Last June, in Cuero v. Cate, 827 F.3d 879 (9th Cir. 2016), the Ninth Circuit reversed the district court’s denial of habeas relief. (Full disclosure, this is one of my cases.)
The case came out of California state court. In short, the client pleaded guilty in exchange for a promise of 14 years, 4 months. Post plea, but before sentencing, the state amended the charging document and Mr. Cuero received a sentence of 25 to life. (Yes, that really happened).
From my view, the habeas was a clear application of Santabello, and a majority of the panel agreed.
The State then filed for rehearing en banc, which we obviously opposed.
Today, the Court issued a lengthy published order denying the petition for rehearing (here). The order and dissent contain significant discussions of both California and Federal law on plea deals and the government's duty to fulfill its promises.
As Judge Wardlaw correctly notes: "The panel majority opinion speaks for itself. I
respectfully suggest that there is no need for the dissent’s “the
sky is falling” rhetoric. This is the rare case where the state
court’s decision was contrary to then-clearly established
Supreme Court law governing guilty pleas induced by
agreements with the prosecutor. It is no wonder that a majority of our active judges declined to rehear this simple
appeal en banc."
Hopefully, SCOTUS lets this be the final word.
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In other news, the Ninth Circuit decided an interesting forfeiture case today.
In United States v. Pollard, --- F.3d ---, Case No. 15-10246 (9th Cir. 2017), the Court upheld a criminal forfeiture order based on the defendant's aggravated
identity theft (1028A) conviction, because "[a]n essential element of
[the] aggravated identity theft plea was an admission that [the defendant] committed and aided and abetted bank fraud."
This stuff gets pretty confusing. But basically, under 28 U.S.C. § 2461(c), the government may seek criminal
forfeiture whenever civil forfeiture is available and the
defendant is found guilty of the offense. The statute, therefore, “make[s] criminal forfeiture available in every
case that the criminal forfeiture statute does not reach but for
which civil forfeiture is legally authorized.”
Although a violation of § 1028A, is not itself an enumerated
offense in either the civil or criminal forfeiture statutes, a conviction under 1028A requires the improper use of the identity in the course of committing certain predicate offenses. And some of those predicate offense, like bank fraud, qualify for civil forfeiture.
Thus, the Court held that, when a conviction for
aggravated identity theft is premised on a proven or admitted
violation of a predicate offense that is enumerated in the civil
forfeiture statute, then forfeiture is authorized.
And that was the situation before it. There is also some discussion of appellate waivers.
