CONVICTION - EVIDENCE - NCIC REPORT SUFFICIENTLY RELIABLE TO ESTABLISH EXISTENCE OF CONVICTION BY A PREPONDERANCE FOR CRIMINAL SENTENCE PURPOSES, AT LEAST ABSENT SPECIFIC CHALLENGE
United States. v. Martinez-Jimenez, ___ F.3d ___, 2006 WL 2789865 (9th Cir. Sept. 29, 2006) (NCIC report is sufficiently reliable to be used to establish existence of criminal conviction, for purposes of increasing criminal history category for criminal sentence, at least where no evidence of inaccuracy of such reports has been presented); accord, United States v. Urbina-Mejia, 450 F.3d 838 (8th Cir. 2006); cf. United States v. McDonald, 606 F.2d 552, 553-54 (5th Cir.
POST CON RELIEF - STATE REHABILITATIVE RELIEF - STATE EXPUNGEMENT STATUTE DOES NOT HAVE TO BE EQUIVALENT TO FFOA TO ELIMINATE IMMIGRATION CONSEQUENCES OF CONVICTION
Under Garberding v. INS, 30 F.3d 1187, 1190 (9th Cir. 1994), the state expungement statute does not have to be identical to the FFOA: "We rejected this narrow approach in Garberding v. INS, 30 F.3d 1187, 1190 (9th Cir. 1994). Garberding involved Montana's expungement statute, which was not limited to first-time simple drug possession offenses but allowed expungement of a broad range of more serious offenses. Id. at 1189.
AGGRAVATED FELONY - SEXUAL ABUSE OF A MINOR - STATUTORY RAPE
There is currently a conflict in the Ninth Circuit between Afridi v. Gonzales, 442 F.3d 1212 (9th Cir. Apr. 4, 2006) (California misdemeanor conviction of unlawful sexual intercourse with a minor, in violation of Penal Code 261.5(c), constituted sexual abuse of a minor aggravated felony under INA 101(a)(43)(A), 8 U.S.C.
RELIEF - WAIVERS - 212(C) RELIEF - NONCITIZEN WAS NOT ELIGIBLE FOR 212(C) RELIEF BECAUSE HIS PLEA WAS ENTERED A MONTH AFTER AEDPA BECAME EFFECTIVE, AND BECAUSE HE WAS NOT ELIGIBLE FOR 212(C) RELIEF AT THE TIME OF THE PLEA
Cruz-Bucheli v. Gonzales, 463 F.3d 105 (1st Cir. Sept. 22, 2006) (per curiam) (Florida conviction of attempted trafficking in a controlled substance, i.e., cocaine, constituted aggravated felony, disqualifying noncitizen from eligibility for relief under former INA 212(c), because when noncitizen entered into his plea agreement on May 23, 1996, he was no longer eligible for 212(c) relief because AEDPA had already been effective for one month).
POST CON RELIEF - NEW YORK - APPEAL - DEPORTED DEFENDANT UNAVAILABLE TO OBEY MANDATE OF COURT SO APPEAL DISMISSED
People v. Diaz, ___ N.Y.2d ___ (Ct. App. Sept. 19, 2006) (appeal dismissed without prejudice as, although defendant has been involuntarily deported, he is nevertheless unavailable to obey the mandate of the court).
http://caselaw.lp.findlaw.com/data/ny/cases/app/mot881mem06.pdf
POST CON RELIEF - FEDERAL - HABEAS - STATUTE OF LIMITATIONS -- EQUITABLE TOLLING - LACK OF ADEQUATE LAW LIBRARY
Roy v. Lampert, ___ F.3d ___ (9th Cir. Sept. 22, 2006) (federal habeas petitions dismissed as untimely by district court remanded for evidentiary hearing on equitable tolling claims where petitioners made sufficient allegations that they pursued their claims diligently and faced extraordinary circumstances once they were transferred to an Arizona prison facility which allegedly had a woefully deficient law library. http://caselaw.lp.findlaw.com/data2/circs/9th/0435514p.pdf
POST CON - APPEAL - WAIVER OF PRE-PLEA ISSUES BY ENTRY OF PLEA
United States v. Castillo, ___ F.3d ___ (9th Cir. Sept. 22, 2006) (appeal from conviction by guilty plea for being an illegal alien in possession of a firearm dismissed where defendant's entry of an unconditional guilty plea deprived the appeals court of jurisdiction to consider his pre-plea constitutional claims, and that jurisdictional defect is not waivable by the government).
http://caselaw.lp.findlaw.com/data2/circs/9th/0530401p.pdf
AGGRAVATED FELONY - EFFECTIVE DATE - RETROACTIVE EXPANSION OF DEFINITION IS LAWFUL
Chan v. Gantner, ___ F.3d ___, 2006 WL 2686852 (2d Cir. Sept. 20, 2006) (1996 INA amendments that expanded the class of aggravated felonies to include conspiracy to smuggle noncitizens apply retroactively).
AGGRAVATED FELONY - IMMIGRATION CONSEQUENCES - GOOD MORAL CHARACTER - STATUTORY BAR
Chan v. Gantner, 464 F.3d 289 (2d Cir. Sept. 20, 2006) (1993 conviction of conspiracy to smuggle aliens constituted aggravated felony, which statutorily precluded noncitizen from establishing good moral character for the purposes of seeking naturalized citizenship under 8 U.S.C. 1427).
RELIEF - 212(C) RELIEF - GRANT OF 212(C) RELIEF DID NOT ELIMINATE AGGRAVATED FELONY CONVICTION AS A STATUTORY BAR TO SHOWING GMC
Chan v. Gantner, 464 F.3d 289 (2d Cir. Sept. 20, 2006) (waiver of deportation granted under former INA 212(c) does not remove aggravated felony conviction from consideration as a statutory bar to showing good moral character for purposes of eligibility to obtain naturalized citizenship under 8 U.S.C. 1427).
