POST CON - TENNESSEE - CORAM NOBIS
State v. Vidales, 2005 Tenn. Crim. App. LEXIS 1100 (October 7, 2005) ("A writ of error coram nobis lies "for subsequently or newly discovered evidence relating to matters which were litigated at the trial if the judge determines that such evidence may have resulted in a different judgment, had it been presented at the trial." T.C.A. 40-26-105; State v. Hart, 911 S.W.2d 371, 374 (Tenn. Crim. App. 1995).").
HABEAS CORPUS - FEDERAL - DISMISSING MIXED PETITION
Jefferson v. Budge, 419 F.3d 1013 (9th Cir. Aug. 16, 2005) (district court erred in dismissing dismiss mixed habeas petition without first offering petitioner the options provided in Rose v. Lundy, 455 U.S. 509 (1982) (choice of exhausting his unexhausted claims by returning to state court, or abandoning those claims and pursuing the remaining exhausted claims in federal court)).
APPEALS - FEDERAL - CHALLENGE TO SUFFICIENCY OF INDICTMENT
United States v. Bird, 359 F.3d 1185 (9th Cir. March 3, 2004) (dismissing appeal challenging whether indictment alleges sufficient facts to state an offense because such challenge must await final judgment after trial; court refused to treat appeal as mandamus, since trial court did not clearly err) Use Note: Mandamus appears to be the appropriate vehicle for redress if indictment is fatally flawed.
POST CON RELIEF - APPEAL - OUT OF TIME APPEAL
Johnson v. United States, 362 F.3d 636 (9th Cir. April 2, 2004) (second petition brought to challenge sentence not barred under "successive rule" by first habeas petition, brought to challenge counsel's failure to file notice of appeal).
POST CON RELIEF - APPEAL - OUT OF TIME APPEAL
Johnson v. United States, __ F.3d __ (9th Cir. April 2, 2004) (First habeas petition, brought only to challenge trial counsel failure to file notice of appeal, did not bar second "successive" petition challenging petitioner's sentence; successful 2255 petition, utilized to obtain out-of-time appeal, does not render subsequent collateral challenge "second" or "successive" under AEDPA).
http://caselaw.lp.findlaw.com/data2/circs/9th/0116947p.pdf
POST CON RELIEF - FEDERAL - APPEALS - WAIVER OF APPEAL
United States v. Speelman, ___ F.3d ___ (9th Cir. Dec. 16, 2005) (stipulation in plea agreement that defendant "knowingly, expressly and voluntarily waives the right to contest either the conviction or the sentence or the application of the sentencing guidelines in any post-conviction proceeding including any proceeding under 28 U.S.C. section 2255" held insufficient to show that he waived his right to directly appeal his sentence, since: "In common legal usage, the term 'post conviction proceeding' refers to a collateral challenge to a judgment or sentence, as opposed to a direct appeal.").
POST CON RELIEF - FEDERAL - APPEAL - WAIVER OF APPEAL VALID BECAUSE PLEA VALID
United States v. Pacheco-Navarette, ___ F.3d ___, 2005 WL 3502055 (9th Cir. Dec. 23, 2005) (appeals from convictions and sentences following guilty pleas to being noncitizens in possession of a firearm are dismissed for lack of jurisdiction where appeal waivers were not invalid since nothing about the plea process was unlawful).
http://caselaw.lp.findlaw.com/data2/circs/9th/0410396p.pdf
POST CON RELIEF - APPEAL - WAIVER OF APPEAL IN PLEA AGREEMENT DOES NOT BAR COLLATERAL ATTACK RAISING ERRORS IN MEANS BY WHICH PLEA AGREEMENT WAS REACHED
Zhang v. United States, ___ F.Supp.2d ___, 2005 WL 3086840, 2005 U.S. Dist. LEXIS 28404 (E.D. N.Y. Nov. 18, 2005) (waiver of appeal in plea agreement does not bar collateral attack raising errors in means by which plea agreement was reached: "'There is no general bar to a waiver of collateral attack rights in a plea agreement.' Frederick v. Warden, Lewisburg Correctional Facility, 308 F.3d 192, 195 (2d Cir. 2002) (citing Garcia-Santos v. United States, 273 F.3d 506, 509 (2d Cir. 2001)).
POST CON RELIEF - DIRECT APPEAL - WAIVER OF APPEAL POST CON RELIEF - GROUNDS - GUILTY PLEA WAIVES GROUNDS
United States v. Lopez-Armenta, __ F.3d __ (9th Cir. March 10, 2005) (defendant's challenge to the district court's denial of his motion to suppress is dismissed since he waived his right to appeal pretrial constitutional defects when he entered an unconditional guilty plea).
http://caselaw.lp.findlaw.com/data2/circs/9th/0410081p.pdf
POST CON RELIEF - DIRECT APPEAL - WAIVER OF APPEAL - WAIVER INEFFECTIVE SINCE INEFFECTIVE ASSISTANCE INVALIDATED PLEA AGREEMENT POST CON RELIEF - DIRECT APPEAL -- CLAIM OF INEFFECTIVE ASSISTANCE PROPERLY RAISED ON DIRECT APPEAL AFTER APPEAL WAIVER
United States v. Jeronimo, __ F.3d __ (9th Cir. Feb. 23, 2005) Court lacks jurisdiction to entertain appeals where there is a valid and enforceable waiver of right to appeal. United States v. Vences, 169 F.3d 611, 613 (9th Cir. 1999). Appellate court reviews de novo whether defendant has waived right to appeal by entering into plea agreement and validity of such a waiver. United States v. Ventre, 338 F.3d 1047, 1051 (9th Cir. 2003).