04 Aug Case Law Update, Week Ending 7-31-15
The following criminal cases of note were decided during the last week:
Ninth Circuit Court of Appeals
Robinson v Lewis: The panel asked the California Supreme Court to resolve a question of state law that the Ninth Circuit has long struggled to answer, observing that this struggle absorbs appellate and district court resources. The question certified to the California Supreme Court was:
When a state habeas petitioner has no good cause for delay, at what point in time is that state prisoner’s petition, filed in a California court of review to challenge a lower state court’s disposition of the prisoner’s claims, untimely under California law; specifically, is a habeas petition untimely filed after an unexplained 66-day delay between the time a California trial court denies the petition and the time the petition is filed in the California Court of Appeal?
United States v. Carter: The panel affirmed a criminal judgment in a case in which the defendant, who asserts he was under the influence of prescription drugs at the time he entered his guilty plea, contends that the district court, by insufficiently inquiring as to the effect of those drugs at the plea hearing, failed to fulfill its duty under Fed. R. Crim. P. 11(b) to ensure the defendant entered the plea knowingly and voluntarily. The panel held that the scope of the district court’s inquiry was sufficient to ensure that the defendant entered his plea knowingly and voluntarily, and it therefore did not commit a constitutional or procedural error. http://cdn.ca9.uscourts.gov/datastore/opinions/2015/07/28/13-50164.pdf
Orthel v. Yates: The panel affirmed the district court’s order dismissing California state prisoner Klee Christopher Orthel’s habeas corpus petition as untimely. The panel held that the district court did not clearly err in finding that Mr. Orthel possessed sufficient mental competence to understand the need to timely file a petition and to personally prepare and effectuate a filing, and that the district court therefore did not err in determining that Mr. Orthel did not establish an exceptional circumstance that would warrant equitable tolling of AEDPA’s one-year statute of limitations. The panel also held that the district court did not abuse its discretion in deciding not to hold an evidentiary hearing. The panel rejected Mr. Orthel’s contention that a petitioner is entitled as a matter of law to an evidentiary hearing upon making a prima facie showing that would, if true, entitle him to equitable tolling. http://cdn.ca9.uscourts.gov/datastore/opinions/2015/07/28/12-17165.pdf
United States v. Willis: The panel vacated a sentence for a violation of supervised release, and remanded for further proceedings, in a case in which the defendant, who admitted that his conduct constituted the state felony offense of unlawful use of a weapon under section 166.220(1)(a) of the Oregon Revised Statutes, argued that a violation of § 166.220(1)(a) is not categorically a “crime of violence,” for purposes of U.S.S.G. § 7B1.1, and therefore not a Grade A violation. The panel held that before a district court concludes that a defendant committed a Grade A violation of supervised release by engaging in conduct constituting a felony offense that is a crime of violence, it must take the following steps: First, it must determine by a preponderance of the evidence that the defendant’s conduct constituted a federal, state, or local offense. Second, the Court must use the categorical approach set forth in Taylor v. United States, 495 U.S. 575, 600–02 (1990), to determine whether that offense is a categorical match to the federal generic offense of a “crime of violence.” If the federal, state, or local statute criminalizes more conduct than the federal generic offense, the court may consider whether the statute is divisible, Descamps v. United States, 133 S. Ct. 2276, 2283–85 (2013), and whether the offense the defendant committed qualifies as a crime of violence. If the defendant’s conduct constitutes an offense that is a crime of violence, then the court may conclude that the defendant committed a Grade A violation of supervised release. See U.S.S.G. § 7B1.1(a)(1)(A)(i) & cmt. n.1. Because the district court in this case did not specify which of two offenses – attempt or possession – in a divisible statute, § 166.220(1)(a), the defendant’s conduct constituted, and one of the two offenses – possession – may not be a crime of violence in light of the Supreme Court’s decision in Johnson v. United States, No. 13-7120 (U.S. June 26, 2015), the panel vacated his sentence and remanded for further proceedings. The panel noted that because resolution of the issue may prove unnecessary to the ultimate disposition of the case, it need not resolve whether the due process concerns that led Johnson to invalidate the residual clause in the Armed Career Criminal Act are equally applicable to the residual clause in U.S.S.G. § 4B1.2(a). http://cdn.ca9.uscourts.gov/datastore/opinions/2015/07/29/13-30376.pdf
United States v. Mark: The panel reversed the district court’s denial of the defendant’s motion to reconsider its denial of the defendant’s motion to dismiss the indictment, and remanded with instructions to dismiss the indictment, in a case in which the parties agreed that the defendant was given immunity in exchange for his cooperation in a mortgage-fraud investigation. The panel held that in light of the scant record supporting the government’s claim that the defendant breached the immunity agreement (and was therefore amenable to prosecution) and clear evidence that key details of the government’s story were inaccurate, the district court abused its discretion when it failed to either grant the defendant’s motion for reconsideration or order an evidentiary hearing.
Concurring, Judge McKeown wrote separately to emphasize that this case is a textbook lesson in the importance of documentation with regard to immunity deals. http://cdn.ca9.uscourts.gov/datastore/opinions/2015/07/31/13-10579.pdf
United States v. Winkles: The panel dismissed for lack of jurisdiction Clifford Marcus Winkles’ Rule 60(b) motion for relief from judgment following the denial of his section 2255 motion to vacate, set aside, or correct his sentence. The panel held that a certificate of appealability is required to appeal the denial of a legitimate Rule 60(b) motion for relief from judgment arising out of the denial of a section 2255 motion. The panel held that a COA should only issue for the appeal arising from the denial of a Rule 60(b) motion in a section 2255 proceeding if the movant shows that (1) jurists of reason would find it debatable whether the district court abused its discretion in denying the Rule 60(b) motion and (2) jurists of reason would find it debatable whether the underlying section 2255 motion states a valid claim of the denial of a constitutional right. The panel held that Mr. Winkles is not entitled to a COA because he has not made a substantial showing that the district court abused its discretion in denying his Rule 60(b) motion as to the two aspects of the Rule 60(b) motion he presses on appeal: (1) whether the district court should have reopened the time to appeal its denial of his original section 2255 motion and (2) whether the district court should have considered his purported amended section 2255 motion. http://cdn.ca9.uscourts.gov/datastore/opinions/2015/07/31/13-56376.pdf
United States v. Sullivan: The panel withdrew an opinion filed on May 28, 2014, and filed a superseding opinion affirming in part and reversing in part a criminal judgment, and remanding, in a case in which the defendant was convicted under 18 U.S.C. §§ 2251(a) and 2252(a)(4)(B) for producing and possessing a sexually explicit video depicting a 14-year-old girl. The panel held that venue in the Northern District of California for the production count was not improper, and that National Federation of Independent Business v. Sebelius, 132 S. Ct. 2566 (2012), does not undermine this court’s precedent that Congress may regulate even purely intrastate production of child pornography and criminalize its intrastate possession. The panel held that the district court did not err in denying the defendant’s motion to suppress evidence obtained from his laptop computer. Balancing the nature of the intrusion into the defendant’s possessory interests against the government’s interests justifying the intrusion, the panel concluded that the government’s seizure and retention of the laptop for 21 days before obtaining a search warrant was, under the totality of the circumstances, not unreasonable under the Fourth Amendment. The panel held that violations of Calif. Penal Code § 261.5(d) (unlawful sexual intercourse with a minor under 16 years of age) and Calif. Penal Code § 288a(b)(2) (oral copulation with a minor under 16 years of age) are categorically offenses “relating to” aggravated sexual abuse, sexual abuse or abusive sexual conduct involving a minor or ward, and that the district court therefore properly applied the mandatory minimum sentence enhancement provisions contained in 18 U.S.C. §§ 2251(e) and 2252(b)(2). Reading together Morales v. Trans World Airlines, Inc., 504 U.S. 374 (1992), and Mellouli v. Lynch, 135 S. Ct. 1980 (2015), the panel interpreted the phrase “relating to” broadly when applying the Taylor categorical approach unless the text and history of the statute require a narrower construction, which it concluded is not the case with §§ 2251(e) or 2252(b)(2). On the government’s cross-appeal, the panel held that the district court erred in its legal analysis when sustaining the defendant’s objection to the inclusion of a two-level enhancement for obstruction of justice under U.S.S.G. § 3C1.1. The panel remanded for resentencing because it could not tell if the district court would impose the same sentence if it applied the correct legal analysis. http://cdn.ca9.uscourts.gov/datastore/opinions/2015/07/29/12-10196.pdf
Washington State Law
Division II Court of Appeals
Personal Restraint of Schreiber: In this partially published opinion, the Court held that Robin Schreiber failed to demonstrate any actual and substantial prejudice resulting from any courtroom closure during his trial for second degree murder with a firearm sentencing enhancement for the killing of a law enforcement officer. The Court noted that, unlike a direct review, under which an error in courtroom closing requires a reversal regardless of prejudice, a personal restraint petition requires a showing that the closure caused actual and substantial prejudice to the petitioner. Here, Mr. Schreiber claimed that the trial court violated his right to a public trial four times, by failing to conduct Bone-Club hearings before (1) giving prospective jurors confidential questionnaires that were later filed under seal, (2) excluding spectators from voir dire due to a lack of space in the courtroom, (3) questioning two prospective jurors in chambers, and (4) directing the bailiff to speak privately with a juror during the trial. While it was undisputed that the trial court failed to conduct any Bone-Club analysis prior to the closing of the courtroom, the Court reasoned that Mr. Schreiber argued only that the closures were structural errors requiring reversal, and did not either argue or demonstrate that the closures caused him prejudice. The Court therefore denied the petition. http://www.courts.wa.gov/opinions/pdf/D2%2040553-9-II%20%20Part-Published%20Opinion.pdf
State v. Lozano: In this partially published opinion, the Court found that the jury instruction on the reasonable belief defense in this second degree rape case did not violate due process because this defense does not negate an element of rape in the second degree where, as here, the State solely alleged the sexual intercourse occurred with a person incapable of consent by reason of being physically helpless or mentally incapacitated. The defense instead requires the defendant only to prove his belief that the victim was capable of consent was reasonable, whether or not the victim was in fact able to consent to the act. The court further found that Mr. Lozano’s counsel was not ineffective for failing to propose instructions on consent because consent is not an affirmative defense to the charge of rape in the second degree where the State solely alleged the sexual intercourse occurred with a person incapable of consent by reason of being physically helpless or mentally incapacitated. http://www.courts.wa.gov/opinions/pdf/D2%2045242-1-II%20%20Part-Published%20Opinion.pdf