Book updates to PCN

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).

jurisdiction: 
Ninth Circuit

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

jurisdiction: 
Ninth Circuit

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.").

jurisdiction: 
Ninth Circuit

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

jurisdiction: 
Ninth Circuit

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)).

jurisdiction: 
Lower Courts of Second Circuit

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

jurisdiction: 
Ninth Circuit

CONVICTION - RESPONDENT MAY NOT ATTACK VALIDITY OF CONVICTION IN IMMIGRATION PROCEEDINGS, INCLUDING 2241 IMMIGRATION HABEAS

Resendiz v. Kovensky, ___ F.3d ___, 2005 WL 1501495 (9th Cir. June 27, 2005) (the Antiterrorism and Effective Death Penalty Act and the Illegal Immigration Reform and Immigrant Responsibility Act do not change the rule that a petitioner may not collaterally attack his state court conviction in a 28 U.S.C. 2241 petition against the INS).
http://caselaw.lp.findlaw.com/data2/circs/9th/0355136p.pdf

jurisdiction: 
Ninth Circuit

POST CONVICTION RELIEF - FEDERAL - EXPUNGEMENT NOT AVAILABLE AS A VEHICLE FOR POST CON RELIEF

United States v. Crowell, ___ F.3d ___ (9th Cir. June 30, 2004) (federal proceedings for expungement of federal convictions are unavailable for the purpose of collaterally attacking the validity of the conviction).
http://caselaw.lp.findlaw.com/data2/circs/9th/0330041p.pdf

jurisdiction: 
Ninth Circuit

EX POST FACTO - CONTROLLING DATE - LAST DATE OF THE OFFENSE ALLEGED IN THE CHARGE

United States v. Broderson, 67 F.3d 452 (2d Cir. 1995); U.S.S.G. 1B1.11(b), comment (n.2) (for Ex Post Facto purposes, controlling date is the last date of the offense, as alleged in indictment).

jurisdiction: 
Second Circuit

POST CON - FEDERAL - RULE 33 MOTION TO VACATE TIME LIMITS

Eberhart v. United States, ___ U.S. ___ (October 31, 2005) (Federal Rule of Criminal Procedure 33, which allows a district court to vacate any judgment and grant a new trial if the interest of justice so requires, is an inflexible claim-processing rule, and the Seventh Circuit incorrectly construed its time limitations as jurisdictional).
http://laws.findlaw.com/us/000/04-9949.html

jurisdiction: 
US Supreme Ct

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