Nevada Appellate Lawyer & Attorney : Tami D. Cowden : Nevada Supreme Court, Ninth Circuit Court of Appeals

In addition to U.S. v. Curtin, discussed in the previous post, the Ninth Court issued the following opinions yesterday:

In Gama Puga v. Chertoff, the Ninth Circuit dismissed the petition for habeas brought by an alien who had been removed. The petitioner claimed for the first time in his petition he had received ineffective assistance of counsel with respect to his asylum application. Applying the theory of prudential exhaustion, the Court dismissed by applying the theory for failure to exhaust administrative remedies. Allowing a claim of ineffective assistance of counsel to be raised for the first time in a petition for judicial review would encourage the bypass of administrative scheme.

In U.S. v. Dang, the Ninth Circuit held that the Department of Homeland Security’s regulation requiring a determination that good moral character be assessed in naturalization proceedings is neither unconstitutional nor ultra vires. 

In U.S. v. Jeremiah, the Ninth Circuit upheld the revocation of supervised release. The Court rejected the defendant’s claims that his arrest was invalid, that he was denied a preliminary hearing, that there was insufficient evidence to revoke his supervise release and that the conditions imposed upon his new sentence of supervised release were improper.

• Send To A Friend
• Print This Article
• Comments
• Trackbacks

In Foote v. Del Papa,  the Ninth Circuit affirmed Nevada’s Federal District Court Judge Jones’s decision denying the petition for habeas relief.    The defendant had filed a lawsuit against his trial counsel, leading to the withdrawal of that attorney, and appointment of private counsel.  That lawsuit had been dismissed by the time the defendant was convicted and sentenced, whereupon the public defender was appointed to represent him on appeal. The defendant sought habeas relief, stating that a conflict of interest had existed with his appellate counsel The Court held that trial counsel’s irreconcilable conflict arising from the since dismissed lawsuit did not create an irreconcilable conflict with a appellate public defender.

• Send To A Friend
• Print This Article
• Comments
• Trackbacks

In Schriro v. Landrigan, the U.S. Supreme Court held that the district court did not abuse its discretion in denying an evidentiary hearing of the defendant’s claim he had received ineffective assistance of counsel in the penalty phase of his trial.

The record reflected that Landrigan interrupted attempts to present mitigating evidence, and asked his wife and mother not to testify. The Ninth Circuit had held, en banc, that these instructions during the penalty phase could not excuse a failure to investigate mitigation prior to trial.

The Supreme Court, with Thomas authoring the opinion, held that Landrigan’s instructions against presenting mitigating evidence prevented any prejudice arising from a failure to investigate. The Ninth Circuit’s reasoning that the record did not establish that  Landrigan’s instruction that no mitigating evidence be presented was “informed and knowing” was rejected as contradicted by the record, although Thomas also noted that the Supreme Court had never imposed an “informed and knowing” standard upon a defendant’s decision to present evidence.  Roberts, Scalia, Kennedy and Alito joined in the opinion.

Stevens drafted the dissent, joined by the remainder of the court. The dissent noted that there has never been disagreement that defense counsel’s failure to obtain thorough psychiatric review was below the standard of representation. Stevens explains that the failure of counsel to investigate mitigation meant that Landrigan did not learn of his psychological condition until year later, even though he may have known of individual facts, such his mother’s use of alcohol during pregnancy, her subsequent abandonment of him, and the childhood mistreatment his suffered.  

• Send To A Friend
• Print This Article
• Comments
• Trackbacks