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Post-conviction practice in the Ninth Circuit and the California state courts.

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Last Entry: December 30, 2008 at 11:44:14

Dear Court Reporters (or should I say, "DEAR COURT REPORTERS")

Posted on December 30, 2008
Dear Court Reporters, Having finished reading another all-capitalized reporter's transcript it's time to again implore you to remember that the proper use of capitalization is not simply a matter of style, but it is more a convention designed to assist...

AG Promulgates AEDPA Opt-In Regs

Posted on December 10, 2008
The U.S. Attorney General has promulgated regulations governing opt-in procedures for states seeking fast-track consideration of capital federal habeas cases under AEDPA. As reported by the CJLF, the determinations of whether states qualified for fast track proceedings used to be...

Ninth Circuit Takes First Step Toward Electronic Filing

Posted on January 31, 2008
Last week, the Ninth Circuit announced that it is beginning implementation of an electronic case management and electronic case filing system (CM/ECF). For now, counsel and parties can elect to receive email notification of docket activity. According to the announcement,...

2254(d) "Contrary To" Prong Explicated

Posted on January 31, 2008
Last week, in Frantz v. Hazey, no. 05-16024 (9th Cir., Jan. 22, 2008) an en banc Ninth Circuit panel clarified how a federal habeas court is to proceed when it finds that a state court decision is contrary to US...

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Denial of Motion to Withdraw Faretta Waiver Structural Error

Posted on January 09, 2008
In a serious drug prosecution, the defendant asserted his Sixth Amendment right to represent himself pursuant to Faretta v. California (1975) 422 U.S. 806. During jury selection he changed his mind and asked the trial court to appoint counsel on...

At NGI Extended Commitment Trials Jurors Must Be Instructed On The Issue Of Whether The Person Has Serious Difficulty Controlling Dangerous Behavior

Posted on January 09, 2008
In In re Howard N. (2005) 35 Cal.4th 117, the California Supreme Court held that in order to comport with federal due process principles the extended commitment scheme for minor wards (Welf. & Inst. Code, § 1800, et seq.) must...

Words May Constitute Sufficient Provocation To Reduce Murder To Manslaughter

Posted on January 09, 2008
In a murder prosecution, the trial court instructed the jury pursuant to CALCRIM no. 917 that mere words cannot establish a defense to battery. In addition, the court allowed the prosecutor to argue to the jury that words cannot legally...

SVP Recommitments and Indeterminate Terms, Take 2

Posted on January 09, 2008
As noted in a previous post, two California appellate courts recently concluded that individuals subject to two-year sexually violent predator (SVP) civil commitments at the time the electorate passed Prop 83 can face the prospect of indeterminate terms upon expiration...

Traffic Stops and Temporary Operating Permits

Posted on January 09, 2008
A police officer initiated a traffic stop because the vehicle he observed had expired registration tags on its license plates. The officer subsequently discovered drugs in the vehicle and arrested the driver. The driver then brought a Fourth Amendment suppression...

Introduction Of Deceased Victim's Hearsay Statement Merits Reversal Of Manslaughter Conviction

Posted on December 18, 2007
California Evidence Code section 1370 creates an exception to the hearsay rule that permits the introduction of an unavailable witness' statement to a medical professional "made at or near the time of the infliction or threat of physical injury." In....

Did Prop 83 Eliminate The SVP Extended Commitment Scheme?

Posted on December 18, 2007
In November 2006, the voters enacted Prop 83, which substantially amended the state's sexually violent predator (SVP) civil commitment law, which had also recently been amended by the Legislature in September 2006. Under the old law, commitments were two years...

Cal. Supreme Court Vacates Death Sentence On Faretta Grounds

Posted on December 18, 2007
In between the guilt and penalty phases of a capital murder trial, the defendant brought a Faretta motion to represent himself at the penalty phase. Although the trial court had found the defendant competent to stand trial, it denied appellant's...

Possession Of Cocaine Base For Sale Not Necessarily Lesser Included Offense Of Selling Cocaine Base

Posted on December 18, 2007
The defendant in this case was convicted for both selling cocaine base in one count and possessing that same rock for sale in a second count. A panel of the Third District Court of Appeal held that the possession for...

Are Juvenile Adjudications Prior Convictions Under Apprendi and Blakely? Take 2.

Posted on December 18, 2007
On June 29, 2007, in People v. Nguyen (H028798), a two-justice majority of a panel from the Sixth District Court of Appeal concluded that "the use of a juvenile adjudication to enhance the defendant?s sentence beyond the ordinary, statutorily-mandated maximum...

Cal. Supreme Court Splits On Admissibility Of "Eulogy" Video At Capital Sentencing Hearing

Posted on December 17, 2007
During the penalty phase of the defendant's capital trial, the court permitted the prosecution to show the jury a videotape prepared by the victim's mother portraying the victim's life. The trial court concluded, under Evidence Code section 352, that the...

Sealed Juvenile Records May Not Be Unsealed For Use In SVP Proceedings

Posted on December 17, 2007
The Board of Parole Hearings (BPH) petitioned the juvenile court to disclose an adult prisoner's juvenile records that had been sealed pursuant to Welfare and Institutions Code section 781 (Section 781). BPH intended to use the sealed records to evaluate...

Hospitals Can Be Prisons Too

Posted on December 17, 2007
Pursuant to a California statute that provides for the transfer of mentally ill prisoners to state hospitals, the defendant in this case was transported from a state prison to Atascadero State Hospital. Shortly after his arrival at the hospital, he...

California Trial Courts Have The Discretion To Strike Certain Deadly Weapons Enhancements

Posted on December 17, 2007
After a jury convicted the defendant in this case of robbery and assault charges and found true a special allegation that the defendant personally used a deadly or dangerous weapon in violation of California Penal Code (PC) section 12022(b)(1), the...

Petty Theft With A Prior Is A Lesser Included Offense Of Robbery

Posted on December 17, 2007
A jury convicted a criminal defendant of one count of second degree robbery in violation of California Penal Code (PC) section 211 and one count of petty theft with a prior theft-related conviction in violation of PC section 666. Both...

Late-Filed Civil Commitment Petition Requires Dismissal

Posted on August 14, 2007
California Penal Code section 2960 et seq. provides for the civil commitment of certain mentally disordered offenders (MDOs) during and after their parole period. The MDO Act contains a number of statutorily created deadlines that govern the original commitment and...

Two Cal. Supreme Court Rulings Blunt Impact Of Cunningham

Posted on July 31, 2007
In a pair of unanimous opinions authored by Chief Justice George, the California Supreme Court dealt a major blow to criminal defendants in California hoping to gain reduced sentences by virtue of the U.S. Supreme Court's Cunningham decision. In People...

Cal. Supreme Court Upholds Death Sentence Over Kennard's Dissent

Posted on July 31, 2007
The California Supreme Court affirmed the conviction and death sentence of a man found to have murdered and dismembered a woman in order to prevent her from testifying against him in another case. While Justice Kennard concurred in the portion...

Cal. Supreme Court Overturns Death Sentence

Posted on July 31, 2007
In a rare capital habeas victory, the California Supreme Court unanimously reversed a jury's death sentence and ordered a new penalty hearing based on new evidence that a third party actually committed the murders in question. According to the Court,...

Firearm Sentence Enhancements Not Subject To Prohibition Against Multiple Punishment

Posted on July 31, 2007
Accoridng to California Penal Code section 654 (PC 654), an act that is made punishable in different ways by different provisions of the Penal Code may be punished under either provision but not both. The ban on multiple punishment applies...

Life Sentence for 0.03 grams of Meth

Posted on July 13, 2007
Yesterday, Marin Superior Court Judge Stephen Graham imposed a 25-to-life sentence for simple possession of 0.03 grams of methamphetamine under California?s Three Strikes law. (People v. Foroutan, No. 114626A.) The defendant has never committed a crime of violence and his...

Retroactive Application of New Rule of Evidence Does Not Violate Ex Post Facto Clause

Posted on July 03, 2007
The Ninth Circuit held today that retroactive application of California Evidence Code Sec. 1108, which permits introduction of evidence prior sexual misconduct, does not violate the Ex Post Facto Clause. (Schroeder v. Tilton, No. 06-15391 (Wallace, Chudahy, McKeown)) A California...

Another Unusual Habeas Decision from the Ninth Circuit

Posted on May 31, 2007
In a per curiam opinion, the court affirmed a grant of habeas to a California prisoner convicted of murder in 1992. (Pulido v. Chrones, No. 05-15916 (Goodwin, O?Scannlain, Thomas)) The issue is the standard of harmless error review applied to...

Conflict of Interest Claims Do Not Apply to Appellate Counsel

Posted on May 23, 2007
The Ninth Circuit held that, under federal habeas review, conflict of interest claims do not apply to appellate counsel. Foote v. Del Papa, No. 06-15094 (Wallace, Thomas, Ezra). The court reasoned that there is no ?clearly established? law on the...

New and Improved Execution Protocol

Posted on May 16, 2007
From today's L.A. Times: "Seeking to end judge's ban on executions, officials propose 'pain-free' method." Click here for the story.

Supreme Court Reverses Ninth Circuit in Capital Case (Again)

Posted on May 14, 2007
The U.S. Supreme Court reversed the Ninth Circuit in an Arizona death penalty case today. Schriro v. Landrigan, No. 05-1575. Writing for a five-member majority, Justice Thomas ruled that the defendant instructed his attorney not to present mitigating evidence at...

Ninth Circuit Reverses Arizona Death Sentence (Again)

Posted on May 12, 2007
For the second time in this case, a Ninth Circuit panel granted habeas relief and reversed the capital sentence of an Arizona man on death row since 1982. Lambright v. Schriro, No. 04-99010 (Ferguson, Reinhardt, Thompson). The three-judge panel issued...

Ninth Circuit Upholds Three Strikes Sentence for Petty Theft

Posted on April 30, 2007
On Friday, the Ninth Circuit upheld a 25-to-life sentence imposed under California?s Three Strikes law on an 82 year-old defendant convicted of stealing $114 of tools from Home Depot. Nunes v. Ramirez-Palmer, 06-16100 (Gould, Smith, Covello). The Court rejected Nunes'...

AEDPA is 11 Years Old

Posted on April 24, 2007
AEDPA was effective on April 24, 1996, 11 years ago today.

Cal. Supreme Court Upholds Trial Court Finding Of Mental Retardation In Capital Case

Posted on April 12, 2007
In a unanimous opinion, the California Supreme Court today upheld a trial court's finding that a capital defendant was mentally retarded and therefore categorically excluded from the death penalty under Atkins. California Penal Code section 1376 defines "mentally retarded" as...