The panel rejected the defendant’s contention that his offense was serious, rather than petty, entitling him to a trial by jury.  The panel held that the magistrate judge, who served as the trier of fact at trial, misconceived the self-defense element of the offense.  The panel held that the “good faith belief” defense for a prosecution under 16 U.S.C. § 1540 is governed by a subjective, rather than an objective, standard, and is satisfied when a defendant actually, even if unreasonably, believes his actions are necessary to protect himself or others from perceived danger from a grizzly bear.  Because the district court applied an objective standard, and the error was not harmless, the panel vacated the conviction and remanded for a new trial.  The panel rejected the defendant’s contention that, even if the Constitution does not guarantee his right to a jury trial, he is entitled to one, because if he is again tried by a judge, that judge would have access to the defendant’s record of conviction, biasing the trier of fact.   http://cdn.ca9.uscourts.gov/datastore/opinions/2017/10/25/16-30033.pdf


United States v. Kelly: The panel affirmed a conviction for selling and possessing with the intent to sell over 446 grams of ethylone, and dismissed the defendant’s challenge to his sentence.   The panel rejected the defendant’s contention that the Drug Enforcement Administration violated the nondelegation doctrine by temporarily adding ethylone as a Schedule I controlled substance.  The panel explained that the plain language of the Controlled Substances Act, as codified at 21 U.S.C. §§ 811(h) and 812(b), permits the DEA to make findings for a parent substance as a basis to temporarily schedule that substance and its isomers.    The panel rejected the defendant’s contention that the DEA violated due process by failing to provide adequate notice that ethylone was a controlled substance.  The panel explained that the defendant received fair notice when the DEA filed the Notice and Order in the Federal Register.  The panel held that the rule of lenity does not apply because the text, history, and purpose of the Controlled Substances Act make unambiguous that Congress intended to empower the DEA to temporarily schedule isomers.   The panel held that because the intent of Congress is clear that the DEA has authority to temporarily schedule a parent substance and its isomers, the district court properly accorded Chevron deference to the agency interpretation.  The panel held that the defendant’s challenge to the district court’s criminal history calculation and resulting sentence is waived.  http://cdn.ca9.uscourts.gov/datastore/opinions/2017/10/30/16-10460.pdf


United States v. Johnson:  The panel reversed the district court’s denial of the defendant’s motion for a judgment of acquittal in a case in which the defendant was convicted of obstruction of justice under 18 U.S.C. § 1512(b)(3) for failing to include material information about the use of force upon an inmate in reports documenting the encounter with the inmate.  The panel held that the “reasonable likelihood” standard articulated in Fowler v. United States, 563 U.S. 668 (2011), applies to the federal nexus requirement of § 1512(b)(3). Applying the Fowler standard, the panel held that there was insufficient evidence for any rational juror to find that it was reasonably likely that the defendant’s reports would have reached federal officers.  http://cdn.ca9.uscourts.gov/datastore/opinions/2017/11/02/16-50018.pdf


United States v. Hernandez-Quintania:  The panel affirmed (1) a conviction under 18 U.S.C. § 1326 for reentry by a previously-deported alien without the express consent of the Attorney General to reapply for admission, and (2) the resulting revocation of the defendant’s supervised release from a prior illegal reentry conviction.   The panel rejected the defendant’s contention that the government failed to prove he did not obtain the Attorney General’s consent to reapply for admission to entering the United States.  The panel held that § 1326 requires a deported alien to receive the Attorney General’s consent to reapply for admission after his or her most recent deportation, regardless of whether he or she had prior permission to reapply, and that the evidence was sufficient for the jury to find that the defendant was in the United States without such consent. The panel held that the district court properly denied the defendant’s Batson challenge asserting that the government struck two jurors based on their ethnicity.  The panel held that the totality of the circumstances does not raise an inference that the government’s challenges were racially motivated, that the defendant failed to make a prima facie case of discrimination, and that the district court’s comments regarding the possible reasons for striking the jurors did not constitute structural error.   http://cdn.ca9.uscourts.gov/datastore/opinions/2017/11/03/16-50171.pdf


Browning v. Baker:  The panel filed an order in which (1) Judges Wardlaw and Gould amended their September 20, 2017, majority opinion in Paul Browning’s appeal from the denial of his habeas corpus petition; (2) Judge Callahan objected to any basis for expanding the COA, and stood by her dissent; and (3) the panel denied a Petition for Panel Rehearing.  In the opinion, the panel affirmed the district court’s denial of Mr. Browning’s habeas corpus petition as to his escape conviction; reversed the district court’s denial of the petition as to Browning’s convictions of burglary, robbery with the use of a deadly weapon, and murder with the use of a deadly weapon; and remanded for further proceedings.  Mr. Browning contended that the prosecutor withheld material evidence favorable to the defense in violation of his constitutional rights as described in Brady v. Maryland, 373 U.S. 83 (1963), and presented false and misleading evidence at trial in violation of his constitutional rights as described in Napue v. Illinois, 360 U.S. 264 (1959).  The panel held that an officer’s shoeprint observation, a witness’s expectation of a benefit for his testimony, and the precise description of the assailant’s hairstyle received from the victim were all favorable to Browning under Brady.  The panel held that Mr. Browning’s Napue claim fails because it was not clearly established at the time of Supreme Court of Nevada’s decision that a police officer’s knowledge of false or misleading testimony would be imputed to the prosecution. For the Brady evidence, except for the witness’s expectation of a benefit for his testimony, the Supreme Court of Nevada did not explicitly address whether this evidence was favorable to Mr. Browning.  The panel held that had the Supreme Court of Nevada not viewed the evidence as favorable to the defense, it would have been an unreasonable application of Supreme Court precedent.  The panel also held that it was an objectively unreasonable application of Supreme Court precedent to hold that the Brady materiality standard was not met here, and therefore concluded that the district court should have granted habeas relief on Mr. Browning’s Brady claims.  Mr. Browning also contended that he was denied his right to effective assistance of trial counsel due to inadequate pretrial investigation and preparation.  Granting Mr. Browning’s motion to expand the certificate of appealability, and explaining that the court considers counsel’s conduct as a whole to determine whether it was constitutionally adequate, the panel wrote that the district court erred by limiting the COA to particular “claims” that counsel’s failure to investigate particular avenues of evidence were deficient.  The panel held that Mr. Browning’s trial counsel unreasonably failed to investigate Mr. Browning’s case, and that the Supreme Court of Nevada unreasonably concluded that Mr. Browning failed to prove just that.  The panel amended the opinion to state that because Mr. Browning’s ineffective of assistance of counsel claims succeed on other grounds, it need not address other alleged deficiencies argued by Mr. Browning in support of an expansion of the COA.  The panel held that the Supreme Court of Nevada’s conclusion that any deficient performance did not prejudice Mr. Browning was objectively unreasonable. The panel concluded that Mr. Browning is entitled to a writ of habeas corpus with respect to his convictions of burglary, robbery with the use of a deadly weapon, and murder with the use of a deadly weapon.  The panel wrote that Mr. Browning is not entitled to relief as to his escape conviction because he offered no reason to call its validity into question.

Dissenting in part, Judge Callahan wrote that a meaningful application of the deferential standard of review under AEDPA compels the conclusion that the Nevada Supreme Court was not objectively unreasonable in rejecting Mr. Browning’s ineffective assistance of counsel claim as well as his claims under Brady and Napuehttp://cdn.ca9.uscourts.gov/datastore/opinions/2017/11/03/15-99002.pdf

 

CJE Wire: Case Law Updates — 2017 October 13

 


 Washington State Courts


Washington State Supreme Court

Blomstrom v. Tripp:  The Washington State Supreme Court found that the three petitioners in this consolidated case lacked an adequate remedy at law in the lower courts, and therefore were entitled to statutory writs of review to challenge pre-trial random UA requirements.  In an opinion authored by Justice Wiggins, and joined by Justices Stephens, Gordon McCloud, Johnson, and Owens, the Court further found that the pre-trial testing requirements violated Article 1, section 7 of the Washington State Constitution, as the UA requirements invaded the petitioners’ private affairs, and there was no legal authority for the imposition of the pre-trial testing requirements.  The Court declined the State’s invitation to adopt the federal special needs exception to the warrant requirement in this context, holding that the petitioners did not have a diminished expectation of privacy pre-trial, noting that all were presumed innocent at this stage of proceedings.

Dissenting in part, Justice Gonzalez, joined by Chief Justice Fairhurst, and Justices Madsen and Yu, argued that the majority’s interpretation of Article 1, Section 7 usurps the trial court’s authority to determine pre-trial release conditions.  The dissent noted that probable cause for prosecution had been found in each case, and that the probable cause finding was evidence that the defendant may reoffend.  Therefore, the dissent argued, each had a diminished expectation of privacy and the court had the authority under CrRLJ 3.2 to order random drug testing as a pre-trial condition of release.


State v. Barnes:  In an opinion authored by Justice Owens and joined by Justices Johnson and Madsen, a plurality of the Court determined that a riding lawn mower does not fit the definition of a “motor vehicle” under RCW 9A.56.065, Washington’s theft of a motor vehicle statute.  The Court reasoned that the legislature had chosen not to define “motor vehicle” in the theft statute, and therefore the Court gave the term its plain and ordinary meaning.  Though that definition could encompass a riding lawn mower, the Court determined that the legislature had explicitly indicated a differing intent, noting that the legislature used the term “car,” “auto,” or “auto theft” more often in its findings than the term “motor vehicle,” and that the legislature “passed this bill with the explicit purpose of curbing the rising rate of auto thefts.”  The Court noted in dicta that the legislative history of the act further supports this interpretation. 

Concurring, Justice Wiggins, joined by Justices Gordon McCloud and Stephens, wrote separately to clarify two steps the concurrence believed were necessary to the analysis.  First, the Court should “should consider the entirety of the statute when interpreting the phrase “motor vehicle.” Second, upon concluding the term is ambiguous, the concurrence wrote that the Court “must serve the legislature’s stated intent in light of the circumstances in which the statute was passed.” Following this process, the concurrence reached the same conclusion as the lead opinion. 

Dissenting, Justice Gonzales, joined by Justice Yu and the Chief Justice, agreed with the lead opinion’s statement that “a plain reading of the term [‘motor vehicle’] could conceivably include a riding lawn mower,” and that it is not inconceivable for the legislature to have intended this result.  The dissent argued that the Court’s analysis should turn on the plain meaning of the statute, which in the dissent’s opinion, included riding lawn mowers.  The dissent claimed that the lead opinion rewrote the statute “because it believes the legislature probably meant ‘automobiles.’”  To the contrary, the dissent argued, the statute clearly says, “motor vehicle,” and the legislative definition of the term “vehicle” incudes “all self-propelled vehicles, such as low-speed, four-wheeled neighborhood electric vehicles, RCW 46.04.320, and farm mowing machines, RCW 46.04.180.”  The dissent argued that the Court should not have disregarded or circumvented the plain meaning of the statute.  http://www.courts.wa.gov/opinions/pdf/938296.pdf


State v. Salgado-Mendoza:  Justice Stephens, joined by Chief Justice Fairhurst and Justices Wiggins, Gonzales, and Owens determined that the State’s disclosure of the State Toxicologist witness the morning of trial was misconduct, but had not prejudiced the defendant in this case, and the trial court’s decision not to impose sanctions was not “manifestly unreasonable” given the facts of the case.  The Court observed that the State had disclosed the names of nine toxicologists from the lab five months prior to trial, narrowing this list down to three the day before trial and to one the morning of trial.  The Court reasoned that counsel had had ample time to prepare to cross-examine all nine toxicologists, that all nine would have provided substantively similar testimony, and the defendant was not prejudiced by the late disclosure.  The Court reasoned that CrRLJ 8.3(b) and case law require actual prejudice to be demonstrated by a preponderance of the evidence, and found no actual prejudice in this case.  The Court noted with displeasure, however, the prosecutor’s apparent minimization of the State’s discovery obligations, having stated that “[t]he defendant was given the name as soon as we had it and that’s all we can do in terms of disclosure.”  The Court found this statement incorrect, stating that “pursuing disclosure of information the prosecutor does not have is literally the purpose of CrRLJ 4.7(d).” In a footnote, the Court also expressed concern that this pattern of disclosure appears to be the standard operating procedure for the state toxicology lab. 

Dissenting, Justice Madsen, joined by Justices Yu, Gordon McCloud, and Johnson, agreed that the late disclosure of the name of the testifying toxicologist in Mr. Salgado-Mendoza’s Trial constituted misconduct.  The dissent, however, argued that Mr. Salgado Mendoza was prejudiced by this delayed disclosure. The dissent observed that “[f]orcing a defendant to bear the burden of preparing to cross-examine a long list of witnesses when the State only intends to call one is not how our system of justice operates. The State cannot cite funding deficiencies and simply shift its burden of prosecution onto defense counsel. If the State wishes to pursue prosecution, it must allocate sufficient resources to its departments so that they may operate in a way that is consistent with a defendant’s right to a fair trial. By understaffing the State’s toxicology laboratory so that they cannot confirm who will testify until the day of trial, the State is not meeting this burden and defendants are being forced to compensate for the deficiency.”  The dissent argued that the defense showed actual prejudice because the State’s late disclosure forced the defendant to choose between his right to a speedy trial and his right to adequately prepared counsel, noting that counsel had made it clear he would have preferred to request a continuance, but the defendant did not want to waive his speedy trial rights.  Citing as an example of defense counsel’s lack of preparedness, the dissent pointed to an instance in cross-examination where counsel attempted to question the testifying toxicologist about a 2009 study “that allegedly criticized certain tests regularly used by the State toxicology laboratory.”  However, the toxicologist was not aware of the specific study, leading the trial court to sustain the State’s objection to the line of questioning due to this unfamiliarity.  The dissent observed, “[h]ad the State provided Salgado-Mendoza with the name of the testifying toxicologist prior to the morning of trial, defense counsel could have interviewed the toxicologist, learned what studies he was familiar with, and provided him a copy of the unfamiliar study so that they could have a productive dialogue about it during cross-examination. Without that time for preparation, defense counsel’s attempt at using the study to defend his client simply fell flat.”  The dissent also stressed that the trial court erred in describing toxicologist witnesses as “fungible,” and argued that the majority ruling minimized the importance of the differences between these experts.  The dissent concluded that “we cannot demand a criminal defendant go above and beyond to compensate for the State’s mismanagement of its expert witnesses,” and argued that the case should have been dismissed, noting that allowing “underfunding and congestion at the State’s toxicology lab to excuse fair trial rights” gives the State no incentive to remedy the problem.  http://www.courts.wa.gov/opinions/pdf/932930.pdf

 


Division I Court of Appeals

State v. Sinrud:  The Court reversed Ms. Sinrud’s conviction for possession of a controlled substance with intent to deliver and remanded for a new trial.  The Court found that the element of “knowingly” was added to the possession requirement under the law of the case doctrine, as this word was part of the jury instructions, but that there was sufficient evidence to support this element.  The Court also found that one of the jury instructions, which contained the phrase “[t]he law requires at least one additional corroborating factor” with reference to possession with intent to deliver, constituted a judicial comment on the evidence.  The Court agreed, reasoning that the sentence prior to the objected to sentence stated that “the law requires” substantial corroborating evidence. By stating that the law requires at least one additional factor in the next sentence, the Court found that this conflated these two requirements “such that a reasonable juror would have interpreted the second sentence to be defining the first.”  The Court found that there could have been prejudice, as no direct evidence demonstrated that Ms. Sinrud intended to deliver the drugs she possessed.  http://www.courts.wa.gov/opinions/pdf/750526.pdf

 


Division II Court of Appeals

State v. Pippin:  In this partially published opinion, the Court found that Mr. Pippin’s tent, which served as his residence, and its contents were entitled to constitutional privacy protection under article I, section 7.  The Court reasoned that Mr. Pippin’s tent served “as a refuge or retreat from the outside world,” and he thus had an expectation of privacy in the tent and the belongings within under article I, section 7. The Court found that the “law is meant to apply to the real world, and the realities of homelessness dictate that dwelling places are often transient and precarious.  The temporary nature of Pippin’s tent does not undermine any privacy interest.”  The court found that the fact that Mr. Pippin was unlawfully occupying public land did not diminish this privacy interest.  The court concluded that “…the law is something more than a stay against anarchy or oil for the wheels of trade.  Its work also is to bring signs of justice amid our thirsts and furies and, in doing so, remind us of our humanity.”  http://www.courts.wa.gov/opinions/pdf/D2%2048540-1-II%20Published%20Opinion.pdf


In re Restraint of Sorenson:  The court dismissed Mr. Sorenson’s PRP as time barred, as it was filed about 13 months after the Court issued its mandate on his direct appeal.  The Court found that the time taken by the trial court to correct scrivener’s errors in his judgment and sentence, as directed on remand, did not toll the one-year period as the trial court did not exercise its independent judgment in correcting the scrivener’s errors on remand.  The Court reasoned that there were no reviewable issues when the trial court had not exercised any independent judgment on remand, making the time of the mandate the date that the decision was final.  http://www.courts.wa.gov/opinions/pdf/D2%2048111-1-II%20Published%20Opinion.pdf

 


 Federal Law


Ninth Circuit of Appeals

Gonzalez v. Sherman: Reversing the district court’s dismissal of a California state prisoner’s habeas corpus petition and remanding, the panel held that a state court’s alteration of the number of presentence credits to which a prisoner was entitled under California law constitutes a new, intervening judgment which renders a subsequent federal habeas petition a first rather than second or successive petition under 28 U.S.C. § 2244(b)(1). http://cdn.ca9.uscourts.gov/datastore/opinions/2017/10/11/14-56855.pdf


Kirkpatrick v. Chappell:  The panel vacated the district court’s order dismissing for lack of exhaustion claims in William Kirkpatrick, Jr’s habeas corpus petition challenging his murder conviction and death sentence, and remanded to the district court so that it may adjudicate those claims on the merits.  The district court dismissed the claims as unexhausted on the grounds that, although Mr. Kirkpatrick presented them to the California Supreme Court, he subsequently waived them by means of a handwritten, pro se filing.  The California Supreme Court ruled that the handwritten form constituted a valid waiver despite the conclusion of the referee it appointed that there was not enough evidence that the waiver was made knowingly, voluntarily, and intelligently.  The district court agreed with the California Supreme Court.  The panel held that there is insufficient evidence in the record to support a finding that Mr. Kirkpatrick’s handwritten form constituted a valid waiver of his right to proceed and that the State of California failed to carry its burden to the contrary.  Consequently, the panel held that the district court erred in dismissing the claims as unexhausted.

Dissenting, Judge Kozinski wrote that the majority failed to defer to the California Supreme Court whose findings are supported by more than enough evidence, and that under de novo review Kirkpatrick would fare no better, but that none of this matters because California has no functional death penalty. http://cdn.ca9.uscourts.gov/datastore/opinions/2017/10/10/14-99001.pdf


United States v. Bonnett:  Affirming a sentence for receipt and distribution of child pornography, the panel held that malingering may support an obstruction of justice enhancement pursuant to U.S.S.G. § 3C1.1.  The panel explained that without any factual objections to resolve, there was no violation of Fed. R. Crim. P. 32.  The panel rejected the defendant’s challenge to an enhancement pursuant to U.S.S.G. § 2G2.2(b)(3)(B) (2015) for distribution of pornography for a “thing of value.”  http://cdn.ca9.uscourts.gov/datastore/opinions/2017/10/10/15-10557.pdf


United States v. Slade:  The panel vacated a sentence for being a felon in possession of a firearm, and remanded for resentencing, in a case in which the district court treated the defendant’s prior conviction under Washington’s second-degree assault statute, RCW 9A.36.021, as a “crime of violence” under the United States Sentencing Guidelines.   The panel held that United States v. Jennen, 596 F.3d 594 (9th Cir. 2010), in which this court affirmed a sentence when the district court had treated a prior conviction under section 9A.36.021(1)(c) as a crime of violence, has been effectively overruled by the Supreme Court’s decisions in Descamps v. United States, 133 S. Ct. 2276 (2013), and Mathis v. United States, 136 S. Ct. 2243 (2016).  Applying United States v. Robinson, 869 F.3d 933 (9th Cir. 2017), the panel wrote that section 9A.36.021 criminalizes conduct that does not meet the generic federal definition of crime of violence and is not divisible.  The panel concluded that the district court therefore erred in applying the modified categorical approach and in determining that the defendant’s prior conviction constituted a crime of violence, which caused the district court to miscalculate the defendant’s base offense level and Guidelines range.   http://cdn.ca9.uscourts.gov/datastore/opinions/2017/10/10/16-30150.pdf

 

 

 

 

 

CJE Wire: Case Law Updates — 2017 October 3

 


 Washington State Courts


Washington State Supreme Court

In Re Canha:  In a unanimous opinion authored by Justice Wiggins, the Court found that the lower court erroneously failed to conduct a comparability analysis before including four out-of-state convictions in Steven Canha’s offender score.  The State conceded that one of the convictions was not comparable, and Mr. Canha conceded that another was in fact comparable.  With regard to the last two offenses, voluntary manslaughter in California and unlawful possession of a firearm in Oregon, the Court found that neither of the offenses were legally comparable to an offense in Washington.  However, because of the intent requirement then in place in California, the Court found that the voluntary manslaughter offense was factually comparable to Washington’s offense of Second Degree Murder.  With regard to the unlawful possession of a firearm offense, the Court determined that Second Degree Murder counts as a “serious offense” under Washington Law, and that this case was likewise factually comparable, despite the fact that any felon in the State of Oregon is prohibited from possessing a firearm.  The Court concluded that three of Mr. Canha’s four out-of-state convictions were properly included in his offender score, and remanded for resentencing due to the change in offender score required by removing one of those convictions.  http://www.courts.wa.gov/opinions/pdf/941751.pdf

 


Division III Court of Appeals

State v. Sleater:  The Court affirmed an order denying Kasi Sleater’s motion to vacate her 2006 conviction for possession of methamphetamines.  Ms. Sleater argued that a subsequent offense occurring after the certificate of discharge issued for the initial offense was not a “new crime” pending vacation of the offense.  Ms. Sleater obtained a certificate of discharge for a 2006 conviction on May 22, 2008.  However, a week prior to the issuance of the certificate, she had been arrested for possession of methamphetamine with intent to deliver.  She pled guilty on May 29, 2008.  The Court found that Ms. Sleater’s subsequent motion to vacate the 2006 conviction was properly denied, because the 2008 conviction prevented vacation of the 2006 conviction.  In what the court termed a “clever” argument, Ms. Sleater posited that the 2008 offense was not new, as it had occurred and was known to law enforcement prior to the certificate of discharge, and that only an offense occurring after the certificate of discharge should prevent vacation.  The Court found that the plain language of the statue, which prevents vacation if an offender has been convicted of a new crime since the date of discharge for an older crime, clearly focuses on the conviction date, not the date of arrest or charging.  “It is the fact of conviction of a new crime, not the date that the new crime was committed, that has significance for the vacation rules,” the Court concluded.  http://www.courts.wa.gov/opinions/pdf/348512_pub.pdf

 

 


 Federal Law


Ninth Circuit of Appeals

United States v. Jayavarman:  The panel affirmed a conviction for attempt to produce and transport into the United States a visual depiction of a minor engaged in sexually explicit conduct in violation of 18 U.S.C. § 2251(e) (Count 1B), vacated a conviction for attempt to aid and abet travel with intent to engage in illicit sexual conduct in violation of 18 U.S.C. § 2243(b) (Count 2B), vacated the sentence as to both counts, and remanded for resentencing. The panel accepted the government’s concession that the conviction as to Count 2B must be vacated because § 2423 does not cover attempted aiding and abetting.  The panel held that a defendant may be convicted of an attempt to produce and transport a visual depiction of a minor engaged in sexually explicit conduct when he believes that the victim is a minor, regardless of the victim’s actual age.  The panel rejected the defendant’s contentions (1) that the Constitution’s Foreign Commerce Clause does not authorize Congress to prohibit transportation of a sexually explicit visual depiction pursuant to 18 U.S.C. § 2251(c) if the depiction does not depict an actual minor; and (2) that prohibiting an attempt to make a sexually explicit video with a performer who the producer mistakenly believes to be a minor would chill lawful speech in violation of the First Amendment.    The panel rejected the defendant’s contention that the jury instruction as to Count 1B constituted a constructive amendment of the indictment.  Rejecting the defendant’s sufficiency-of-the-evidence challenge, the panel held that a rational jury could have found that the government proved beyond a reasonable doubt that the defendant believed the victim was a minor at the time he made and transported the visual depictions.  Rejecting the defendant’s challenge to the district court’s grant of the government’s motion in limine to admit audio recordings of the defendant’s statements, the panel concluded that the district court did review the transcripts, and that even if the district court had not read every word, the error would have been harmless because the exhibits were clearly admissible under Fed. R. Evid. 403.  Rejecting the defendant’s contention that the district court erred under the Court Interpreters Act, the panel held that the district court did not clearly err in determining that the defendant was sufficiently proficient in English that he did not require an interpreter. In addition to vacating the defendant’s conviction as to Count 2B, the panel vacated his sentence as to Count 1B and remanded for resentencing as to both counts because his sentence as to Count 1B was likely affected by his conviction as to Count 2B.  http://cdn.ca9.uscourts.gov/datastore/opinions/2017/09/26/16-30082.pdf


Rodriguez v. McDonald:  The panel reversed the district court’s judgment denying Jessie Rodriguez’s habeas corpus petition challenging his conviction for second-degree murder and attempted murder, and remanded, in a case in which Mr. Rodriguez, who was fourteen years old at the time detectives interviewed and arrested him, argued that his written confession was obtained in violation of Miranda v. Arizona.   After reviewing the record available to the state courts, including a videotape of the interview and transcript of that videotape, the panel held that the California Court of Appeal’s determination that the detectives honored Mr. Rodriguez’s invocation of his right to counsel was unreasonable.  Having concluded that the state court’s decision was based on an unreasonable determination of facts, the panel reviewed the legal issues de novo, and held that the government failed to meet its heavy burden of showing that Mr. Rodriguez’s subsequent waiver of his right to counsel was knowing, intelligent, and voluntary.  The panel held that the admission of Mr. Rodriguez’s confession was not harmless, and that Mr. Rodriguez is therefore entitled to habeas relief.   http://cdn.ca9.uscourts.gov/datastore/opinions/2017/09/29/12-56594.pdf

 

 

 

 

CJE Wire: Case Law Updates — 2017 September 22

 


 Washington State Courts


Division III Court of Appeals

State v. D.E.D.: The Court overturned D.E.D.’s juvenile adjudication finding him guilty of obstructing a public servant, concluding that “his passive resistance to an investigatory stop was not a crime under these facts.” D.E.D was stopped after a call to 911 complaining of a group of youth in front of the caller’s house who “did not belong in the neighborhood.” The responding officer found no group, only the defendant making his way down the street. With no justification to contact him, the officer nonetheless attempted to engage D.E.D. in conversation, which was met with open hostility. The officer then received a call about a group of young men with a gun nearby but, rather than allowing D.E.D. to continue on his way, the officer attempted to handcuff him, though telling him he was not under arrest. D.E.D resisted being handcuffed, and was then arrested for obstruction. The Court held that there is “no duty to cooperate with police,” and that lack of cooperation with an investigation cannot be used as the basis for an obstruction charge. Specifically, the Court found that “passive resistance consistent with the lack of a duty to cooperate…is not criminal behavior.” The Court cautioned against extending the holding to instances of more active resistance, however.

Concurring, Judge Fearing agreed with the conclusion, but disagreed with the basis, arguing that the officer had no reasonable suspicion that D.E.D had engaged in criminal activity, such that the officer had a basis to conduct a Terry stop. Further, the concurrence disagreed that there was no duty to cooperate with police if in fact the stop had been lawful. Judge Fearing opined that the detainee at the least “should cooperate by standing still and refraining from struggling with the officer.” http://www.courts.wa.gov/opinions/pdf/338584_pub.pdf

 

 


 Federal Law


Ninth Circuit of Appeals

Browning v. Baker: The panel affirmed the district court’s denial of Paul Browning’s habeas corpus petition as to his escape conviction; reversed the district court’s denial of the petition as to Mr. Browning’s convictions of burglary, robbery with the use of a deadly weapon, and murder with the use of a deadly weapon; and remanded for further proceedings. Mr. Browning contended that the prosecutor withheld material evidence favorable to the defense in violation of his constitutional rights as described in Brady v. Maryland, 373 U.S. 83 (1963), and presented false and misleading evidence at trial in violation of his constitutional rights as described in Napue v. Illinois, 360 U.S. 264 (1959). The panel held that an officer’s shoeprint observation, a witness’ expectation of a benefit for his testimony, and the precise description of the assailant’s hairstyle received from the victim were all favorable to Mr. Browning under Brady. The panel held that Mr. Browning’s Napue claim fails because it was not clearly established at the time of Supreme Court of Nevada’s decision that a police officer’s knowledge of false or misleading testimony would be imputed to the prosecution. For the Brady evidence, except for the witness’s expectation of a benefit for his testimony, the Supreme Court of Nevada did not explicitly address whether this evidence was favorable to Mr. Browning. The panel held that had the Supreme Court of Nevada not viewed the evidence as favorable to the defense, it would have been an unreasonable application of Supreme Court precedent. The panel also held that it was an objectively unreasonable application of Supreme Court precedent to hold that the Brady materiality standard was not met here, and therefore concluded that the district court should have granted habeas relief on Mr. Browning’s Brady claims. Mr. Browning also contended that he was denied his right to effective assistance of trial counsel due to inadequate pretrial investigation and preparation. Granting Mr. Browning’s motion to expand the certificate of appealability, and explaining that the court considers counsel’s conduct as a whole to determine whether it was constitutionally adequate, the panel wrote that the district court erred by limiting the COA to particular “claims” that counsel’s failure to investigate particular avenues of evidence were deficient. The panel held that Mr. Browning’s trial counsel unreasonably failed to investigate Mr. Browning’s case, and that the Supreme Court of Nevada unreasonably concluded that Mr. Browning failed to prove just that. The panel held that the Supreme Court of Nevada’s conclusion that any deficient performance did not prejudice Mr. Browning was objectively unreasonable. The panel concluded that Mr. Browning is entitled to a writ of habeas corpus with respect to his convictions of burglary, robbery with the use of a deadly weapon, and murder with the use of a deadly weapon. The panel wrote that Mr. Browning is not entitled to relief as to his escape conviction because he offered no reason to call its validity into question.

Dissenting in part, Judge Callahan wrote that a meaningful application of the deferential standard of review under AEDPA compels the conclusion that the Nevada Supreme Court was not objectively unreasonable in rejecting Mr. Browning’s ineffective assistance of counsel claim as well as his claims under Brady and Napue. http://cdn.ca9.uscourts.gov/datastore/opinions/2017/09/20/15-99002.pdf