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U.S. v. Jennings, No. 06-30190 (2-4-08). Does the rationale behind the whole categorization of prior convictions "elude" you? Blame Taylor, Shepard, and progeny. Here, defendant was convicted of being a prohibited possessor of a firearm. He has three priors, and was AACA-fied (yes, a new term just coined). On appeal, the 9th (Tashima joined by Berzon) affirmed the denial of suppression (defendant initiated a little chat with ATF about a missing serial number); however, the 9th vacated and remanded the sentence because one of the Washington State's priors, attempted eluding of a police car, is not categorically a violent felony under ACCA. The reason was that the state prior of eluding lacked any element of actual or potential risk of harm to another or a mental state of such. Because the offense lacked this mental state, ACCA's catch-all of "conduct that presents potential risk of physical injury to another" is not applicable. Dissenting, O'Scannlain argues that the Supremes have effectively overruled 9th Cir. precedent on this issue in Duenas-Alvarez, 127 S.Ct 815 (2007) and James, 127 S. Ct. 1586 (2007). These two cases interpret ACCA and hold that conduct falling outside a generic definition has to be realistic and not metaphysical. O'Scannlain believes that a risk was present here and it is metaphysical to believe otherwise. He also argues that previous 9th precedent (Kelly, 422 F.3d at 893) is wrongly decided in that it posits an "all or nothing" approach to the categorical analysis and is at odds with all the other circuits.

Gonzalez v. Knowles, No. 06-17054 (2-6-08). The 9th (Cowen -- visiting -- joined by Smith over a dissent by Hawkins) affirms the denial of a habeas petition. The petitioner was serving a 16-year child sex sentence in California. He had received a stiffer sentence but his appointed lawyer on appeal got a new sentencing. Petitioner sought to have the lawyer appointed for the resentencing because the lawyer knew the case, and had worked up extensive mitigation. The state trial court said "that's not how we do things around here" and appointed a lawyer with no familiarity with the case. Oh yes, the lawyer who sought appointment after appeal was willing to work for the county's appointed rate. No such luck. The Sixth Amendment gives counsel, but not counsel of choice, and here the judge's decision was not unconstitutional. The new lawyer received a lengthy letter from the old one, detailing what mitigation was out there. The new lawyer did nothing. The courts all said that was "fine," and if there was something to be done, well, it was harmless. Dissenting, Hawkins wonders why a policy of "that's not how we do it around here" should trump the advantages of an experienced counsel familiar with the case. Hawkins stressed that an evidentiary hearing should have been held on the IAC claim.

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