Douglas Miller was convicted of aggravated murder and sentenced to thirty years to life. Under Oregon law he applied for early parole after twenty years. It was denied and he filed a habeas in Federal court after exhausting his state court remedies. The Ninth Circuit denied his appeal.

Following Ninth Circuit precedent it ruled that there is no Federal due process right to parole but that the Federal constitution guarantees that states will follow state derived due process rights. Thus the first question is whether Oregon law guarantees the right to early consideration of parole. Comparing the Oregon law to the laws of California, Montana, and Idaho where the Ninth Circuit has previously found a right to parole, it found that Oregon guarantees a liberty right to parole.

Under Oregon law any inmate with an indeterminate sentence can apply after spending twenty years for early parole. But first the inmate must show by the preponderance of the evidence that he/she is likely to bee rehabilitated within a reasonable amount of time. The State of Oregon argued that by putting the burden on the inmate the state denied early parole as a matter of right. But the Ninth Circuit found that in Oregon. like Montana, Idaho, and California, an inmate has a liberty right to parole if certain precursors are met. In the case of Oregon the precursor is that the inmate is rehabilitatable within a reasonable amount of time.

But the Ninth Circuit upheld the Oregon decision not to grant parole. Miller argued, following Ninth Circuit precedent that the Oregon decision is not supported by “some evidence.” However the Ninth Circuit decision holding that “some evidence” is necessary has been reversed by the Supreme Court which held that it is only necessary for the state to show that it complied with procedural due process. In Swarthout v. Cooke the Supreme Court held that it was only necessary to show that the inmate had a fair hearing and there was no evidence that Miller did not have a fair hearing. As a result the parole denial was upheld.

The Department of Justice is urging the Supreme Court to take up the Fourth Amendment issue of Global Positioning Systems (GPS). Various courts have ruled on the constitutionality of the use of GPS without getting a warrant and rulings have come down on both sides of the issue,

The Ninth and the Seventh Circuits have ruled it constitutional while the D. C. Circuit found it unconstitutional. Courts in New York, Massachusetts, Washington and Delaware have found it unconstitutional while courts in Ohio and Virginia have approved of the practice.

The Justice Department is challenging a D. C. Circuit opinion that overturned the conviction of Antoine Jones on cocaine trafficking charges after GPS evidence played a mayor role in his conviction. The DOJ argues that since law enforcement officers could have followed Jones as he traveled on the public roads he could not have had a legitimate expectation of privacy. The Fourth Amendment only applies to individuals who have an expectation of privacy that is recognized by society.

However his attorneys argue that using a GPS device on Jones’ Jeep Cherokee for over a month and reporting his whereabouts every seven seconds was a tremendous invasion of his privacy and is prohibited by the Fourth Amendment.

The Courts that have upheld warrantless GPS searches have cited the 1983 Supreme Court decision, United States v. Knotts in which the Supreme Court upheld the conviction of a man in a methamphetamine case after the wholesaler of necessary chemicals placed a beeper in a barrel of chemicals. The barrel was placed in a codefendant’s vehicle and followed by agents to the suspect’s residence.

Knotts has been cited by the courts in upholding warrantless GPS decisions. Most of the Courts have said that if it was constitutional to follow a car with a beeper, it is constitutional to keep track of a vehicle with a GPS deviced placed under the car’s carriage while it is either parked on the street or in the defendant’s driveway.

But while the lower courts do not have the power to reconsider Knotts the Supreme Court does. It is a decision that may have had some validity 30 years ago but with the technological advances in the last 30 years allowing greater and greater invasions into citizen’s privacy it is time for the Supreme Court to reconsider the decision.

In Gant v, Arizona the Supreme Court ruled that without probable cause to search a vehicle an automobile could not be searched in a search incident to a legal arrest once police removed the occupants from the car.

Yesterday the Ninth Circuit upheld the search of a vehicle and of folded up money found in the car based upon probable cause. Los Angeles County Sheriff Deputy Jeffey Dokie stopped a car driven by Sandra Vera for having an expired registration, There were two passengers in the car, Michael Smith and Shawn Ewing. Smith was on parole. After finding out that Smith was on parole Doke noticed folded up currency in the weatherstripping of the right front door. Ewing was acting nervous and he talked fast indicating that he was on drugs. Doke thought that the attempt to hide the money was indicative of a drug courier. Doke decided to search the car and he seized and unfolded the currency. Upon examination he determined that the money was counterfeit. Ewing admitted to manufacturing the money.

After he was arrested he moved to suppress the money. Specifically he wanted to suppress the officer’s observations after he unfolded the money. The court found that while he did not have a privacy interest in the vehicle and therefore could not move to suppress evidence found in the car, he did have a privacy interest in the money and therefore had standing to move to suppress the money. He argued that while the officer may have had probable cause to search the vehicle, the unfolding of the money was a separate search requiring a separate finding of probable cause.

However the court found that Ewing’s nervousness, the attempt to hide the money, and Ewing’s apparent drug intoxication gave the officer probable cause to search the vehicle. Since the money was the subject of the search, probable cause to search the vehicle included probable cause to unfold the money and search it. A separate finding of probable cause was not needed and therefore the trial court was correct in refusing to suppress the evidence.

The Supreme Court reversed another Ninth Circuit grant of habeas corpus. In Cullen v. Pinholster the Supreme Court not only denied Pinholster’s writ of habeas corpus but it also severely limited the type of evidence a Federal Court can consider in habeas corpus proceedings reviewing the denial of habeas corpus by state courts.

The Court ruled that in reviewing state court actions Federal courts can only consider the evidence heard by the state court.

Pinholster was convicted of first degree murder in California and sentenced to death. In the penalty phase of his trial his attorneys called only his mother as a witness who testified about his troubled childhood. His lawyers consulted with a psychiatrist but decided not to call him when he said that Pinholster was not psychotic.

On habeas he argued incompetency of counsel due to his lawyer’s failure to follow-up on the psychiatric report. It was denied by the state courts including the California Supreme Court.

According to the Supreme Court the job of a Federal Court reviewing a state court action is not to seek the truth. Rather it is to guarantee the petitioner received due process in the state courts. Specifically if the state court decided the issue on the merits, Federal courts are limited to reversing the state court action if it:

“(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

“(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.”

Furthermore, since the goal is to insure that the court below used used the proper process to rule on the merits the Supreme Court ruled that the Federal Courts are limited to considering the evidence that was presented to the State Courts. Pinholster presented additional experts and evidence of trial counsel’s incompetence to the Federal Courts but the Supreme Court ruled that this evidence was inadmissible since it was not presented to the state courts.

One difference between appeals and writs of habeas corpus is that appeals cover matters that happened in the courtroom. Thus since there is a court reporter’s transcript of the matter there is no reason to allow evidence on appeal. The questions on appeal are legal questions. They are settled by consideration of brief written generally by attorneys giving legal reasons that errors were made in a trial court.

On the other hand writs of habeas corpus generally consider matters, such as incompetence of counsel that may not be evident from the transcripts and are settled by judges after hearing evidence. Thus to ask a trial court (eg. the Federal District Courts) to rule on a habeas without taking evidence is an anomaly and is contrary to the way the common law system operates.

The Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”) prevents governmental bodies from placing a substantial burden on an individual’s religious activity by its land use policy or in institutions including jails and pretrial detention centers built with Federal money.

The statute reads in pertinent part:

(1) GENERAL RULE- No government shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution, unless the government demonstrates that imposition of the burden on that person, assembly, or institution–
(A) is in furtherance of a compelling governmental interest; and
(B) is the least restrictive means of furthering that compelling governmental interest.

Souhair Khatib and her husband plead guilty to misdemeanor welfare fraud in Orange County, California. They were sentenced to three years probation and thirty days of community service. As the period to complete the community service was ending, they went back to court to request an extension of time. For an unstated reason the judge was angry and revoked their probation. They were immediately incarcerated in the Santa Ana Courthouse’s holding facility. Khatib, a practicing Muslim, was forced to remove her hijab. This caused her considerable anxiety, aggravation, and embarrassment. Later in the day the judge called Khatib back into the courtroom, reinstated her probation and extended the time to complete the community service.

She sued in Federal Court. Orange County moved to dismiss the case on the grounds that the holding facility was not an institution under the RLUIPA. The District Court granted the motion and dismissed the case. The three judge appellate panel upheld the dismissal but an en banc decision unanimously reinstated the matter.

The court held that the holding facility was both a pretrial detention center and a jail. Since neither “pretrial detention center” or “jail” is defined in the statute the Court looked to the ordinary and common meanings of the terms. The court held that pretrial detention is simply the “holding of a defendant before trial on criminal charges.” Since the holding facility confines people waiting for court appearance and for trial it meets the definition. The court quotes Webster’s as defining a jail as a “building for the confinement of persons held in lawful custody (as for minor offenses or some future judicial proceeding).” Orange County describes the holding facility as a “secure detention facility . . . for the confinement of persons solely for the purpose of a court appearance.” Using this description there is no question that the facility is a jail.

Finding that the facility is an institution under the RLUIPA the Ninth Circuit remanded the matter to the District Court with orders to reinstate the action. But the next question for the court will be does prohibiting the wearing of the hijab promote a compelling government interest. Among the issues will be does the hijab create a security problem? Can it be used in an assault or a suicide attempt? But we can note that both Federal and state prisons allow women to wear hijabs. The county will argue that the temporary nature confinement in the holding facility creates problems not found in prisons.

As part of the Alaskan corruption investigation involving former Senator Ted Stevens, the government prosecuted State Representative Victor Kohring. He was convicted of attempted extortion and bribery.

The Ninth Circuit reversed Kohring’s conviction on Brady grounds, Friday, similar to those used to dismiss the charges against Stevens.

After Steven’s conviction and while Kohring’s case was on appeal the government disclosed significant documents that should have been disclosed prior to Stevens’ trial. At that point Kohring made a Brady motion and received thousands of pages of material most of which should have been disclosed prior to trial.

The documents included “FBI 302 reports,” undated and dated handwritten notes from interviews with Allen and Smith, e-mails, various memoranda, and police reports. They involved evidence that that Bill Allen who’s oil field services company, VECO, was attempting to get legislation through the legislature, was being investigated for having sex with minors. While this might not in and of itself been particularly relevant he attempted to suborn perjury and he attempted to hide a witness in the investigation. This affects his credibility and opens him up to significant cross examination. Other documents show that Allen and his colleague, Rick Smith, gave significantly different numbers as to the amount of money given to Kohring. The difference in the amounts would have given additional credibility to Kohring’s testimony and the jury may have found that the money was given for legitimate reasons if it believed the lower figures given to agents during the investigation.

In Brady v. Maryland the Supreme Court held that the government had to provide favorable, material evidence to the defense. To show a violation of Brady one must show “(1) the evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; (2) that evidence must have been suppressed by the State, either willfully or inadvertently; and (3) prejudice must have ensued.” In reversing the conviction the Ninth Circuit found that a Brady violation occurred. There is no question that the government suppressed evidence and that a significant amount of the evidence was favorable to Kohring. Furthermore he was prejudiced in that the jury could have found him not guilty if it had seen some of the suppressed evidence.

Cesar Julio Salazar-Mojica was convicted of a felony assault with a deadly weapon in California in 1980. He was placed on probation. The probation was revoked in 1982 and he was sent to prison. When he was released from prison he was deported to Mexico.

On June 5, 2008 ¹he was arrested near the border and charged with returning to the United States after being deported in violation of 8 U.S.C. § 1326. While awaiting trial on the Federal charge, Salazar-Mojica applied to the state court to reduce his felony charge to a misdemeanor. The application was granted pursuant to California Penal Code Section 17(b). Never the less the Federal Court in determining the guidelines on the Section 1326 charge gave him a 16 level enhancement for a prior felony conviction involving violence. ²

Salazar-Mojica’s guideline range was for between 84 and 105 months. He was sentenced to 66 months.

The Ninth Circuit joined other circuits in finding that the reduction of a felony to a misdemeanor does not affect the enhancement. The crucial time according to the appellate court is the time of the deportation. If it is a felony at the time of the deportation it remains a felony for the purposes of the enhancement.

A Federal Court will not review a state denial of a writ of habeas corpus if the state ruling is based upon an independent state ground that is independent of the federal question and adequate to support the judgment.To be considered an adequate state ground the rule must be “firmly established and regularly followed.”

Walker, Warden et al v. Martin decided yesterday by the Supreme Court builds upon Beard v. Kindler, decided last year. The Supreme Court held in Beard that a rule can be “firmly established and regularly followed” even if it gives judges a certain amount of discretion in applying the rule.

The question facing the court in Walker was whether the California rule defining timeliness for filing a writ of habeas corpus qualifies as “firmly established and regularly followed.” Unlike most other jurisdictions, California does not set a specific time period in which writs of habeas corpus must be filed in non-capital cases. Rather California requires that they be filed “as promptly as the circumstances allow.” Furthermore, the California Supreme Court sometimes denies a writ on its merits even if it is untimely. However, as the Supreme Court pointed out in Kindler the mere fact that a court has discretion does not mean that the rule is not regularly followed. The rule can regularly give the court discretion. And that is what the Supreme Court found in Walker. It found that the California courts regularly followed the rule giving the court discretion and there was no claim that the discretion was used unwisely in Walker.

In Walker the defendant raised the issue of incompetence of counsel only in its second state writ which occurred five years after the defendant had been found guilty. The state court found that under these conditions and in face of the fact that the defendant did not provide any reason for its late filing that the writ was untimely. The District Court agreed but the Ninth Circuit reversed the District Court. For the fourth time this year the Supreme Court reversed a Ninth Circuit grant of habeas corpus holding that the California ruled provided an unreviewable independent ground. It reinstated the state court decision finding the petition for a writ of habeas corpus untimely.

In United States v. Krupa the Ninth Circuit had to answer the question of what constitutes probable cause to search computers for child porn. Their answer is that it doesn’t take much. The facts of the case is that the mother of two young children got nervous when her kids were not on the scheduled train returning from a visit to their father who was a sergeant stationed at Edwards Air Force Base.

She called the military police. they went to the sergeant’s on base residence and found the kids under the supervision of a civilian, Peter Krupa. Her husband was in the Philippines, scheduled to return in nine days. ¹ They found the house in considerable disarray and they found thirteen computer towers in the house.

They requested and received permission to search the computers. The officer assigned to the job became ill after finding one picture that appeared to be a nude girl between 15 and 17, with the caption “www.nude-teens.com.” Before the officer got well Velasco and Krupa withdrew the consent.

The government then got a search warrant to complete the search of the computers. The Ninth Circuit upheld the search.

Previously the Ninth Circuit had ruled that one picture of a nude teenager was insufficient to find probable cause. After all many works of art show nude teenagers. ² Furthermore pictures of nudes can only be considered porn if they are lascivious and there was no evidence of that. None of the other “facts” are relevant since they do not make it more likely that a criminal act occurred.

Perhaps the conservative position is a reaction to the Supreme Court’s reversal of five consecutive Ninth Circuit opinions over the past month. Hopefully the case will be considered en banc and reversed. As the dissent points out the affidavit supporting the request for a search warrant was totally lacking any evidence of criminal behavior

The Supreme Court, Friday, for the third time in the last ten days reversed a grant of habeas corpus by the Ninth Circuit Court of Appeals. It ruled that the Ninth Circuit cannot use habeas corpus to enforce a state given right, not recognized under Federal law. The Federal habeas statute prohibits Federal Courts from granting writs of habeas corpus for violations of state law that do not guarantee Federal liberty interests supported by Supreme Court decisions. It states that the Supreme Court can grant writs of habeas corpus:

only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States

The Supreme Court has not recognized a Constitutional substantive right to parole. It has ruled that if a states grants inmates a right to parole the state must procedurally provide for the inmate to be heard and the state must provide a statement of the reasons why parole is denied.

California court have ruled that in order to deny parole the state must have “some evidence” that the inmate is unsuitable for parole. Furthermore the state courts have rule that the some evidence standard must be met by current unsuitability. It is insufficient for the parole board or the governor to make a finding of unsuitability based purely on the gravity of the crime.

Damon Cooke was convicted of attempted first degree murder in 1991 and Elijah Clay was convicted of first degree murder in 1978 in California state courts. Both were given indeterminate sentences of seven years to life.

Damon Cooke and Elijay Clay filed writs in Federal Court challenging the Parole Board’s finding that there was some evidence that they were unsuitable. The Ninth Circuit granted both writs and the State appealed to the Supreme Court. The Supreme Court in its decision Friday ruled that the Ninth Circuit decisions must be reversed because there is no federal substantive right to parole and therefore Federal courts cannot review state denials of parole on the merits.