Untitled

The Federal Tatler ©

by John Lanahan

No. 202: The more things change . . .: US v. Paul Davis

   The Supreme Court is still dormant, so what’s left but . . . a war story.  This one, however, is more a war epic, maybe a Bildungsroman that exposes much of what is wrong with what we euphemistically call the “Criminal Justice System.” It’s about my client Paul Davis, who was arrested in 1992 while traveling with three other African American men, all United States citizens, in a car going from San Diego to Riverside. The car was stopped at the Temecula checkpoint that  the Supreme Court has held does not violate the Fourth Amendment in order to monitor illegal immigration, and referred the car to secondary inspection (surprise). The Ninth Circuit had held by then that a referral to secondary inspection did not require reasonable suspicion. The men were told to get out of the car and one of them was seen tossing a gun underneath it. 77 grams (less than three ounces) of marijuana, packaged in small baggies, was found in the car as well as some clothing that had a receipt made out to Paul in one of the pockets. 

    Paul had the worst record of the bunch and was charged with possession of the firearm by a felon.  Because he had three prior robbery convictions, he was charged with the federal crime du jour of the 1990's, being an Armed Career Criminal (ACCA) under 18 U.S.C. 924(e).  This statute increased the sentencing range for felon is possession of a firearm from a range of zero to ten years, to fifteen years to life. The United States Attorney brought a number of these cases in this district in the early 90's, spearheaded by then AUSA (now Judge) Larry Burns as a means of clearing the street of dangerous criminals. Not surprisingly, a disproportionate number of African Americans and Hispanics were charged with this particular crime. In Paul’s case, there was an additional charge that added five more years for use and carrying the same firearm during the course of a drug trafficking offense, based upon the marijuana found in the car. The quantity of marijuana made any sentence based upon actual possession of it with intent to distribute low; but the firearm charge added five years regardless of the type or quantity of the drug.  In fact, Paul was not even charged with the underlying drug offense, only with  possessing the gun during the course of an uncharged drug offense (the Ninth Circuit had ruled that was OK, too). 

     Paul went to trial before my favorite judge of all time, John Rhoades, and was represented by David Cohen when he was with Federal Defenders of San Diego. Paul was convicted, and David filed a motion for new trial attacking the use of a DEA agent as an expert that 77 grams was a distributable amount of marijuana, but that was denied.  He also attacked the use of one of the prior robberies to increase the sentence as an armed career criminal, arguing that because that one of the priors had resulted in a commitment to the California Youth Authority, it should not be used to make him an Armed Career Criminal. That, too, was denied and Paul  was sentenced to 322 months in prison for possession of one firearm: 262 months based upon the Armed Career Criminal Guidelines, and another five years for possession of the same gun during the uncharged “drug trafficking” offense of possession of 77 grams of marijuana with the intent to distribute.  

     This did not sit well with Paul, who was not shy in filing post-conviction motions.  He filed the predictable petition for writ of habeas corpus alleging that David, who had since moved to San Francisco, had been ineffective (he was not). That’s how I got involved because Judge Rhoades liked to appoint me on habeas cases. I thought David did as well as he could given how difficult these cases are to win (here’s the felon, here’s the gun, so go convict). I did see another issue that might help given the Supreme Court’s intervening decision in Apprendi v. New Jersey, 530 U.S. 466 (2000), which held that facts that increase the statutory maximum sentence must be plead and proven to a jury. Only one of the prior convictions had been alleged to the jury. ACCA certainly did increase the statutory maximum, so I argued that the sentence of 262 months had to be reduced to no more than 120 months, the maximum for felon in possession of a firearm, because the jury had made no findings on what I argued were the elements of the Armed Career Criminal Act. It sounded good, but I lost because Judge Rhoades found that even if the prior convictions were elements of a new crime and not facts used to aggravate the sentence of felon in possession (Apprendi specially permitted the use of priors to aggravate a sentence without any finding by jury) the Supreme Court had not made that decision retroactive and therefore I could not use a new case to remedy on old wrong. I appealed, lost, and Paul ended up serving all 322 months of that sentence.

     While that was going, the issue of mass incarceration, particularly of men of color, had finally become so egregious and, more cogently, expensive that something had to be done about it. The change came from the top – the very top, the United States Supreme Court. First came Descamps v United States, ___U.S.___, 133 S.Ct. 2276, in June, 2013, where the Court examined the use of state prior convictions to increase a sentence under ACCA, and held that burglary under California law could never being used as a predicate prior to increase the ten year maximum sentence for felon in possession. The Ninth Circuit followed that approach in United States v. Dixon, 805 F.3d 1193 (9th Cir. 2015), and held that robbery under California law could also not used to increase a sentence under ACCA. Then came Johnson v. United States, ___U.S.___, 135 S.Ct. 3553, in June, 2015, that found another section of ACCA violated Due Process because it was void for vagueness. At this point, the Supreme Court had drilled the statute so full of holes that it could never be used to impose a sentence like the one Paul received.

     In August, 2015, after Johnson had been decided, Paul was released from prison, having been in custody since 1992. His prison term was followed by five years of supervised release, similar to probation or parole. He wasn’t amenable to supervision, and eventually the probation officer applied to Judge Marilyn Huff, who had taken the case over because Judge Rhoades had died eight years before. Probation wanted her to issue a warrant for his arrest right before Christmas, which she refused; but she ordered him to come to court after the holidays. I got reappointed to represent him. He didn’t want to deal with anyone from the courts, including me. Eventually, I got his attention and convinced him to come to court. It seemed to me grossly unfair to continue a sentence that under current law could be no more than 180 months, 142 months less than the time he had already served. So it occurred to me to move to vacate the ACCA sentence of 262 months, given the intervening decisions in Descamps, Johnson, and Dixon. That converted what would be an otherwise dreary proceeding on why his supervised release should not be revoked, that would result in him serving more prison time, into a habeas corpus petition to vacate a sentence that now could not longer be imposed. Judge Huff agreed, and she kept him out so he could continue working at Walmart, a job he had found on his own. She had him report to me instead of probation. I left him alone.

     I filed the motion, Judge Huff ordered the Government to response, then denied it because Johnson was not held to be retroactive and could not apply to correct an ACCA sentence that had become final. Then the Supreme Court held, in Welch v. United States, ___U.S.__, 136 S.Ct. 1257 (2016), that Johnson was retroactive, so I filed an amended petition. That petition, however, was a successive habeas petition because I had filed another one years earlier raising the Apprendi issue, so Judge Huff ruled I had to get permission from the Ninth Circuit to file a new one. In the meantime, Paul had lost his job at Walmart because probation kept asking for warrants to have him report and he would spend a few days in jail before he was released after coming to court, and the absences took their toll. 

     There had to be another way to end this madness. Although Judge Huff kept reiterating in court that the sentence he got in 1992 was valid under the law as it existed then, she was clearly troubled by someone coming before her who, for reasons later found by the Supreme Court, could now get no more than fifteen years. She kept bringing him back to court  to see how he was doing and whether he was getting into trouble.  He wasn’t, just ran out of excuses for missing work because he was getting locked up.  In all of this made me come up with plan B. Judge Huff could, after a year, terminate his supervised release and get probation out of his life, so I argued that rather than have me file a motion in the Ninth Circuit, get permission to file a successive habeas petition, and then file the petition before her and brief it, charging the courts for months and possibly years of work, she could terminate supervise release and end this last vestige of a grossly disproportionate sentence, thereby and rendering the habeas moot. 

     Guess which one won.  On August 1st, she ordered, over the Government’s objection, that supervised release would terminate on August 3rd, a year from his release date. His sentence was over.

The Federal Tatler ©

by John Lanahan

No. 199: The Retroactive revolution: Welch v. United States

The Federal Tatler ©

by John Lanahan

No. 198:  Revising the past: Montgomery v. Louisiana

   On occasion, while sitting in court as one of our august local jurists, one in particular, bloviates at a sentencing hearing, this JFP (jaded federal practitioner) muses on areas the Supreme Court may choose to examine, one of which is Sex Offender Registration.  In the past few years the Court has examined the Federal Sex Offender Registration and Notification Act (SORNA), in United States v. Juvenile Male, 560 U.S. 558 (2010) (no, that does not deal with certain federal jurists or practitioners); the same case back again at 131 S.Ct. 2860 (2011); Carr v. United States, 560 U.S. 438 (2010); and United States v. Kebodeaux, ___U.S.___, 133 S.Ct. 2496 (2013).  All of these deal in some way with whether SORNA violates ex post facto but managed to avoid the issue either because of mootness, as in the second Juvenile Male case; or the existence of a prior military sex offender registration requirement in Kebodeaux that made it unnecessary to decide if SORNA violated ex post facto.  The Court did hold in Carr, however, that a person could not be prosecuted for failing to register as a sex offender under SORNA prior to the passage of the act.  

    This somewhat rambling introductory paragraph (doubtless from the fallout of the  aforementioned bloviating jurist) is a lead to Grady v. North Carolina, ___U.S.___, 135 S.Ct. 1368 (2014), decided last March.  The case did not get much play and is a brief per curiam decision, but its holding is significant and rejects the claim that a non-consensual monitoring device used to track sex offenders does not implicate the Fourth Amendment, because sex offender registration statutes are civil, not criminal, in nature.

   Torrey Dale Grady was convicted to two sex offenses under North Carolina law, the latest in 2006, and ordered to wear a device that was tracked by satellite to show his whereabouts.  He did not contest that he was a sex offender under the North Carolina statute, but argued the requirement he wear the device at all times violated his Fourth Amendment right to be free from unreasonable searches and seizures.  The state trial court denied the motion and Grady appealed, relying upon United States v. Jones, 565 U.S.___, 132 S.Ct. 945 (2012).  The state court of appeal, relying upon State v. Jones (no relation to the federal case) rejected the claim because it found the sex offender monitoring statute was civil, and therefore the Fourth Amendment did not apply.  The State Supreme Court denied review.

   The United States Supreme Court, in a unanimous per curiam decision, holds the state court erred in finding that non-consensual satellite monitoring by an attachment to the body  does not implicate the Fourth Amendment.  It relies upon US v. Jones and Florida v. Jardines, 569 U.S. ___, 133 S.Ct. 1409 (2013), which held the Fourth Amendment applies to certain protected areas such as a vehicle (Jones) or a front porch (Jardines), to find that a person’s body definitely falls within that protected area.  The Court also rejects that the denomination of Sex Offender statutes as civil in nature removes them from the protection of the Fourth Amendment, which applies beyond criminal investigations to administrative searches, citing Ontario v. Quon, 560 U.S. 746 (2010); and Camera v. Municipal Court of the County and City of San Francisco, 387 U.S. 523 (1967).  The Court also rejects the state’s claim that Grady failed to show what information the satellite tracking device would gather, by citing the statute which directs the device to track person’s location at a certain time and whether his location violates the terms of his release.  It remands the case to the state to determine the reasonableness of non-consensual monitoring by an attached device.

   This may not seem to be much, but I believe, or maybe fantasize, that the Court has increasing difficulty with Sex Offender Registration statutes and is chipping away at the criminal/civil distinction that had been relied upon by state courts, such as the California Supreme Court  in People v. Castellanos, 21 Cal.4th 785 (1999), which found that ex post facto does not apply to California Penal Code § 290 because sex offender registration is civil, not criminal. Grady is yet another instance of gradually reigning in such statutes, until maybe one day, as the Court did in Apprendi v. New Jersey, 530 U.S. 466 (2000), it will look upon their lifetime restriction of liberty like a criminal statute and apply the rigors of the constitution to them.

     So far, this has not be an earth shaking term, but an opinion came out last month that shows why the early surrealists went to the law for much of their inspiration.  The case is Yates v. United States, ___U.S.___, 132 L.Ed.2d 64 (13-7451, 2/25/15), and involves the interpretation of 18 U.S.C. § 1519, a portion of the Sarbanes-Oxley Act of 2002.  The case arose when a commercial fisher was found catching and keeping undersized red grouper.  If the fish was less than 20", it had to be thrown back under an environmental regulation. John Yates, the fisher, was found to have fish less than 20" but not less than 18¾".  A search of the entire catch revealed 72 fish of less than 20".  Yates was ordered to put the undersized fish in a separate crate and preserve them.  Four days later, the boat docked, and the crates had fish, less than 20", but slightly longer the fish that had been originally found.  The crew admitted that Yates had told them to dump the undersized fish that had been ordered preserved in the crates and fill them with fish that had already been caught.  

      Yates was charged thirty-two months later (after the size of the fish one could keep had been reduced to from 20" to 18") with a violation of 18 U.S.C. §§ 1519 and 2232(a).  He was convicted of both, the latter (section 2232(a)) a felony that prohibited the destruction or removal of property to prevent its seizure, the other (section 1519) a felony carrying a twenty year statutory maximum that made it a crime to alter, destroy,  mutilate, conceal, cover up, falsify, or  make a false entry in any record, document, or  tangible object with the intent to impede, obstruct, or influence  the investigation or proper administration of any matter within the  jurisdiction of any department or agency of the  United States.  At trial, the Government claimed the fish were “tangible objects” the preservation of which was necessary to show that Yates was catching undersized fish. Yates’s defense was that section 1519 was meant to prevent the destruction of documents and records and tangible objects used for their preservation.  He was convicted of both felonies and sentenced  to 30 days in jail and placed in three years probation.  On appeal, the Eleventh Circuit rejected his argument that the Sarbanes-Oxley Act of 2002 was intended to preserve financial records and that “tangible objects” within that section were limited to devices such as computer drives and discs that preserved those documents and records.

     A plurality of the Supreme Court, in an opinion by Justice Ginsburg, joined by the Chief Justice and Justices Breyer and Sotomayor, reverses.  They find that Sarbanes-Oxley was passed in 2002 in reaction to the financial fraud arising from the collapse of Enron and the destruction of documents by Arthur Anderson, its accounting firm, and because of that, 18 U.S.C. § 1519 must reviewed in that context.  To find a fish was a “tangible object” within the meaning of that section would cut Sarbanes-Oxley from its “financial fraud moorings.”  Instead, that section should be read to prohibit the destruction of documents and tangible object such as computers, servers and other media that preserve the records.  The plurality acknowledges that a fish falls within the dictionary definition of a “tangible object” and that the statute is not ambiguous as to the use of that term.  Despite that, the opinion finds that the definition of is not limited to its literal meaning and must be interpreted within the context in which the term is used.  

     Justice Ginsburg rejects the Government’s claim that “tangible objects” should be the same as when the words are used in Federal Rule 16 of the Rules Criminal Procedure, which would include physical evidence such fish, because the context of Rule 16 deals with the Government’s duty to preserve and produce evidence in any criminal case and was intended to prohibit the spoliation (destruction or contamination) of any evidence, favorable to either party, in a criminal prosecution.  The sections of Sarbanes-Oxley preceding section 1519, however, are limited to documentary evidence, and the opinion applies ejusdem generis to find that the definition of tangible objects is limited by the use of preceding terms within the same piece of legislation.  It also applies yet another Latin maxim, noscitur sociis (known by the company it keeps) to find that because section 1519 is surrounded in the federal criminal code by other sections prohibiting the destruction of records such as bankruptcy or medical records, Congress intended to limit the scope of section 1519 to prohibit the destruction of documents and records and tangible objects that preserve and store documents and records. Finally, the plurality uses the rule of lenity, even though the term “tangible objects” does not appear to be ambiguous, because a more inclusive definition of “tangible objects” would expose a person to a statute carrying a possible 20 year prison term for what could be destruction of insignificant objects.  

     Justice Alito concurs, using a deconstructionist approach from the list of nouns, verbs and the title of the section to support the plurality’s limited definition of “tangible objects.” The term “tangible object” first occurs in the same sentence as “record” and “document.”  Although he finds the plurality  imperfectly applies ejusdem generis, because “records” and “documents” are general terms independent and not purely a statutory definition, the context in which they occur makes it difficult to find that “tangible object” would not be related to documents and records, and to make a leap to include fish or a crocodile is bizarre.  Next, the verbs used in the act, which are “alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in” all make sense when applied to documents and records, but others such as “falsifies” make no sense when applied to fish.  Lastly the title assigned to section 1519, which is “Destruction, alteration, or falsification of  records  in  Federal investigations and bankruptcy,” makes it clear that Congress intended the scope of tangible objects to be limited to those involving the storage and preservation of documents and records.

     The dissent by Justice Kagan is an interesting mix.  She is joined by Justices Scalia, Kennedy, and Thomas.  She finds that “tangible objects” is a broad but clear definition, and is consistently applied broadly throughout the federal criminal code to cover physical objects without any limitation. She also finds the use of the phrase “any tangible object” removes the limitation placed on it by the plurality.  She also finds nothing within the legislation or its history to limit what is a clear but broad term to include the destruction of any physical evidence. Finally she finds the plurality’s use of the rule of lenity to be misplaced because that rule should only be applied when there is doubt from the language of a statute whether Congress intended a certain act to be criminal.  Here it was clear the intent of the statute was to prevent the destruction of evidence, an act that has been prohibited in many statutes by Congress.  She also characterizes Justice Alito’s concurrence as  “an odd game of Mad Libs” which is unnecessary because the definition of “tangible objects” is clear that any piece of physical evidence should not be destroyed.  

    The Federal Tatler ©         No. 184: A modest proposal – why not make Booker retroactive?     It’s St. Patrick’s Day, and I’ve indulged in enough irony, common among those of us whose ancestors fled Ireland, where politics was often a way to make new enemies and “reform” meant poverty, displacement, anarchy, and famine.  Some of that has seeped into the politics of this country, where “reform” becomes a basis for continued disagreement and inevitable inaction.  One of the current “reform” topics on the burner is the alarmingly high and permanent prison population (as if no one noticed beforehand), with the U.S. way in the lead over such bastions of liberty and due process as Russia and China in incarceration rates.  I don’t credit the current interest in reducing prison sentences to any increase in altruism, but rather a systemic variation of the “how much justice can you afford” adage, with Congress and the Department of Justice viewing it as “how much punishment can we pay for.” 

    Regardless of the motivation, the time is ripe for things to move back to some semblance of sanity, and there are bills pending in Congress that would halve the mandatory minimum sentences for drug offenses and allow judges more ways to go below the mandatory minimum under the catchy “The Smarter Sentencing Act,” and give low-risk inmates a chance to earn greater good time while in prison under the more leaden sounding  “Recidivism Reduction and Public Safety.”  There is also a pending policy by DOJ to offer a further Guideline reduction of two offense levels that may become standard in plea agreements. 

    I want to float another idea: why not make United States v. Booker, 543 U.S. 220 (2005), retroactive?  For the noncognoscenti, the United States Supreme Court in Booker salvaged the Sentencing Guidelines from continuing to violate the Sixth Amendment, by making them advisory only, contrary to 18 U.S.C. § 3553(a)(4), a subsection of the primary sentencing statute for federal crimes, which had made the Guidelines mandatory.  The Supreme Court stated that Booker was a new rule that would apply in all future sentencings and to those sentences already imposed that were still on direct appeal.  543 U.S. at 268.  The Court has yet to rule on whether Booker could be expanded to cases where the sentence had been imposed and was no longer on direct appeal; but every federal circuit has held Booker was a procedural, not substantive change in the law and therefore could not be used to reduce sentences that were imposed when the federal courts thought the sentences were mandatory unless those sentences were still on direct appeal.  See United States v. Cruz, 423 F.3d 1119, 1120 (9th Cir. 2005). 

    This created a clearly unfair distinction between those sentenced after Booker and those who were sentenced under a law the Supreme Court found unconstitutional.  The reason for limiting Booker was the fear of by a flood of habeas petitions filed in every federal case where sentence was imposed between 1988 and 2005, when the federal courts started imposing sentences under the Guidelines and the decision in Booker.  There would have been  a sizable group of defendants who were sentenced prior to Booker and who got humungeous sentences under the Guidelines, in excess of any mandatory minimum five or ten year prison sentence, when the federal courts believed the Guidelines were mandatory, often over the protestations by the judge at sentencing, who felt compelled to follow them even if s/he thought they were unfair.  One local San Diego judge, J. Lawrence Irving, resigned over them.

    Now, however, nine years later, the “floodgates” of resentencing petitions if Booker is made retroactive has subsided to a comparative trickle, because the majority of those who were sentenced, albeit unfairly, pre-Booker have served their prison sentences; or if they are still on supervised release (the federal equivalent of parole), they are already under the continuing jurisdiction of the district court to modify or terminate supervised release. 

    That leaves those who were sentenced to ten years or more prior to 2005, many of whom are ageing and probably taxing the resources of the Bureau of Prisons, which must  provide geriatric medical care for long term prisoners.  The systemic reasons for not making Booker retroactive are now outweighed by the systemic population pressures on the Bureau of Prisons (aside from the seemingly inconsequential fact that many are serving sentences that everyone knows are unconstitutional).

    The question is how to implement it.  It’s highly doubtful the Supreme Court would revisit Booker and for purely policy reasons make it retroactive; and even if it did, it would take the Court at least two years to get there.  Congress could make Booker retroactive by amending 18 U.S.C. § 3582 and add it as a basis for resentencing, but that would have deal with the dysfunctional malaise of Washington.  My suggestion is that the Sentencing Commission, which implements the Sentencing  Guidelines, make it retroactive, under U.S.S.G. § 1B1.10, so those still serving prison sentences that were final prior to the date Booker was decided can come back to court for resentencing.  If the Commission presents Congress with that retroactive amendment already in place, it will more likely get passed with less debate, at which point under the current version 18 U.S.C. § 3582(c), the inmate could move to be resentenced have the sentence reduced.  The case would go before the judge who imposed the sentence (assuming s/he is still sitting) or be reassigned to whomever would get a motion for a retroactive resentencing under more favorable guidelines.  There would be no guarantee the judge would impose a different sentence; but in those cases where the judge felt compelled to impose a sentenced s/he believed was unfair, it would give a chance to undo a wrong that needs to be corrected, and would reduce the Bureau of Prisons of its most burdensome population.

    The Federal Tatler ©     No. 182: A Brady birthday present: Amado v. Gonzalez     It’s that time of the year when it’s hard to write a Tatler because the Supreme Court has yet to issue anything very significant.  There was yet another decision this month, Burt v. Titlow, ___U.S.___, (12-414, 11/5/13), in which Justice Alito spanks the Court’s second favorite whipping boy, the Sixth Circuit (after the Ninth) for not being “doubly deferential” to the state court by granting a federal habeas corpus petition based upon ineffective assistance of trial counsel.  It’s cases like this that make this JFP even more jaded and despairing that any federal habeas corpus petition can win.  Into this bleak autumnal landscape, however, there appeared a ray of hope.  Last month, the Ninth Circuit reversed the denial of a federal habeas petition I filed in the dread federal court for the Central District of California (fondly referred to as “the temple of doom” by local practitioners) in Amado v. Gonzalez, __F.3d___ (11-56420, 10/30/13).  I’m not one for war stories, but given I can’t think of anything else to write about, and the case is a victory on what seems to be the last remaining ground for meaningful habeas corpus review, a violation of Brady v. Maryland, 373 U.S. 83 (1963), it seems a worthy, if possibly self-aggrandizing subject for the Tatler. 

    Every criminal practitioner seems to know Brady, but prosecutors and courts keep getting it wrong.  This year is the fiftieth anniversary of that bedrock decision by the United States Supreme Court.  The case arose from a criminal prosecution by Maryland in which Brady conceded he was guilty of felony murder based upon robbery but he was not the actual killer as a reason for not receiving a death sentence.  His lawyer requested reviewing the statements of an accomplice, but the statement in which the accomplice admitted he was the shooter  was never turned over.  Brady was convicted and sentenced to death.  The Supreme Court held, in a six to three decision written by Justice Douglas, the Due Process Clause of the Fourteenth Amendment required that all exculpatory evidence relating to either guilt or a possible sentence must be turned over, regardless of the good or bad faith by the prosecutor.  373 U.S. at 85.

    Brady has been expanded, first by United States v. Bagley, 473 U.S. 667 (1985), to hold that Brady requires the prosecution must produce evidence that would either affirmatively exculpate a defendant or impeach the prosecution’s evidence or witnesses.  Kyles v. Whitley, 514 U.S, 419 (1995), expanded the prosecutions duty to disclose any material evidence that would aid the defense.  Although the opinion by Justice Souter did not adopt an “open file” policy, it put the onus on the prosecution know of and disclose any evidence it either had or could obtain that would be raise a reasonable probability that it would aid a defendant against a criminal charge.  514 U.S. at 437.

    This came into play in Amado where the charge was a murder under the natural and probable consequences theory brought in state court in Los Angeles.  Randall Amado, my client, was charged with two others, Robert Johnson and Wilbert Pugh, with the murder of a school girl who was riding home on a city bus, and the attempted murder of another school girl who was injured, when Johnson got on a city bus carrying rival gang members and shot it up.  Johnson and Pugh had been seen the night before the plan of getting on the bus and shooting at rival gang members, and both were seen at the bus stop and coming back from it after the shooting.  Randall Amado was seen going toward the bus stop on the day of the shooting, as was a large group of on lookers, and leaving after the bus had been shot up.  One witness, Warren Hardy, also known as Warren Collins, testified he could not identify Randall as being there; but a prior statement he gave the police, stating he saw Randall going to the bus stop with a gun, and that he heard him bragging about the shooting the next night, was admitted as substantive evidence under California Evidence Code § 1235. 

    Prior to trial, the prosecution had moved to restrict information about potential witnesses, including Hardy, such as addresses and phone numbers, because of concerns over concerns gang retaliation against witnesses.  That request was granted and the prosecution was made the gate keeper of information.  It turns out Hardy was a member of the rival gang to that attributed to Randall, and that Hardy was on probation for robbery at the time he gave the statement that incriminated Randall to the police.  That was not revealed to the defense until after trial after Hardy was interviewed by the defense.  Randall brought a motion for new trial because he had not been told of Hardy’s gang affiliation or probationary status.  The trial court denied the motion, finding the prosecution should have turned over the information about Hardy, but the evidence was not material. 

     I got the direct appeal as an appointed counsel in 1999, and raised the Brady issue before the California Court of Appeal for the Second Appellate District, Division One.  That panel, which has since become much better for us, relied upon CA Penal Code § 1181(8) to found that the information material but affirmed the conviction because that Court found trial counsel failed to be diligent by not asking for it.  That was dead wrong on the law, because Brady and Kyles have no diligence requirement for the defense. 

    Because the state court decision was so clearly wrong, I wrote and filed a pro per federal habeas corpus petition for Randall in the federal court in Los Angeles.  In the summer of 2003, Magistrate Judge Eick recommended the petition be granted.  That same month I had won a state habeas corpus petition declaring a client convicted of a “one strike” sex offense under CA Penal Code § 667.61 factually innocent, so I felt the stars had aligned in my favor.  Little did I know that the district judge who would either adopt or reject the recommendation, Percy Anderson, a recent Bush appointee, would sit on the petition for eight years before finally denying it, only after the Los Angeles Daily Transcript, followed by the LA Times, did a story in his proclivity not to rule on petitions that the Magistrate had recommended relief be granted, thereby putting the cases in limbo where they could not be appealed.  I had tried during those eight years to enter an appearance as Randall’s lawyer, but the judge would not even rule on that.  So, when the petition was finally denied, in July, 2011, I could not file the notice of appeal electronically because I was not counsel or record, even though I had written everything.  The notice of appeal had to be filed manually in the giant user-unfriendly bureaucracy of the Central District, and I feared the notice would get lost or even intercepted, so that it would be filed past the filing deadline of thirty days and therefore could not be appealed.  I finally managed to speak to a live person in the clerk’s office, a truly Herculean task in the Central District, who found the notice and filed it on time.

    Judge Anderson denied a Certificate of Appealability, finding it was not even debatable I should get relief despite the recommendation of the Magistrate that relief be granted.  The Court of Appeals, in a rare move by Judge Stephen Reinhardt, summarily certified the Brady issue for appeal without my even asking, and I filed the opening brief.  The Attorney General’s response was massive, and when the reply was due I was in the middle of three trials and had no time to respond.  I despaired, but then the case was set for oral argument in January.  As I prepared for it, I kept writing the unfiled reply in my head, chagrined that of all cases this one needed it the most.  The morning of the oral argument in Pasadena, I went on last.  My panel was Circuit Judges William Fletcher, Judge Betty Fletcher’s son and a Clinton appointee; Johnnie Rawlinson, the former DA of Clark County Nevada, a Bush appointee; and Judge Alvin K. Hellerstein, a district court judge in Manhattan sitting on the Court by designation.  The argument was a blast.  It was clear Judge Hellerstein was in my corner, Judge Rawlinson clearly in my face.  At one point she (yes, Johnnie is a she) asked me what Supreme Court case I was relying upon, and I cited Kyles.  She pulled out her iPad, pulled up the case, and asked, “what page?” When I gave her the page number, and she said she couldn’t find it, and Judge Fletcher pointed out the language in the footnote.  I walked out feeling I had done as much as could be done.

    Nothing moves quickly in this case.  At one point I got a notice the mandate had issued, indicating the case has ben decided, but I hadn’t seen an opinion.  It turned out the Court issued it in the wrong case and recalled the mandate the same day.  After ten months, the panel reversed the district court two to one, in a decision written by Judge Hellerstein, that the petition should have been granted.  For you habeas geeks, the Court on its own decided that the Brady claim should be reviewed de novo, not under the deferential “objectively unreasonable” standard common in federal habeas cases, because the state court had reviewed the merits of the Brady claim under California Penal Code § 1181(8), which requires the defense to show due diligence and that it could not have found the evidence prior to trial, in this case the Brady information about Hardy.  Even though the California Court of Appeal found no Brady violation in a one page order, it premised its ruling on whether trial counsel was diligent in seeking what it found was material information about Hardy.  Because it failed to address the prosecutor’s duty to disclose material information under a Brady analysis, the majority of the panel reviewed the claim de novo and found a Brady violation.  It also held that even under the objectively unreasonable standard of review, the state court was wrong in (1) finding a due diligence requirement on the part of the defense when Brady has none and (2) failing to assess the prejudice arising from not presenting the impeachment evidence regarding Hardy.  Judge Rawlinson dissented, on the basis the claim was reviewable under the objectively unreasonable standard of AEDPA, and “the presumably fair minded district court judge” (!) found the state court decision was reasonable.