Busy Monday in the Ninth.
First, in United States v. Zapien, --- F.3d ---, No. 14-10224 (9th Cir. 2017), the Court affirmed the district court’s denial of the
defendant’s motion to suppress his confession.
The defendant invoked his right to counsel after agents read him his Miranda rights. Then, agents started asking routine booking questions. While answering those biographical questions, the defendant volunteered that he wanted to make a statement. Agents again read him his rights, and the defendant confirmed he wanted to make a statement without counsel.
The Ninth determined, "the booking
exception can apply to questioning even after a defendant
has invoked his right to counsel." And because the questions were truly biographical and the defendant reinitiated on his own, there was no Miranda violation.
Moving on, in United States v. Ochoa, --- F.3d ---, No. 15-10354 (9th Cir. 2017), the Court granted a petition for panel rehearing, reversed itself, and vacated the defendant's 1326 convictions.
The decision itself is straightforward under Ninth Circuit law. The defendant was an LPR deported for a purported aggravated felony -- conspiracy to export defense articles without a license in
violation of 18 U.S.C. § 371 and 22 U.S.C. § 2778.
On appeal from his later 1326 conviction, the Court agreed that, by criminalizing unlicensed exports
of a broad range of munitions, § 2278 sweeps more broadly
than the generic federal aggravated felony or firearms
offenses. The panel further held that § 2278 is not divisible, and thus it did not proceed to the modified categorical approach. As a result, the conviction did not qualify as an aggravated felony, and could not support the subsequent 1326 conviction.
The more interesting part of the decision is Judge Graber's concurrence, joined by the other panel members, calling for en banc review of the Ninth's 1326(d) jurisprudence. The concurrence argues that Ninth Circuit law on 1326(d) challenges has strayed from the statutory requirements:
By permitting collateral legal challenges to an IJ’s removability determination in the way that we do, we retroactively label erroneous-only-in-hindsight (but unappealed) categorical determinations as “fundamentally unfair,” and as satisfying all three requirements of § 1326(d). Our precedent has the effect of nullifying the procedural requirements of § 1326(d)(1) and (2) and creating in their place a new, substantive right to retroactive de novo review, thereby undermining the finality interests the statute was designed to protect. These anomalies call for en banc consideration to bring our jurisprudence in line with the statute and the other circuits.
Finally, in Hall v. Haws, --- F.3d ---, No. 14-56159 (9th Cir. 2017), a divided panel affirmed the district court's grant of habeas relief in a California murder case.
This case is out of the S.D. Ca. It followed on Sherrors v. Woodford, 425 F. App’x 617
(9th Cir. 2011), which granted the habeas petition of the co-defendant.
The issue on the merits is about California Jury
Instruction Criminal 2.15, which allowed the jury to infer guilt of murder from evidence that the defendants were in
possession of recently stolen property plus slight
corroborating evidence. The Court found the instruction was constitutionally erroneous and prejudicial.
The case also presented substantial procedural hurdles, because the petitioner essentially abandoned his petition based on the mistaken view he had joined in his co-defendant's petition. If you have a case where you are litigating a motion to reopen habeas proceedings under Fed. R. Civ. P. 60(b). This decision is a must read.
Congrats to Holly Sullivan and Robert Rexrode!
