POST CON RELIEF " UNCONSTITUTIONAL STATUTE " RETROACTIVITY AGGRAVATED FELONY " CRIME OF VIOLENCE " 16(b)
Welch v. United States, ___ U.S. ___, No. 15-6418 (Apr. 18, 2016) (Johnson v. United States, 135 S. Ct. 2551 (2015), applies retroactively to invalidate 16(b), no matter when the conviction occurred, because it is a substantive rule of criminal procedure, because it changed the substantive reach of the Armed Career Criminal Act, altering the range of conduct or the class of persons that the [Act] punishes.) (quoting Schriro v. Summerlin, 542 U.S. 348, 353 (2004)). Note: This decision has substantial implications for anyone involved in immigration work for clients with criminal histories. The ACCA residual clause, involved in Johnson, uses language that tracks the 16(b) definition of a crime of violence, a type of aggravated felony that frequently results in detention and removal of migrants through the nations immigration court system. Since Johnson was decided, the Fifth, Seventh, and Ninth Circuits have that the reasoning of Johnson holding unconstitutional the residual clause of the ACCA requires them to invalidate 18 U.S.C. 16(b), for the same reasons.

POST CON RELIEF " GROUNDS " INSUFFICIENCY OF EVIDENCE
Cavazos v. Smith, ___ U.S. ___ , 132 S.Ct. 2 (Oct. 31, 2011) (No. 10-1115) (per curiam) (The opinion of the Court in Jackson v. Virginia, 443 U. S. 307 (1979), makes clear that it is the responsibility of the jury--not the court--to decide what conclusions should be drawn from evidence admitted at trial. A reviewing court may set aside the jury's verdict on the ground of insufficient evidence only if no rational trier of fact could have agreed with the jury. What is more, a federal court may not overturn a state court decision rejecting a sufficiency of the evidence challenge simply because the federal court disagrees with the state court. The federal court instead may do so only if the state court decision was "objectively unreasonable."); citing Renico v. Lett, 559 U. S. ___, ___ (2010) (slip op., at 5) (internal quotation marks omitted).

POST-CON " GROUNDS " EVIDENCE " ADMISSIBILITY
Bullcoming v. New Mexico, ___ U.S. ___, 131 S.Ct. 2705 (Jun. 23, 2011) (Confrontation Clause does not permit the prosecution to introduce a forensic laboratory report containing a testimonial certification, made in order to prove a fact at a criminal trial, through the in-court testimony of an analyst who did not sign the certification or personally perform or observe the performance of the test reported in the certification; the only person who could be put on the stand to testify about a forensic lab report is the analyst who made the certification; the only exception is if the analyst is unavailable at trial, and the defense had an opportunity, pretrial, to cross-examine that particular analyst).

POST CON RELIEF " GROUNDS " FEDERAL LAW PREVENTS USE OF I-9 FORMS IN STATE CRIMINAL PROSECUTIONS
Chamber of Commerce of U.S. v. Whiting, ___ U.S. ___, 131 S.Ct. 1968, 2011 WL 2039365 (May 26, 2011) (8 U.S.C. 1324(b)(5) bars the use of the Form I-9 and its attachments in a state criminal proceeding).

POST CON RELIEF - GROUNDS - STATUTE UNCONSTITUTIONAL
United States v. Alvarez, ___ F.3d ___ (2010) (federal conviction for falsely verbally claiming to have received the Congressional Medal of Honor is reversed where the Stolen Valor Act lacked the elements that would make it analogous to the other restrictions on false speech previously held to be proscribable without constitutional problem, and thus the Act was not narrowly drawn to achieve a compelling governmental interest, and was unconstitutional).

POST-CON - GROUNDS - SPEEDY TRIAL ACT
Zedner v. United States, __ U.S. __ (Jun. 05, 2006) (defendant may not prospectively waive application of Speedy Trial Act; harmless-error review is not appropriate to this issue). http://laws.lp.findlaw.com/us/000/055992.html

POST CON RELIEF - PLEA - NO CONTEST - MOTION TO WITHDRAW - USE OF NO CONTEST PLEA AGAINST DEFENDANT IN CIVIL IMMIGRATION PROCEEDINGS
The difference between a plea of no contest, or nolo contendere, and a guilty plea is chiefly that the no contest plea may not be used against the defendant in civil proceedings, whereas the guilty plea can. There is no difference between the two pleas insofar as the criminal proceedings are concerned. Therefore, when a defendant is allowed to enter a no contest plea in criminal proceedings, s/he is typically informed that the plea may not be used against him or her in civil proceedings. Immigration proceedings are civil, not criminal, proceedings. In effect, the defendant is informed that the plea does not constitute an admission that may be used in civil immigration proceedings. If the plea is so used, in contradiction to the representation on which the plea was entered, the defendant can move to vacate the criminal conviction on the grounds that the plea was involuntary since it was based on a material misrepresentation as to its effects. In INS v. St. Cyr, 553 U.S. 289, 321-322 (2001), the Supreme Court acknowledged that a plea bargain involves benefits to the defendant, and held that Congress would not be presumed to have intended to deprive the defendant of a benefit (there, eligibility for INA 212(c) relief), on which s/he was entitled to rely at the time the plea was entered. It is fundamental that "a plea that is involuntary, unintelligent, or uninformed is an invalid plea." United States v. Garcia, 401 F.3d 1008 (9th Cir. 2005); citing, Brady v. United States, 397 U.S. 742, 748 (1969); see also, Fontaine v. United States, 411 U.S. 213 (1973); Boykin v. Alabama, 395 U.S. 238 (1969); McCarthy v. United States, 394 U.S. 459, 464-67 (1969). Thus a guilty plea that is obtained through "coercion, terror, inducements, [or] subtle or blatant threats" is involuntary and offensive to due process. Boykin, 395 U.S. at 243 [fn. omitted]; Machibroda v. United States, 368 U.S. 487 (1962); Sanchez v. United States, 50 F.3d 1448, 1454 (9th Cir. 1995). Even if a plea is entered with full knowledge of its direct consequences, it cannot stand if "induced by threats (or promises to discontinue improper harassment), misrepresentation (including unfulfilled or unfulfillable promises), or perhaps by promises that are by their nature improper as having no proper relationship to the prosecutors business . . . . " Brady v. United States, 397 U.S. at 755 (1969) [citation omitted]. It is established in federal law that the immigration effect of a guilty plea is a "collateral" and not a "direct" consequence of the plea. United States v. Russell, 686 F.2d 35, 38-39 (D.C. Cir. 1982), and cases cited therein. Thus defense counsels failure to advise the defendant that he or she will be deported is not "ineffective assistance of counsel," and the trial courts failure to do so does not render a plea involuntary. United States v. Fry, 322 F.3d 1198, 1200 (9th Cir. 2003); United States v. Gonzalez, 202 F.3d 20, 25-28 (1st Cir. 2000). Yet, as the quoted passage in Brady suggests, and as the federal courts have consistently held over the last three decades, this distinction between "direct" and "collateral" consequences loses all significance when the defendants plea results from affirmative misadvice about its immigration or other effects. See, e.g., United States v. Del Rosario, 902 F.2d 55, 59 (D.C. Cir. 1990); United States v. George, 869 F.2d 333, 337 (7th Cir. 1989); United States v. Sanclemente-Bejarano, 861 F.2d 206, 211 (9th Cir. 1988); Carter v. McCarthy, 806 F.2d 1373, 1376 (9th Cir. 1986), cert. denied, 484 U.S. 870, (1987); United States v. Campbell, 778 F.2d 764, 768-769 (11th Cir. 1985); Downs-Morgan v. United States, 765 F.2d 1534, 1541 (11th Cir. 1985); Strader v. Garrison, 611 F.2d 61, 64 (4th Cir. 1979); United States v. Santelises, 509 F.2d 703, 703-704 (2d Cir. 1975); United States v. Briscoe, 432 F.2d 1351, 1353-1354 (D.C. Cir. 1970); United States v. Khalaf, 116 F.Supp.2d 210 (D. Mass. 1999); United States v. Corona- Maldonado, 46 F.Supp.2d 1171, 1173 (D. Kan 1999); United States v. Mora-Gomez, 875 F. Supp. 1208, 1212 (E.D. Va. 1995); United States v. Nagaro-Garbin, 653 F.Supp. 586, 590 (E.D. Mich 1987), affd, 831 F.2d 296 (6th Cir. 1987); see also, Holmes v. United States, 876 F.2d 1545, 1549, n.5 (11th Cir., 1989), and cases cited therein [discussing the effect of misinformation regarding the "collateral consequence" of parole eligibility on the voluntariness of a plea]. As those and other cases demonstrate, a plea that results from actual misinformation provided to the defendant about its effects is not knowing and voluntary, and cannot be given force.      Applying these principles, the federal courts have consistently voided guilty pleas entered - as this one was - on the basis of affirmative misadvice regarding considerations of consequence to the defendant. For example, in United States v. Toothman, 137 F.3d 1393 (9th Cir. 1998), the Ninth Circuit held that a plea induced by material misinformation from the prosecution, court, and defense counsel was involuntary. During his plea hearing, Mr. Toothman was advised by his counsel that the sentencing guidelines would fix his sentence at somewhere between 10 to 16 months, and both the governments attorney and the district judge confirmed that defendants understanding. Id. at 1395-97. The subsequent pre-sentence report, however, recommended 199 months. Id. at 1397. After the receipt of the pre-sentence report, the defendant moved to withdraw his guilty plea; however, the district court denied his motion and sentenced him to 109 months. Id. at 1397-98.      The Ninth Circuit determined that the defendant had been misinformed by the court, government counsel and his own counsel, and held that "[b]ecause of this misinformation, we do not believe Toothman was equipped intelligently to accept the plea offer made to him." Id. at 1400; quoting, United States v. Watley, 987 F.2d 841, 842 (D.C. Cir. 1993). The Court of Appeal accordingly found that the plea was involuntary. Id. at 1401.      Thanks to Don Chairez for the suggestion for this argument.

DUE PROCESS - VIOLATION WHERE PROCEDURAL RULES DISCRIMINATE BETWEEN PROSECUTION AND DEFENSE
Wardius v. Oregon, 412 U.S. 470 (1973); Gray v. Klauser, 282 F.3d 633, 644 (9th Cir. 2002) (Idaho deprived petitioner of right to present a defense under Sixth Amendment when trial court used different standard for determining admissibility of hearsay statements from two dead victims. "A state rule or state judge may not without justification impose stricter evidentiary standards on a defendant . . . than it does on the prosecution.").

POST CON RELIEF - GROUNDS - INCOMPETENCY
Panetti v. Quarterman, ___ U.S. ___, 127 S.Ct. 2842 (state court failed to provide procedures to which petitioner was entitled under the Constitution to prove own incompetency to be subject to death penalty).

POST CON RELIEF - GROUNDS - JUDICIAL MISCONDUCT - NO APPARENT BIAS SHOWN
Crater v. Galaza, 491 F.3d 1119 (9th Cir. July 7, 2007) (judicial advice to defendant to take prosecutors deal did not display appearance of bias where judge did not have a pecuniary interest in the case, was not personally embroiled in a controversy with the defendant, and did not perform incompatible accusatory and judicial roles; judge had heard testimony of co-defendant and thought it likely defendant would be convicted of capital murder if he did not accept the plea bargain).

POST CON RELIEF - GROUNDS - VOLUNTARINESS OF PLEA
Doe v. Woodford, 508 F.3d 563 (9th Cir. Nov. 27, 2007) (affirming denial of habeas corpus over a challenge to the voluntariness of a plea: two-hour period to consider proposed plea agreement in first-degree murder case did not per se establish involuntary nature of plea).

Lower Courts of Second Circuit

POST CON - FEDERAL - GROUNDS - INVOLUNTARY PLEA WHERE DEFENDANT TOLD ONLY CONVICTION "COULD" RESULT IN DEPORTATION WHERE IT WAS VIRTUALLY CERTAIN TO DO SO
Zhang v. United States, ___ F.Supp.2d ___, 2005 WL 3086840 2005 U.S. Dist. LEXIS 28404 (E.D. N.Y. Nov. 18, 2005) (vacating conviction through granting motion to vacate sentence pursuant to 28 U.S.C. 2255 on involuntary plea and ineffective counsel grounds for misadvice concerning immigration consequences where defendant was informed only that the conviction "could result in your deportation," where it was certain to do so).

INVOLUNTARY PLEA CLAIM BASED ON MISINFORMATION CONCERNING IMMIGRATION CONSEQUENCES NOT BARRED
Zhang v. United States, ___ F.Supp.2d ___, 2005 WL 3086840 2005 U.S. Dist. LEXIS 28404 (E.D. N.Y. Nov. 18, 2005) (motion to vacate sentence pursuant to 28 U.S.C. 2255 on involuntary plea and ineffective counsel grounds for misadvice concerning immigration consequences not barred by failure to raise issues on direct appeal); Mandarino v. Ashcroft, 290 F. Supp.2d 253, 260-61 (D. Conn. 2002) (ignorance of deportation consequences of the defendant's sentence was "cause" for the defendant's failure to appeal the sentence); United States v. Singh, 305 F. Supp.2d 109, 111 (D.D.C. 2004) (permitting a procedurally barred 2255 claim regarding the voluntariness of a guilty plea made when the petitioner was not properly informed that deportation was absolute).

Fourth Circuit

POST CON RELIEF - GROUNDS - CONVICTION FOR BOTH CONSPIRACY AND SUBSTANTIVE OFFENSE INVALID WHERE CRIME ITSELF NECESSARILY REQUIRES TWO PERSONS - MARRIAGE FRAUD - WHARTON'S RULE
United States v. Rashan, 328 F.3d 160 (4th Cir. 2003) (rejecting argument that a conviction for both marriage fraud and conspiracy to commit marriage fraud violates Wharton's rule, that "it was improper for the government to prosecute him for both conspiracy to commit marriage fraud under 18 U.S.C. 371 and the substantive offense of marriage fraud under 8 U.S.C. 1325(c) because such prosecution violates the judicially devised doctrine called Wharton's Rule. Under Wharton's Rule, "[a]n agreement by two persons to commit a particular crime cannot be prosecuted as a conspiracy when the crime is of such a nature as to necessarily require the participation of two persons for its commission." Iannelli v. United States, 420 U.S. 770, 774 n. 5, 95 S.Ct. 1284, 43 L.Ed.2d 616 (1975) (quoting 1 R. Anderson, Wharton's Criminal Law and Procedure 89 p. 191 (1957)).").

Fifth Circuit

POST-CON - GROUNDS - JUDICIAL MISCONDUCT
United States v. Jackson, __ F.3d __ (5th Cir. Jun. 20, 2006) (sentence for possession of a firearm affirmed over a claim that district court violated constitutional rights by "threatening" defendants girlfriend with criminal prosecution if she took the stand during sentencing). http://caselaw.lp.findlaw.com/data2/circs/5th/0511094cr0p.pdf

Seventh Circuit

POST CON RELIEF - GROUNDS - INEFFECTIVE ASSISTANCE OF COUNSEL - DENIAL WHEN COUNSEL IS PRESENT ONLY BY SPEAKERPHONE
Van Patten v. Deppisch, ___ F.3d ___ 2006 WL 162992 (7th Cir. Jan. 24, 2006) (defense counsel's physical absence from courtroom where his client's guilty plea was entered constituted structural error resulting in denial of counsel, requiring reversal without inquiry into prejudice, even though counsel participated by speakerphone).

Ninth Circuit

STATE LAW " WASHINGTON STATE " EVIDENCE RULES
New Washington evidence rules make evidence regarding a persons immigration status generally inadmissible in civil and criminal courts. https://www.courts.wa.gov/court_rules/?fa=court_rules.display&group=ga&set=ER&ruleid=GAER0413

POST CONVICTION RELIEF " GROUNDS " JUDICIAL INVOLVEMENT IN PLEA BARGAINING " WAIVER
United States v. Myers, 804 F.3d 1246 (9th Cir. Sept. 14, 2015), amended Oct. 28, 2015 (affirming federal conviction, in which the defendant and government reached a plea deal during a settlement conference conducted by a magistrate judge, even though United States v. Davila, 133 S. Ct. 2139 (2013) makes clear that Fed. R. Crim. P. 11(c)(1) imposes a categorical bar on judicial participation in plea negotiations, even when the judicial participation is both requested by the defendant and sanctioned by the district court's local rules, Rule 11(c)(1) is waivable by the defendant, because the defendant failed to establish the alleged error affected his substantial rights because the record is bereft of evidence indicating that he suffered from any prejudice due to the magistrate judge's participation in the settlement conference).

POST CON RELIEF " RETROACTIVITY OF NEW LEGISLATION AMELIORATING PUNISHMENT
People v. Babylon, 39 Cal.3d 719 (1985) (where a statute defining a criminal offense was amended, narrowing the scope of punishable acts, while the case was on appeal, and there was no savings clause applied to the former statute, the defendants could no longer be prosecuted under the current statute which no longer proscribed their conduct).

POST CON " GROUNDS " PROSECUTORS MISSTATEMENT OF FACTS
United States v. Mageno, __ F.3d __ (9th Cir. Aug. 11, 2014) (prosecutors misstatements of facts during closing arguments encouraged jury to convict based on evidence not presented at trial).

POST CON RELIEF " GROUNDS " RIGHT TO PRESENCE " BATSON HEARING
Ayala v. Wong, ___ F.3d ___, 2014 WL 707162 (9th Cir. Feb. 25, 2014) (amending and superseding earlier opinion on denial of rehearing en banc) (reversing district courts denial of a habeas corpus petition challenging petitioner's conviction and capital sentence for murder and robbery, based on a violation of Batson v. Kentucky, 476 U.S. 79 (1986), where the exclusion of petitioner and his counsel from the ex parte Batson proceedings constituted prejudicial error that likely prevented petitioner from showing that the prosecution utilized its peremptory challenges in a racially discriminatory manner).

POST CON RELIEF " GROUNDS " RIGHT TO PRESENCE " BATSON HEARING
Ayala v. Wong, ___ F.3d ___, 2014 WL 707162 (9th Cir. Feb. 25, 2014) (amending and superseding earlier opinion on denial of rehearing en banc) (reversing district courts denial of a habeas corpus petition challenging petitioner's conviction and capital sentence for murder and robbery, based on a violation of Batson v. Kentucky, 476 U.S. 79 (1986), where the exclusion of petitioner and his counsel from the ex parte Batson proceedings constituted prejudicial error that likely prevented petitioner from showing that the prosecution utilized its peremptory challenges in a racially discriminatory manner).

POST CON RELIEF " GROUNDS " VIOLATION OF RULE 11 REQUIREMENT OF PERSONAL INDIVIDUAL COLLOQUY WITH EACH DEFENDANT BY EN MASSE PLEA PROCEEDING
United States v. Arqueta-Ramos, 730 F.3d 1133 (No. 10-10618) (9th Cir. Sept. 20, 2013) (vacating misdemeanor plea to illegal entry into the U.S., in violation of 8 U.S.C. 1325, where simultaneous plea was taken en masse by 66 defendants represented by 15 lawyers, through Operation Streamline violated Rule 11 of the Federal Rules of Criminal Procedure, because it did not meet Rule 11(b)(1)s requirement that the court address each defendant personally; the court did not engage in person to person speech during the advisement of rights or the subsequent small group questioning of the defendants.; this was prejudicial; since the defendant objected, the burden fell on the government to show she would have entered this plea if her rights had not been violated, which the government could not do). Concerning Operation Streamline, see Jennifer M. Chacn, Managing Migration Through Crime, 109 Columbia Law Review Sidebar 135 (2009).

POST CON RELIEF " GROUNDS " PLEA " EN MASS PLEA
United States v. Aguilar-Vera, 698 F.3d 1196 (9th Cir. Oct. 29, 2012) (although the group plea proceeding violated Federal Rule of Criminal Procedure 11(b)(1) and 11(b)(2), the error was harmless beyond a reasonable doubt).

POST CON RELIEF " GROUNDS " PROSECUTION MISCONDUCT " MISLEADING THE COURT
United States v. Lopez-Avila, 666 F.3d 622 (9th Cir. Jan. 12, 2012) (conviction affirmed where a mistrial due to the prosecutor's misconduct in misleading the court during his cross-examination of the defendant does not provide double jeopardy relief to defendant).

POST CON RELIEF " FEDERAL " DOUBLE JEOPARDY VIOLATION AFTER VACATUR
United States v. Alvarez-Moreno, 657 F.3d 869 (9th Cir. Sept. 13, 2011) (reversing an order of the district court setting aside a conviction and ordering a new trial to cure a structural defect, under Federal Rules of Criminal Procedure, Rules 33 and 26.3, where the court's order constituted a colorable double jeopardy violation).

POST CON RELIEF " GROUNDS " INSUFFICIENT EVIDENCE
United States v. Bagdasarian, ___ F.3d ___, 2011 WL 2803583 (9th Cir. Jul.19, 2011) (reversing conviction for threatening to kill and inflict bodily harm upon then-presidential candidate Barack Obama, 18 U.S.C. 879(a)(3), the threats in context failed to constitute sufficient evidence to establish beyond a reasonable doubt that defendant had the subjective intent to threaten a presidential candidate).

POST CON RELIEF " GROUNDS " MENTAL COMPETENCY
United States v. Duncan, 643 F.3d 1242 (9th Cir. Jul. 11, 2011) (district court erred in failing to hold a competency hearing prior to allowing the defendant to exercise his right to represent himself during his penalty phase hearing).

POST CON RELIEF " GROUNDS " GUILTY PLEA " MASS GUILTY PLEA HELD VOLUNTARY
United States v. Diaz-Ramirez, ___ F.3d ___, 2011 WL 1947226 (9th Cir. May 23, 2011) (affirming taking of guilty pleas at a large group hearing, rejecting claim that doing so violated the Fifth Amendment right to due process, where ample evidence supports finding by court that defendants, natives and citizens of Mexico, voluntarily and understandingly pled guilty, as required by Boykin, to illegally entering the United States in violation of 8 U.S.C. 1325).

POST CON RELIEF " GROUNDS " GUILTY PLEA " MASS GUILTY PLEA HELD VOLUNTARY
United States v. Escamilla-Rojas, __ F.3d __ (9th Cir. May 12, 2011) (two-hour delay between judge giving general advisement to group of 50+ criminal defendants and asking defendant individually if she understood the advisements violated Rule 11 requirement that court personally address the defendant; however, the error was harmless).

POST CON RELIEF " FEDERAL " GROUNDS " INSUFFICIENT EVIDENCE
Smith v. Mitchell, 624 F.3d 1235 (9th Cir. Oct. 29, 2010) (habeas corpus granted, for insufficient evidence, where no rational trier of fact could have found beyond a reasonable doubt that petitioner caused the child's death, and the state court's affirmance of the conviction was an unreasonable application of Jackson v. Virginia, 443 U.S. 307 (1979)).

POST CON RELIEF " GROUNDS " UNCONSTITUTIONALITY OF STATUTE
Powells Books, Inc. v. Kroger, 622 F.3d 1202 (9th Cir. Sept. 20, 2010) (Oregon statute criminalizing providing minors under the age of eighteen with visual, verbal, or narrative descriptions of sexual conduct for the purpose of sexually arousing the minor or the furnisher, or inducing the minor to engage in sexual conduct, on its face reached a significant amount of material that was not obscene as to minors, and therefore the statute was unconstitutionally overbroad).

POST CON RELIEF - GROUNDS - VOLUNTARINESS OF PLEA - EN MASS PLEA
United States v. Roblero-Solis, 588 F.3d 692 (9th Cir. Dec. 2, 2009) (Rule 11 objection to court's failure to address defendants individually and personally was waived, and defendants failed to establish a reasonable probability that but for the error, the plea would not have been entered, so the Rule 11 error was harmless).

POST CON RELIEF - GROUNDS - EN MASS PLEA PROCEEDING
United States v. Roblero-Solis, 588 F.3d 692 (9th Cir. Dec. 2, 2009) (when district court simultaneously accepted guilty pleas en masse from 47 individual defendants in unrelated cases, its failure to address each defendant individually to determine that each defendants plea was voluntary violated Federal Rules of Criminal Procedure, Rule 11, but the violation was harmless in this case: "We cannot permit this rule to be disregarded in the name of efficiency nor to be violated because it is too demanding for a district court to observe. We act within a system maintained by the rules of procedure. We cannot dispense with the rules without setting a precedent subversive of the structure."), distinguishing United States v. Martinez-Martinez, 69 F.3d 1215, 1223 (1st Cir. 1995) (two codefendants); United States v. Hobson, 686 F.2d 628, 629-30 (8th Cir. 1982) (small but unspecified number of codefendants in same conspiracy); United States v. Fels, 599 F.2d 142, 144, 146 (7th Cir. 1979) (three codefendants).

POST CONVICTION RELIEF - GROUNDS - DOUBLE JEOPARDY
United States v. Hector, 577 F.3d 1099, (9th Cir. Aug. 18, 2009) In a child pornography prosecution, defendant's sentence is vacated where the district court was required to use its discretion in determining whether to vacate defendant's receipt conviction or his possession conviction to avoid double jeopardy concerns.

POST CON RELIEF - GROUNDS - MENTAL COMPETENCY
United States v. Ferguson, 560 F.3d 1060 (9th Cir. Mar. 27, 2009) (child pornography conviction is vacated, where after trial Supreme Court decided Indiana v. Edwards, 128 S. Ct. 2379 (2008), prescribing a different standard for evaluating a defendant's mental competency than the one used by the District Court).

POST CON - GROUNDS - INSUFFICIENT EVIDENCE - STANDARD OF REVIEW ON HABEAS CORPUS
Briceno v. Scribner, 555 F.3d 1069 (9th Cir. Feb. 23, 2009) ("To prevail on an insufficiency of evidence claim, a habeas petitioner must show that "upon the record evidence adduced at the trial[,] no rational trier of fact could have found proof of guilt beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 324, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). An additional layer of deference is added to this standard by 28 U.S.C. 2254(d), which obliges Briceno to demonstrate that the state court's adjudication entailed an unreasonable application of the quoted Jackson standard."), citing See Juan H. v. Allen, 408 F.3d 1262, 1274 (9th Cir. 2005).

POST CON RELIEF - DOUBLE JEOPARDY
United States v. Schales, 546 F.3d 965 (9th Cir. Oct. 20, 2008) (child pornography case remanded to district court to vacate either conviction for receiving child pornography, under 18 U.S.C. 2252(a)(2), or the conviction for possessing child pornography, under 18 U.S.C. 2252(a)(4)(B), because dual convictions violate the Double Jeopardy Clause because possession of child pornography is a lesser included offense within receipt of child pornography; and convictions on the two counts were based on the same conduct).

POST CON RELIEF - FEDERAL - GROUNDS - JURY TRIAL -- FAILURE TO ADVISE DEFENDANT THAT JURY MUST FIND GUILT BEYOND REASONABLE DOUBT - REVERSAL REQUIRED WITHOUT SHOWING OF PREJUDICE IF OBJECTION WAS MADE AND OVERRULED
United States v. Ross, 511 F.3d 1233, ___, (9th Cir. Jan. 14, 2008) (court's failure under Federal Rule of Criminal Procedure 11 to advise defendant that he may not be convicted unless government proves its case beyond a reasonable doubt constituted error, but not plain error requiring reversal: " This was error. Rule 11 provides, in part, that Ross must understand his "right to a jury trial" and "the nature of each charge" before his guilty plea may be accepted. See Rule 11(b)(1)(C), (G). Because the reasonable doubt standard of proof is a due process requirement that permeates all aspects of a criminal trial, see In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), we read Rule 11 as requiring an advisement of the reasonable doubt standard of proof .FN1 Such an advisement was particularly necessary in this case because admission to the stated drug quantity exposed Ross to a higher sentence. United States v. Minore, 292 F.3d 1109, 1113 (9th Cir.2002) ("[B]efore accepting a guilty plea, the district court must advise the defendant that the government would have to prove to the jury beyond a reasonable doubt any quantity of drugs that would expose the defendant to a higher statutory maximum sentence."); see also 21 U.S.C. 841(b) (prescribing different statutory maximums for violations involving various quantities of crack)."), citing Benchbook for U.S. District Court Judges 78 (5th ed.) (2007) ("Ask the defendant: Do you understand ... that at trial you would be presumed to be innocent and the government would have to prove your guilt beyond a reasonable doubt[?]"); accord, United States v. Wagner, 996 F.2d 906, 912 (7th Cir.1993) ( "Pursuant to [Rule 11,] the court advised the defendants that ... they would not be convicted unless proved guilty beyond a reasonable doubt."); United States v. Bell, 966 F.2d 914, 917 (5th Cir.1992) ("[T]he district court engaged [the defendant] in the requisite Rule 11 colloquy, advising him of ... the right to a ... public trial by jury at which the government would have to prove him guilty beyond a reasonable doubt...."); United States v. Wade, 940 F.2d 1375, 1377 (10th Cir.1991) ("[T]he district court followed the requirements of Rule 11 by discussing with the defendant ... the right ... to have the government prove all the elements of the offense beyond a reasonable doubt ....").

POST CON RELIEF - FEDERAL - GROUNDS - JURY TRIAL -- FAILURE TO ADVISE DEFENDANT THAT JURY MUST FIND GUILT BEYOND REASONABLE DOUBT - PREJUDICE REQUIRED FOR REVERSAL IF NO OBJECTION WAS MADE IN COURT BELOW
United States v. Ross, 511 F.3d 1233, ___ (9th Cir. Jan. 14, 2008) (court's failure under Federal Rule of Criminal Procedure 11 to advise defendant that he may not be convicted unless government proves its case beyond a reasonable doubt constituted error, but did not require reversal since no objection was made and defendant did not satisfy the plain error standard of review, since he was aware the reasonable doubt standard applied and thus could not show "a reasonable probability that, but for the error, he would not have entered the [guilty] plea."), citing United States v. Dominguez Benitez, 542 U.S. 74, , 76, 124 S.Ct. 2333 (June 14, 2004) (because the right to withdraw a plea of guilty as a consequence of the District Court's failure to give one of the warnings required by Federal Rule of Criminal Procedure 11 was not preserved by timely objection, the plain-error standard of Rule 52(b) applies, with its requirement to prove effect on substantial rights by showing a reasonable probability that, but for the error, the defendant would not have entered the plea).

POST-CON RELIEF - VINDICTIVE PROSECUTION
United States v. Jenkins, __ F.3d__ (9th Cir. Jul. 17, 2007) (since government could have prosecuted defendant for alien smuggling well before she presented her theory of defense at a marijuana smuggling trial, the timing of the charges created the appearance of vindictiveness, despite governments assertion that the case against defendant was much stronger after her in-court admission).

POST CON RELIEF - GROUNDS
Phillips v. Hust, __ F.3d __, 2007 WL 446593 (9th Cir. Feb. 13, 2007) (arbitrary denial by prison officials of access to materials that prison routinely did made available to inmates, for the preparation of legal documents, constitutes a denial of an inmate's right of access to the courts where it results in the loss of a legal claim).

POST CON RELIEF - GROUNDS - VOLUNTARINESS OF PLEA - SHORT TIME TO CONSIDER OFFER
Busch v. Woodford, ___ F.3d ___, 2007 WL 2429363 (9th Cir. 2007) (plea involuntary where defendant in first degree murder case was given only hours to consider the proposed plea agreement).

HABEAS CORPUS - FEDERAL - TOLLING DUE TO PRISON'S FAILURE TO PROVIDE LAW LIBRARY MATERIALS
Mendoza v. Carey, __ F.3d __ (9th Cir. Jun. 7, 2006) (evidentiary hearing required to determine if prison's failure to provide Spanish-language materials and assistance to Spanish-speaking inmates constituted extraordinary circumstance justifying tolling of one-year period for filing federal habeas petition); distinguishes Kane v. Garcia Espitia, 126 S. Ct. 407, 408 (2005) (per curiam) (denial of access to a law library cannot provide a basis for a pro se petitioner's habeas relief) because Mendoza only involves the tolling of an AEDPA deadline, not grant of habeas relief.

POST-CON - GROUNDS - ACCESS TO SPANISH MATERIALS
Mendoza v. Carey, __ F.3d __ (9th Cir. Jun. 07, 2006) (denial of habeas reversed and remanded where petitioner had alleged facts which, if true, could entitle him to equitable tolling with regards to claims that he lacked English language ability, was denied access to Spanish-language legal materials, and could not procure the assistance of a translator during running of AEDPA period). http://caselaw.lp.findlaw.com/data2/circs/9th/0456733p.pdf

POST CON RELIEF - GROUNDS - INSUFFICIENCY OF EVIDENCE
United States v. Rios, __ F.3d __ (9th Cir. Jun. 02, 2006) (expert testimony that drug traffickers generally use firearms to further their drug crimes, was not by itself sufficient to establish that a firearm was possessed in furtherance of a particular drug crime). http://caselaw.lp.findlaw.com/data2/circs/9th/0550000p.pdf

POST CON RELIEF - FEDERAL - HABEAS - GROUNDS - VIOLATION OF PLEA AGREEMENT
Buckley v. Terhune, ___ F.3d ___ (9th Cir. Mar. 17, 2006) (state court's decision that the plea agreement provided for imposition of sentence of 15 years to life was contrary to clearly established Supreme Court law as set forth in Santobello v. New York, 404 U.S. 257 (1971), and Ricketts v. Adamson, 483 U.S. 1 (1987): plea agreement was ambiguous; plea agreement was required to be interpreted as providing for a maximum prison sentence of 15 years; and specific performance of sentencing provision of plea agreement was proper remedy, where DA's written offer, which defendant accepted, informed him that he would be sentenced to a maximum of 15 years for second-degree murder, and court agreed; after defendant had initialed the plea agreement, the prosecutor wrote in "15 years to life" as the recommendation, but the fact that a 15-year sentence was not a lawful sentence was irrelevant: "that is the bargain that California made in 1987.").

POST-CON - JURY INSTRUCTIONS
United States v. Alferahin, ___ F.3d ___, 2006 WL 51181 (9th Cir. Jan. 11, 2006) (conviction of knowingly procuring naturalization contrary to law, in violation of 8 U.S.C. 1425(a), reversed for ineffective assistance of counsel since jury instructions were incomplete, and defense attorney declined the court's offer to instruct the jury on the element of materiality).
http://caselaw.lp.findlaw.com/data2/circs/9th/0410590p.pdf

POST CON RELIEF - FEDERAL - GROUNDS - INVOLUNTARY PLEA - COURT'S FAILURE TO INFORM DEFENDANT HE WAS SUBJECT TO MANDATORY FINE UNDER GUIDELINES
United States v. Adams, ___ F.3d ___ (9th Cir. Jan. 3, 2006) (conviction vacated where guilty plea was not knowing, voluntary and intelligent in light of district court's failure to inform defendant he was subject to a mandatory fine under the sentencing guidelines).
http://caselaw.lp.findlaw.com/data2/circs/9th/0430339p.pdf

POST CON RELIEF - GROUNDS - INEFFECTIVE ASSISTANCE OF COUNSEL - VIOLATION OF ATTORNEY-CLIENT PRIVILEGE
Plumlee v. Del Papa, 465 F.3d 910 (9th Cir. 2006) (defendants decision to self-representation not reasonable when decision was forced by ineffective assistance of prior counsel).

POST CON RELIEF - FEDERAL HABEAS REVIEW OF STATE CONVICTION - RIGHT TO EVIDENTIARY HEARING
Earp v. Ornoski, ___ F.3d ___, 2005 WL 3440810 (9th Cir. Dec. 16, 2005) (denial of habeas petition reversed where petitioner had never been given an evidentiary hearing on prosecutorial misconduct and ineffective assistance of counsel claims).
http://caselaw.lp.findlaw.com/data2/circs/9th/0399005p.pdf

CRIMINAL LAW & PROCEDURE, HABEAS CORPUS
Fowler v. Sacramento County, 421 F.3d 1027 (9th Cir. Aug. 31, 2005) (defendant was improperly precluded from cross-examining accuser in violation of Sixth Amendment right to confrontation).
http://caselaw.lp.findlaw.com/data2/circs/9th/0415885p.pdf

POST CON RELIEF - GROUNDS - INSUFFICIENT EVIDENCE
Juan H. v. Allen, ___ F.3d ___ (9th Cir. June 2, 2005) (denial of writ of habeas corpus reversed where prosecution failed to present evidence that proved guilt beyond a reasonable doubt that defendant standing next to his brother assisted him in shooting rival gang member: "During the shooting, Juan H. did not say anything, make any gestures, or otherwise encourage Merendon. ... The record contains manifestly insufficient evidence to support the necessary conclusions that Juan H. knew that Merendon planned to commit the first-degree murders of Ramirez and Magdelano, and that Juan H. acted in a way intended to encourage or facilitate these killings. Viewed in a light most favorable to the prosecution, the circumstantial evidence in this case does not permit any reasonable factfinder to sustain the delinquency petition of Juan H. on the charges of aiding and abetting first-degree murder and attempted first-degree murder, as those crimes are defined by California law."). http://caselaw.lp.findlaw.com/data2/circs/9th/0415562p.pdf

POST CON RELIEF - SENTENCE - GROUNDS - ALLOCUTION
United States v. Gunning, __ F.3d __ (9th Cir. March 31, 2005) (district court improperly denied defendant right of allocution when it did not address defendant and when defendant asked for consideration to his family when setting restitution payments, "did not even acknowledge those comments.").
http://caselaw.lp.findlaw.com/data2/circs/9th/0430104p.pdf

POST CON - GROUNDS - PROSECUTORIAL MISCONDUCT -- ARGUING INCONSISTENT THEORIES
Shaw v. Terhune, ___ F.3d___ (9th Cir. Aug. 10, 2004) (possible due process argument exists when prosecutor advances factually inconsistent arguments in prosecuting two co-defendants for "personal use" of weapon although only one could have committed the crime; argument fails where there is sufficient evidence for jury to convict both defendants without implicating factual tension). But see generally Donnelly v. DeChristoforo, 416 U.S. 637, 648-49 (1974) (Douglas, J., dissenting)

POST CON RELIEF - FEDERAL - RULE 32(e) NOW 11(d)(2)(B) - ILLEGAL REENTRY CONVICTION INVALID SINCE DEPORTATION INVALID BECAUSE OF ST. CYR RESPONDENT ELIGIBLE FOR 212(C) BUT NOT INFORMED OF THIS BY THE IMMIGRATION JUDGE
United States v. Ortega-Ascanio, ___ F.3d ___, 2004 WL 1575244 (9th Cir. July 15, 2004) (district court committed an error of law, and thus an abuse of discretion, in denying a F.R.Crim. P. 32(e) (now 11(d)(2)(B)) motion to withdraw a guilty plea in an illegal reentry case, by applying an incorrect standard: a defendant need not prove that his plea is invalid in order to meet his burden of establishing a fair and just reason for withdrawal; where after plea, but before sentence, the Supreme Court decided INS v. St. Cyr, 533 U.S. 289 (2001), holding that INA 212(c) relief had been available to respondent in removal proceedings based on two crime of moral turpitude convictions, but the immigration judge had failed to inform him of it, and he was not represented by counsel, and waived appeal).

CRIMINAL DEFENSE - BRADY VIOLATION - D NOT PREJUDICED BY GOV FAILURE TO DISCLOSE IT HAD REWARDED KEY WITNESS WITH AN ILLEGAL GREEN CARD
United States v. Ross, ___ F.3d ___, 2004 U.S. App. LEXIS 12117 (9th Cir. June 21, 2004) (defendant in drug case was not prejudiced by government's behavior, including failure to disclose that key informant was rewarded with illegally-obtained permanent resident status, since "evidence of guilt would have been overwhelming even if [informants] credibility had been demolished.").

AGGRAVATED FELONY - SEXUAL ABUSE OF A MINOR - FEDERAL INTERNET OFFENSE
United States v. Dhingra, 371 F.3d 557 (9th Cir. June 8, 2004) (18 U.S.C. 2422(b), using internet to solicit sexual activity from minor, held not facially unconstitutional as overbroad, vague, or violative of First or Tenth Amendments, for incorporating state criminal sex offense statutes).
http://caselaw.lp.findlaw.com/data2/circs/9th/0310001p.pdf

GROUNDS - MENTAL INCOMPETENCE - APPEAL FROM FEDERAL COMMITMENT
United States v. Friedman, ___ F.3d ___ (9th Cir. May 6, 2004) (defendant could appeal commitment order, as collateral order, after involuntarily commission to custody of Attorney General after being found incompetent to stand trial).

POST CON - PROSECUTORIAL MISCONDUCT
United States v. Cabrera, 222 F.3d 590, 591 (9th Cir. 2000) (convictions reversed where detective witness made numerous remarks about stereotypical tendencies of persons of defendants ethnicity; "[t]he fairness and integrity of criminal trials are at stake if we allow police officers to make generalizations about racial and ethnic groups in order to obtain convictions. People cannot be tried on the basis of their ethnic backgrounds or national origin."). United States v. Vue, 13 F.3d 1206, 1212-13 (8th Cir. 1994) (reversible error to allow customs agents testimony about tendency of Hmong people to smuggle opium). United States v. Cruz, 981 F.2d 659, 663-64 (2d Cir. 1992) (reversible error to allow DEA agents testimony about high level of drug activity in Hispanic neighborhood). United States v. Rodriguez Cortes, 949 F.2d 532 (1st Cir. 1991) (reversible error to admit Colombian ID card into evidence to be used to make generalizations about Colombians and drug trafficking). Guerra v. Collins, 916 F. Supp 620, 629-30 (S.D. Texas 1995) (vacating conviction based upon prosecutors statement that "Mexicans only come to the United States to commit crimes and take jobs away from US citizens"). State v. Mehralian, 301 N.W.2d 409, 418-19 (N.D. 1981) (prejudice shown by prosecutors questions regarding defendants religion and immigration status). People v. Maria, 194 N.E. 510, 512 (Ill. 1935) (prejudice shown by prosecutors statements that defendant was noncitizen and did not pay taxes).

POST CON RELIEF - GROUNDS - CONSPIRACY - INSUFFICIENT EVIDENCE - EVIDENCE OF BUYER-SELLER RELATIONSHIP, STANDING ALONE, INSUFFICIENT TO PROVE CONSPIRACY SINCE SALE REQUIRES TWO PERSONS FOR ITS COMMISSION
United States v. Montgomery, 150 F.3d 983, 1002 (9th Cir. 1998) ("[E]vidence of a mere buyer-seller relationship is insufficient to support a conspiracy conviction [unless there is third party involvement, or it was agreed between them that the drugs would be further distributed]."); United States v. Lennick, 18 F.3d 814, 819 (9th Cir. 1994) ("[P]roof that a defendant sold drugs to other individuals does not prove the existence of a conspiracy.");.accord United States v. Douglas, 818 F.2d 1317, 1321 (7th Cir. 1987) ("[M]erely purchasing drugs or other property from a conspiracy, standing alone, can never establish membership in the conspiracy"); United States v. Tyler, 758 F.2d 66, 69 (2d Cir. 1985) (merely introducing a willing buyer to a willing seller does not establish conspiracy). See Sevilla, What About Whartons Rule?, CACJ Nuggets (Jun.19, 2008).

There are exceptions to this rule. If a statute implicitly or explicitly allows a conspiracy to be charged in addition to the substantive offense, then the statute controls. Iannelli v. United States, 420 U.S. 770 (1975) (lengthy description of Whartons Rule, finding it inapplicable to a prosecution for conspiracy as well as a federal gambling statute (18 U.S.C. 1955) based on an analysis of legislative intent).

There are other examples of substantive offenses that require two persons to commit them. E.g., People v. Wettengel, 98 Colo. 193 (Colo. 1936) (bribery, as a crime requiring two peoples involvement, one to offer the bribe and one to accept it, could not qualify as a conspiracy where the actors within the conspiracy included both sides of the bribe); Gebardi v. United States, 287 U.S. 112, 121 (1932) (transporting a woman across state lines for immoral purposes in violation of the Mann Act: "Of this class of cases we say that the substantive offense contemplated by the statute itself involves the same combination or community of purpose of two persons only which is prosecuted here as conspiracy. If this were the only case covered by the act, it would be within those decisions which hold, consistently with the theory upon which conspiracies are punished, that where it is impossible under any circumstances to commit the substantive offense without cooperative action, the preliminary agreement between the same parties to commit the offense is not an indictable conspiracy either at common law, * * * or under the federal statute."); People v. Purcell, 304 Ill. App. 215 (Ill. App. Ct. 1940) (indictment returned charging defendants with conspiring with each other to gamble, holding the substantive offense of gaming required the concerted action of two or more persons so the substantive offense could not be committed by each of the two defendants); People v. Mayers, 110 Cal. App. 3d 809, 815 (1980)(the defendant was convicted of operating a game of three-card monte, and conspiracy to cheat and defraud another in the game; Court of Appeal held the defendant could not be convicted of conspiracy because the game required the concerted effort of a dealer and a shill); People v. Keyes, 103 Cal. App. 624, 646 (1930) (in denying rehearing, the Supreme Court noted the Rule and stated: "we deem it proper to say that we withhold our approval of so much of the opinion [of the Court of Appeal] rendered as holds that in California, contrary to rulings elsewhere, an unlawful agreement between two parties, the one to give and the other to receive a bribe, may constitute a criminal conspiracy. It is true that a set of defendants may conspire to give or a set of defendants may conspire to receive or accept a bribe, but bribery requires for its consummation the unlawful concert of one or more persons acting with one or more other persons having a different motive or purpose. That being true, there is in such a case no room for the operation of a charge of conspiracy.").

California courts have found the Rule inapplicable in situations where the intent of the statute permits conspiracy prosecutions. See People v. Lee, 136 Cal. App. 4th 522 (2006) (defendant may be convicted of a conspiracy to furnish a controlled substance to a prison inmate in violation of Pen. Code, 4573.9. The same is true where the crime clearly involved other people than the two needed for the crime itself. In Hutchins v. Municipal Court, 61 Cal. App. 3d 77 (1976), an attorney was charged with aiding and abetting and conspiring with runners (cappers) to solicit business, in violation of Cal. Bus. & Prof. Code 6152, 6153. The attorney contended that while the cappers were subject to prosecution for violating 6152 and 6153, attorneys were not. On appeal, the court held the legislative history did not support the attorney's contention. An attorney who joins with cappers for the solicitation of business could be properly charged with solicitation, under which he could be found guilty of the completed offense set forth in 6152 and 6153, or with conspiracy. Wharton's Rule was held not to apply because the completed crime necessarily involves approaching third persons. In Calhoun v. Superior Court of San Diego County, 46 Cal. 2d 18, 29-30 (1955), Calhoun was indicted by the grand jury for conspiring to receive political contributions from persons licensed by the Board of Equalization to sell alcoholic beverages under Cal. Elec. Code 5002.5 and for obstruction of justice under Cal. Penal Code 182(5). Calhoun was a director of a nonprofit that sold alcohol. He was also general counsel for an association of wholesale liquor distributors, which gave him the authority to contribute to political funds. He was indicted for using these positions to fund a campaign to reelect a member of the board by improperly using monies provided by retail liquor licensees to fight a different political cause. He sought a writ of prohibition to restrain respondent Superior Court from going forward with a trial on the indictment. Denied. The Court held that the evidence showed an elaborate conspiracy to utilize contributions from both retail and wholesale liquor licensees to finance a political campaign and that petitioner was connected with the campaign as more than a donor. The Court rejected his Whartons Rule argument by noting that the conduct involved a widespread conspiracy: "In attacking the sufficiency of the evidence to support count I of the indictment, Calhoun urges that it establishes only his participation as a donor, or the agent of a donor, in the making of contributions to Bonelli's campaigns. He relies upon the rule, to which this court referred in denying a petition for hearing in People v. Keyes, 103 Cal.App. 624, 646 [284 P. 1096], which precludes prosecution for conspiracy to commit a substantive offense when the only concert of action shown is that necessary to consummate the substantive offense. (Gebardi v. United States, 287 U.S. 112 [53 S.Ct. 35, 77 L.Ed. 206, 84 A.L.R. 370]; notes, 26 So.Cal.L.Rev. 64, 70; 23 So.Cal.L.Rev. 262.) There is little dispute, however, that the evidence shows an elaborate conspiracy to utilize contributions from both retail and wholesale liquor licensees to finance Bonelli's political campaigns."

When applicable, the Rule prevents a defendant from being convicted both for a conspiracy to commit an offense and the substantive offense where the latter offense requires concerted action. It may be that both crimes can be charged if the prosecution hurdles the insufficiency of evidence issues at a preliminary hearing and a 995 motion (and a later 1181.1 during trial). If the conspiracy charge makes it to verdict, the jury should be instructed that unless the other necessary facts are proven, it must acquit of the conspiracy.

Lower Courts of Ninth Circuit

GUILTY PLEAS - PLEA BARGAIN - COURT'S INVOLVEMENT AS VIOLATION OF DUE PROCESS
People v. Weaver, 118 Cal.App.4th 131 (April 29, 2004) (due process violated when presiding judge adopted role as advocate in the case in encouraging a plea bargain).

Other

CAL POST CON " GROUNDS " RIGHT TO NEUTRAL GRAND JURY
McGill v. Superior Court, No., __ Cal.App.4th __, 2011 WL 2120179 (May 31, 2011) (right to neutral grand jury violated where grand jury returned perjury indictment for statements made before the same grand jury).

THREAT TO EXPOSE UNDOCUMENTED STATUS CAN CONSTITUTE CRIMINAL EXTORTION
David P. Weber, (Unfair) Advantage: Damocles Sword And The Coercive Use Of Immigration Status In A Civil Society, 94 Marquette L. Rev. 613 (2010) (When an immigrant is being threatened with a loss of property or something else of value, the threatening party, whether a lawyer or nonlawyer, may be engaging in the crime of extortion depending on the relevant . . . definition of the crime.).

ATTORNEY-CLIENT PRIVILEGE " DUTY TO KEEP UNDOCUMENTED IMMIGRATION STATUS CONFIDENTIAL
Attorneys representing unauthorized immigrants are required to maintain their clients immigration status confidential unless otherwise directed or required by law, and are not required to affirmatively notify opposing counsel or the court of their clients immigration status. David P. Weber, (Unfair) Advantage: Damocles Sword And The Coercive Use Of Immigration Status In A Civil Society, 94 Marquette L. Rev. 613, 639 n.158 (2010).

PRACTICE ADVISORY " POST CON RELIEF " GROUNDS " STATUTE " DUE PROCESS FORBIDS SHIFTING BURDEN TO DEFENDANT
Burden shifting presumptions involving elements of an offense violate due process. The Due Process Clause forbids the Court from relieving the prosecution of the burden of going forward with evidence or the burden of persuasion with respect to any of the essential elements specified by the legislature for the charged offense. Carella v. California, 491 U.S. 263, 265, 109 S. Ct. 2419, 2420, 105 L. Ed. 2d 218, 221 (1989). For this reason, the Supreme Court has held that it violates Due Process and is reversible error to tell a jury that: (1) If the defendant removed property he thought to be abandoned on government property, the fact that he took it with felonious intent is presumed by his own act. Morisette v. United States, 342 U.S. 246, 249, 72 S. Ct. 240, 243, 96 L. Ed. 288, 293 (1952). (2) The law presumes that a person intends the ordinary consequences of his voluntary acts. Sandstrom v. Montana, 442 U.S. 510, 513, 99 S. Ct. 2450, 2453, 61 L. Ed. 2d 39, 44 (1979) (This instruction had the effect of relieving the State of the burden of proof on the critical question of the defendant's state of mind in a homicide prosecution.). (3) A person of sound mind and discretion is presumed to intend the natural and probable consequences of his acts but the presumption may be rebutted. Francis v. Franklin, 471 U.S. 307, 309, 105 S. Ct. 1965, 1968, 85 L. Ed. 2d 344, 350 (1985) (Defendant denied firing a fatal shot voluntarily or intentionally and claimed that shots were fired in accidental response to a slamming door. A jury instruction that a person's acts were presumed to be the product of his will and that a person was presumed to intend the consequences of his acts, but that such presumptions could be rebutted, on the crucial issue of intent, did not comport with the requirements of the Due Process Clause because the language was like a command and the jurors were not told that they had a choice, or that they might infer the stated conclusions, but only that the law so presumed. Therefore, a rational juror could have understood the challenged language as creating a mandatory presumption that shifted to defendant the government's burden of persuasion on the crucial element of intent.). (4) The defendants intent to commit theft by fraud is presumed if he failed to return a rented vehicle within twenty days after the owner made a written demand by certified mail for its return, and he shall be presumed to have embezzled the vehicle if he intentionally failed to return the vehicle within five days after the rental agreement expired. Carella v. California, 491 U.S. 263, 265, 109 S. Ct. 2419, 2420, 105 L. Ed. 2d 218, 221 (1989). Thanks to David L. Heilberg.

POST CON RELIEF " GROUNDS " UNCONSTITUTIONALITY OF STATUTE " MANDATORY PRESUMPTION
Sandstrom v. Montana, 442 U.S. 510 (1979) (statute defining a criminal offense that contains an irrebuttable presumption of an essential element of the offense is unconstitutional).

POST CON RELIEF - GROUNDS - JUDICIAL DISPARAGEMENTS
Annot., Remarks or Acts of the Trial Judge Criticizing, Rebuking, Or Punishing Defense Counsel in Criminal Case As Requiring New Trial or Reversal 62 A.L.R.2d 166.

CAL POST CON -- GROUNDS - INEFFECTIVE ASSISTANCE OF COUNSEL -- PROSECUTORIAL DUTY TO NEGOTIATE IMMIGRATION -- LOS ANGELES D.A. POLICY PROVIDES EXCEPTION TO NORMAL PLEA BARGAINING RULES WHERE ADVERSE IMMIGRATION CONSEQUENCES ARE DISPROPORTIONATE
The prosecutor has a duty to consider immigration consequences when raised by a defendant in the context of plea negotiations. The Los Angeles District Attorneys Office has posted its policy online, allowing deputy district attorneys to make exceptions to the ordinary plea-bargaining and post-conviction relief settlement policies when adverse immigration consequences are disproportionate, if the approval of a superior is obtained. http://da.co.la.ca.us/sd03-04.htm

IMMIGRATION OFFENSES " UNLAWFUL PRESENCE " NOT A CRIMINAL OFFENSE
Harry J. Joe, Illegal Aliens in State Courts: To Be or Not to Be Reported to Immigration and Naturalization Service?, 63 TEX. B.J. 954, 957 (2000) (noting that unauthorized presence itself is not a criminal offense); Michael John Garcia, Criminalizing Unlawful Presence: Selected Issues, at CRS-2 (2006), http://trac.syr.edu/immigration/library/P585.pdf ([A]n alien found unlawfully present in the U.S. is typically subject only to removal.).

EVIDENCE " ADMISSIBILITY " IMMIGRATION STATUS IS INADMISSIBLE TO IMPEACH
TXI Transp. Co. v. Hughes, 306 S.W.3d 230, 242 n.7 (Tex. 2010) (a witnesss immigration status is not admissible for impeachment purposes based on the witnesss truthfulness or lack thereof); citing First Am. Bank v. W. DuPage Landscaping, Inc., No. 00 C 4026, 2005 WL 2284265, at *1 (N.D. Ill. 2009); Mischalski v. Ford Motor Co., 935 F. Supp. 203, 207"08 (E.D.N.Y. 1996); Castro-Carvache v. INS, 911 F. Supp. 843, 852 (E.D. Pa. 1995); Figeroa v. I.N.S., 886 F.2d 76, 79 (4th Cir. 1989); Hernandez v. Paicius, 134 Cal. Rptr. 2d 756, 761"62 (Cal. Ct. App. 2003).

POST-CON RELIEF " GROUNDS " JUDICIAL BIAS " BIAS AGAINST IMMIGRANTS
In re M.M., 587 S.E.2d 825, 831 (Ga. Ct. App. 2003) (statements of open bias such as I have a problem with your immigration situation); see also People v. Phuong, 679 N.E.2d 425, 428 (Ill. App. Ct. 1997) (chastising trial judge for discriminatory comments such as [n]othing like a bench trial with a Chinese interpreter); Mejia v. United States, 916 A.2d 900, 903 (D.C. Cir. 2007) (reversing a conviction on the grounds that a judges musings, though potentially well-intentioned, created a perception of bias); In re Goodfarb, 880 P.2d 620, 623 (Ariz. 1994) (sanctioning a judge for using racially inflammatory language in court); see also In re Schiff, 635 N.E.2d 286, 287"88 (N.Y. 1994) (disciplining judges for purposefully disparaging Puerto Ricans in the presence of an Hispanic attorney);

PRACTICE ADVISORY " COURT HAS NO DUTY TO REPORT ILLEGAL IMMIGRATION STATUS
Every judicial ethics advisory committee that has examined and reported on the issue has concluded that courts no affirmative obligation exists to report on undocumented immigration. Cynthia Gray, A Judges Obligation to Report Criminal Activity, JUD. CONDUCT REP., Fall 1996, at 3; see, e.g., N.Y. Advisory Comm. on Judicial Ethics, Op. 05-84 (2005) (noting that while a judge must report misconduct by another judge or attorney who has violated the Code of Judicial Conduct or Rules of Professional Responsibility, no rule has been adopted regarding litigants or witnesses); see also Ala. Judicial Inquiry Commn, Op. 86-281 (1986) (no duty to report criminal offense discovered during course of trial); Ariz. Judicial Ethics Advisory Comm., Op. 92-15 (1992) (no duty to report illegal activity); Fla. Ethics Advisory Comm., Op. 78-4 (no duty to report illegal activity); Ill. Judicial Ethics Comm., Op. 02-01 (2002) (no duty to report illegal activity, though reporting is not prohibited); Me. Ethics Advisory Comm., Op. 01-1 (2001) (no duty to report illegal activity); Utah Ethics Advisory Comm., Op. 00-3 (2000) (no duty to report illegal activity); and Wash. Ethics Advisory Comm., Op. 02-9 (2002) (no duty to report illegal activity).