NINTH CIRCUIT COURT NEWS-2003-27
Willamette Law Online - Willamette University College of Law
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>From 06/24/03 to 06/01/03, the Ninth Circuit Court
of
Appeals decided the 20 cases summarized below.
In this issue:
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(1) ADMINISTRATIVE
LAW / NOTICE AND COMMENT REQUIREMENTS
(2) ADMINISTRATIVE
LAW / WOBBLER STATUTE
(3) CIVIL PROCEDURE
/ IN PERSONAM JURISDICTION
(4) CIVIL PROCEDURE
/ FEDERAL SUBJECT MATTER JURISDICTION
(5) CIVIL RIGHTS /
42 U.S.C. SEC. 1983
(6) CRIMINAL LAW /
APPRENDI DOCTRINE
(7) CRIMINAL LAW /
HABEAS CORPUS RELIEF
(8) CRIMINAL LAW /
SEARCH WARRANTS
(9) DUE PROCESS / DENIAL
OF PAROLE
(10) FAVORABLE TERMINATION
RULE / 42 U.S.C. SEC. 1983
(11) FOURTH AMENDMENT
/ QUALIFIED IMMUNITY
(12) HABEAS CORPUS
(13) HABEAS CORPUS
/ INCOMPETENCY
(14) IMMIGRATION LAW
/ HABEAS CORPUS
(15) LEGAL IMMIGRATION
FAMILY EQUITY ACT (LIFE ACT)
(16) MAGISTRATE JURISDICTION
(17) PROPERTY LAW /
42 U.S.C. SEC. 1983
(18) SENTENCING / ABERRANT
BEHAVIOR
(19) SUBJECT MATTER
JURISDICTION / FEDERAL JUVENILE DELINQUENCY ACT
(20) WAIVER OF APPELLATE
RIGHTS
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(1) Hemp Industries Assoc. v. DEA
No. 01-71662 (06/30/03)
Before Circuit Judges Schroeder, B. Fletcher, and
Kozinski
http://caselaw.lp.findlaw.com/data2/circs/9th/0171662p.pdf
ADMINISTRATIVE LAW / NOTICE AND COMMENT REQUIREMENTS
Opinion (B. Fletcher): The Drug Enforcement
Administration (DEA) created
a rule that banned all naturally occurring tetrahydrocannabinols
(THC),
the active ingredient in marijuana. The rule
also included the THC found
in hemp seed and oil. The Hemp Industries Association
(Association) is a
group of companies that purchases and then sells
consumable products
containing sterilized hemp seeds and oil. The
Association filed a
petition for review challenging the validity of the
DEA rule, contending
that the rule is a legislative rule and as such is
subject to the notice
and comment procedures required by the Administrative
Procedures Act
(APA). The DEA contends that the rule
is an interpretive rule and does
not fall under the APA. The Ninth Circuit held
that the congressional
legislative history shows that the definition of
marijuana specifically
excludes hemp oil and sterilized seeds. Additionally,
the DEA's previous
rule regarding the banning of THC only included synthetic
THC and not the
naturally occurring amounts of THC in hemp oil and
sterilized seeds and
that this rule was a
legislative rule. The Ninth Circuit held that
because the DEA's new
rule amends the old legislative rule, the new rule
is also legislative
and therefore subject to the APA. GRANTED.
[Summarized by Kevin Clark]
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(2) Garcia-Lopez v. Ashcroft
No. 02-70200 (06/26/03)
Before Circuit Judges Lay, Ferguson, and Gould
http://caselaw.lp.findlaw.com/data2/circs/9th/0270200p.pdf
ADMINISTRATIVE LAW / WOBBLER STATUTE
Opinion (Ferguson): Garcia-Lopez appeals an order
of deportation entered
by the Board of Immigration Appeals (BIA), contending
they erred in
determining he was ineligible for suspension of deportation
under the
Immigration and Nationality Act's "petty offense"
exception. The BIA
determined Garcia-Lopez met the requirement of deportation
having
admitted to grand theft under a California "Wobbler
Statute." A "Wobbler
Statute" is one in which the offense may be treated
as either a
misdemeanor or a felony. The Ninth Circuit determined
since California
had declared the offense to be a misdemeanor, that
determination is
binding on the subsequent immigration proceedings
of the BIA. REVERSED.
[Summarized by Bryan Maroney]
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(3) U.S. v. Moreno-Morillo
No. 01-50293 (06/25/03)
Before Circuit Judges Hug, Jr., Brunetti, and O'Scannlain
http://caselaw.findlaw.com/data2/circs/9th/0150293p.pdf
CIVIL PROCEDURE / IN PERSONAM JURISDICTION
Opinion (O'Scannlain): The District Court convicted
Moreno et. al, for
violations of 46 U.S.C. sec. 1903, the Maritime Drug
Law Enforcement Act
(MDLEA) (possession of cocaine with intent to distribute).
On appeal,
Moreno raised two constitutional challenges arguing
that Congress lacked
the authority to pass the MDLEA and that the statute
violates the Fifth
and Sixth Amendments. The Ninth Circuit rejected
the first challenge,
holding Article I, Section 8, Clause 10 of the U.S.
Constitution,
empowered Congress to enact the MDLEA. Because the
Constitution granted
Congress power through clause 10, not the Commerce
Clause, the Ninth
Circuit held, no finding of a "nexus between the
activities proscribed
by the MDLEA and interstate or foreign commerce"
is necessary. Second,
since the defendant's all entered into plea agreements,
the Ninth
Circuit held, "any claim that the MDLEA violates
the Fifth and Sixth
Amendments has not been properly preserved under
the terms of the plea
agreement. Accordingly, after finding the ship
upon which Moreno was
aboard subject to the jurisdiction of the United
States under 46 U.S.C.
sec. 1903 (c)(2)(C) (where the "claimed nation of
registry does not
affirmatively and unequivocally assert that the vessel
is of its
nationality"), the Ninth Circuit held that the district
court properly
exercised jurisdiction over the Defendants. AFFIRMED.
[Summarized by Justin Reiner]
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(4) Bianchi v. Rylaarsdam
No. 00-55585 (06/27/03)
Before Circuit Judges B. Fletcher, D. Nelson, and
McKeown
http://caselaw.lp.findlaw.com/data2/circs/9th/0055585p.pdf
CIVIL PROCEDURE / FEDERAL SUBJECT MATTER JURISDICTION
Opinion (McKeown): Bianchi sued Bank of America in
a California Superior
Court and lost. During post trial proceedings
over a series of motions
filed by Bianchi, Bank of America moved to disqualify
the judge who
denied the motion, but later voluntarily recused
himself. The case was
transferred to another Superior Court over which
Judge Rylaarsdam
presided at the time. Before any substantive
proceedings occurred,
Bianchi availed himself of an automatic statutory
disqualification of
Judge Rylaarsdam. Subsequently a third judge
denied Bianchi's post-trial
motions. Next, Bianchi appealed to California's
Court of Appeal and was
assigned to a panel that included Rylaarsdam, who
had been elevated to the
court during the intervening years. After Bianchi
lost on appeal, he
unsuccessfully petitioned the California Supreme
Court for review
objecting to Rylaarsdam's presence on the appellate
panel. Bianchi then
filed the present suit in federal court claiming
that a previously
disqualified trial judge sitting in judgment of the
same matter as an
appellate judge violated his due process rights.
The district court
granted Rylaarsdam's motion to dismiss for lack of
subject matter
jurisdiction and Bianchi appealed. The Ninth
Circuit concluded that
Bianchi's claim is barred by the Rooker-Feldman doctrine
which holds that
a federal court lacks subject matter jurisdiction
to review a claim that
is "inextricably intertwined" with a state court's
decision such that the
federal court is requested to provide the same remedy
the state court
denied. AFFIRMED.
[Summarized by Christian Malone]
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(5) Grant v. City of Long Beach
No. 01-56046 (06/27/03)
Before Circuit Judges Bright, Goodwin, and Tashima
http://caselaw.lp.findlaw.com/data2/circs/9th/0156046p.pdf
CIVIL RIGHTS / 42 U.S.C. SEC. 1983
Amended Order: The Ninth Circuit ordered the
opinion filed December 16,
2002 amended, and ordered the deletion of the last
sentence in the second
full paragraph of the original opinion. The
deleted sentenced read:
"Therefore, the district court properly submitted
the issue of qualified
immunity to the jury and entered judgment upon its
verdict." The Ninth
Circuit denied petitions for rehearing and rehearing
en banc. REHEARING
DENIED.
Opinion (Goodwin): Grant filed suit against the City
of Long Beach and
two police officers under 42 U.S.C. sec. 1983 for
false arrest and
imprisonment. The district court entered a
jury verdict in favor of
Grant and denied the officers' motion for judgment
as a matter of law.
The Ninth Circuit affirmed the district court's decision.
The Ninth
Circuit reasoned that there was enough evidence for
the jury's findings
with regard to the lack of probable cause the officers
had in arresting
Grant. The Ninth Circuit further reasoned that
the officers' arguments
failed under an objective test for qualified immunity.
The Ninth Circuit
stated that the officers' subjective belief they
had probable cause to
arrest Grant was insufficient for qualified immunity.
Therefore, the Ninth
Circuit held the district court did not abuse its
discretion by denying
the officers' motion for judgment as a matter of
law. AFFIRMED.
[Summarized by Kathryn Kellogg]
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(6) U.S. v. Villalobos
No. 01-30066 (06/27/03)
Before Circuit Judges Browning, B. Fletcher and Gould
http://caselaw.lp.findlaw.com/data2/circs/9th/0130066p.pdf
CRIMINAL LAW / APPRENDI DOCTRINE
Opinion (Browning): Villalobos pled guilty to
one count of conspiracy
to distribute heroin and stipulated that between
100-400 grams of heroin
were involved. Before sentencing, Villalobos
moved to withdraw his
plea, arguing that Apprendi v. New Jersey, 530 U.S.
466 (2000) had
changed the government's burden of proof as to drug
quantity and that
his pre-Apprendi plea was not knowing, intelligent,
and voluntary. The
district court denied the motion and sentenced Villalobos
to 60 months.
The Ninth Circuit held that the district court violated
Rule 11 by not
informing him of the nature of the charges against
him. Rule 11
requires that the court inform the defendant of the
nature of the charge
against him. Here, the Ninth Circuit held that
the error was not
harmless because the government failed to meet the
burden of establishing
that the record affirmatively demonstrates that the
defendant was aware of
the rights at issue when he entered his guilty plea
or that the district
court's Rule 11 error was simply minor or technical.
Villalobos' guilty
plea was not knowing, intelligent or voluntary because
he was not informed
that drug quantity was an element of his offense
to be proven beyond a
reasonable doubt, and the error affected Villalobos'
substantial rights
and was not harmless. Therefore, the district court
should have allowed
Villalobos to withdraw his plea. REVERSED and REMANDED.
[Summarized by Cassandra Dempsey]
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(7) Alcala v. Woodford
No. 01-99005 (06/27/03)
Before Circuit Judges W. Nelson, Wardlaw, and Fisher
http://caselaw.lp.findlaw.com/data2/circs/9th/0199005p.pdf
CRIMINAL LAW / HABEAS CORPUS RELIEF
Opinion (W. Nelson): Woodford, Warden of California's
San Quentin State
Prison (California), appealed the district court's
conditional grant of
habeas corpus relief to petitioner Alcala, who was
convicted of first
degree murder and was sentenced to death in 1979.
In 1986, due to an
erroneous admission of Alcala's prior offenses in
the first trial,
Alcala was granted a retrial by the California Supreme
Court, but the
jury again convicted him of first-degree murder and
sentenced him to
death. In 2001, the district court conditionally
granted federal habeas
corpus relief to Alcala, issuing a writ ordering
California
to release
him or grant him a new trial. The Ninth Circuit
determined that
Alcala's second trial suffered from cumulative errors
that had "a
substantial and injurious effect" on the jury's verdict
and deprived
Alcala of a fundamentally fair trial. The prosecutor
erroneously
admitted circumstantial evidence that permitted the
jury to draw a
connection between Alcala and the murder weapon,
but no physical
evidence could be linked to Alcala. Alcala's
defense counsel had been
constitutionally ineffective by deficiently presenting
Alcala's alibi,
by not preparing an impeachable witness for cross-examination,
and by
failing to conduct an investigation of the crime
scene. The trial court
prejudiced Alcala's defense by excluding certain
defense witnesses who
would have advanced Alcala's theory of third-party
culpability, and by
excluding expert testimony that would have discredited
the testimony of
the prosecutor's star witness. AFFIRMED.
[Summarized by Stacey Goodwin]
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(8) USA v. Wong
No. 02-10070 (06/26/03)
Before Circuit Judges Brunetti, Tashima, and Ezra,
District Judge
http://caselaw.lp.findlaw.com/data2/circs/9th/0210070p.pdf
CRIMINAL LAW / SEARCH WARRANTS
Opinion (Brunetti): Raymond Wong, having plead nolo
contendere to
possession of child pornography, appeals a denial
of a motion to suppress
evidence obtained pursuant to three search warrants
in connection with the
disappearance and murder of Wong's live-in girlfriend.
The District court
rejected Wong's claim that the search warrants lacked
probable cause and
specificity. The Ninth Circuit recognized probable
cause existed because
there was detailed evidence connecting Wong to his
girlfriend's
disappearance, and that information listed on the
warrant could easily be
located on the computer where the child pornography
was located. AFFIRMED.
[Summarized by Bryan Maroney]
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(9) Biggs v. Terhune
No. 02-15881 (06/30/03)
Before Circuit Judges Hug, Fisher, and Gibson, Senior
Circuit Judge
http://caselaw.lp.findlaw.com/data2/circs/9th/0215881p.pdf
DUE PROCESS / DENIAL OF PAROLE
Opinion (Hug): Biggs, convicted of first-degree
murder, sought a writ
of habeas corpus for violation of his due process
rights after the parole
board (board) denied him parole. The district
court denied the habeas
petition because there was some evidence that supported
the board's denial
of parole even though many of its findings had no
factual support. The
Ninth Circuit examined the two elements of due process:
1) whether the
board deprived Biggs of a constitutionally protected
liberty, and 2)
whether it was a denial of procedural protections.
The Ninth Circuit
reasoned that the state's parole system does demonstrate
a cognizable
liberty interest because it created a presumption
of parole when certain
findings are made. Also, the Ninth Circuit
reasoned that the board
satisfied the due process requirements because it
did show some evidence
supporting its decision. Therefore, the Ninth
Circuit denied Biggs's
habeas petition. AFFIRMED.
[Summarized by Sabrina L. Axt]
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(10) Ramirez v. Galaza
No. 00-15994 (06/27/03)
Before Circuit Judges Cowen, Hawkins, and W. Fletcher
http://caselaw.lp.findlaw.com/data2/circs/9th/0015994p.pdf
FAVORABLE TERMINATION RULE / 42 U.S.C. SEC. 1983
Opinion (Cowen): Ramirez, an inmate in state
prison, was charged with
battery of his cellmate. He was found guilty
of the battery during his
disciplinary hearing and sentenced to twenty-four
months administrative
segregation. Ramirez filed two unsuccessful
administrative appeals
challenging the disciplinary process and sentence.
He then filed a 42
U.S.C. sec. 1983 complaint in district court, alleging
that the prison
hearing and appeals violated due process and equal
protection under the
Fourteenth Amendment. The district court dismissed
the complaint without
leave to amend on the grounds that it failed to state
an actionable claim.
Ramirez appealed. The "Favorable Termination"
rule bars challenges under
sec. 1983 that would affect the overall length of
the prisoner's
confinement. Such claims should be challenged
through a habeas petition.
The Ninth Circuit held that the favorable termination
rule does not apply
to 1983 suits that do not affect the overall length
of the prison term.
The Court reasoned that even if Ramirez's 1983 claim
is successful, his
prison term would not automatically or necessarily
be shortened, for his
parole could be denied on other grounds. The
Court concluded that the
district court abused its discretion when it dismissed
with prejudice.
REVERSED AND REMANDED.
[Summarized by Derek Conom]
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(11) Doe v. Keala
No. 01-17566 (06/30/03)
Before Circuit Judges Schroeder, Alarcon, and Fisher
http://caselaw.lp.findlaw.com/data2/circs/9th/0117566p.pdf
FOURTH AMENDMENT / QUALIFIED IMMUNITY
Opinion (Schroeder): Doe, a second-grade student,
was misbehaving and
sent to the vice-principal of the school, Keala.
As punishment, Keala
taped Doe's head to a tree for five minutes.
Doe brought suit under 42
U.S.C. sec. 1983, alleging a violation of his Fourth
Amendment rights as
well as his Due Process rights. Keala moved
for summary judgment on the
basis of qualified immunity. The district court
denied the motion, and
Keala appealed. A public official is entitled
to qualified immunity
only if his conduct does not violate clearly established
constitutional
rights that a reasonable person would know.
Using this test, the Ninth
Circuit held that Keala's action was a constitutional
violation, and
that the Fourth Amendment right to be free from unreasonable
seizures,
even in the public school context, was clearly established.
In addition,
the Ninth Circuit held that claims of excessive force
by school officials
could be decided under the Fourth Amendment as well
as under the Due
Process Clause. The Court remanded the case
to allow Doe's Fourth
Amendment claims to proceed. AFFIRMED AND REMANDED.
[Summarized by Derek Conom]
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(12) Nulph v. Cook
No. 01-35556 (06/26/03)
Before Circuit Judges Ferguson, Fletcher, and King,
District Judge
http://caselaw.lp.findlaw.com/data2/circs/9th/0135556p.pdf
HABEAS CORPUS
Opinion (Ferguson): Nulph, a prisoner of the
state of Oregon, appealed
his denial of a habeas corpus petition. In
his appeal, Nulph argued
that that the Oregon State Board of Parole vindictively
increased his
sentence after he prevailed in a habeas corpus action.
In Nulph's
criminal, trial the court imposed a minimum term
of imprisonment allowing
the Board of Parole to either uphold the judicially
imposed sentence or to
set a new term based on a matrix range. Under
the existing rules when
Nulph was sentenced, the Board of Parole was required
to treat two
consecutive terms as a single term and either override
them or uphold them
all. After exhausting all state remedies, Nulph
filed a federal writ of
habeas corpus arguing that the Board of Parole violated
both Ex Post Facto
and Due Process Clauses because the Board applied
two rules that were not
in effect at the time of his offense. On appeal
the Ninth Circuit granted
him relief because his sentence was in violation
of the Ex Post Facto
Clause and ordered the board to re-sentence Nulph.
The Board re-sentenced
Nulph and changed his parole consideration from 2017
to 2062. Nulph filed
a new writ of habeas corpus after his re-sentencing
arguing the sentence
violated both federal and state constitutions.
In his habeas petition the
Anti-terrorism and Effective Death Penalty Act (AEDPA)
did not apply
because the state court did not reach the merits
of Nulph's due process
claim so the Ninth Circuit used Oregon law.
The Ninth Circuit ruled that
even if the all-or-nothing rule was properly applied,
there was no reason
to change his parole consideration from 2017 to 2062
and that the change
in Nulph's parole was out of vindictiveness.
REVERSED AND REMANDED.
[Summarized by Andrew Van Ness]
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(13) Rohan v. Woodford
No. 01-99016 (06/25/03)
Before Circuit Judges Kozinski, Kleinfeld, and Karlton,
District Judge
http://caselaw.lp.findlaw.com/data2/circs/9th/0199016p.pdf
HABEAS CORPUS / INCOMPETENCY
Opinion (Kozinski): Gates, sentenced to death,
began acting irrationally
after his conviction. His counsel filed habeas
petitions alleging various
constitutional rights violations and argued that
because of Gates'
inability to communicate rationally, the courts should
stay habeas
proceedings. The federal district court assigned
Rohan as "next friend"
following its conclusion that Gates had a mental
impairment that prevented
him from cooperating with counsel. The district
court denied Rohan's
renewed petition to stay proceedings and the Ninth
Circuit granted
interlocutory review. The Ninth Circuit held
that since competency is
linked to the ability to rationally communicate information
and assist
counsel, convicts have an established right to counsel
in federal capital
challenges, and successive petitions are strictly
limited by statute, a
petitioner does have the right to competency during
the first federal
habeas proceeding. Next, the Ninth Circuit
held that the district court
violated the petitioner's rights because Gates' ability
to communicate
rationally could potentially benefit his claims although
his counsel could
not identify specifically what Gates would relate
to them, were he
competent. REVERSED AND REMANDED.
[Summarized by Heather Vogelsong]
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(14) Toia v. Fasano
No. 02-55436 (06/30/03)
Before Circuit Judges Beezer, Kozinski, and McLane
http://caselaw.lp.findlaw.com/data2/circs/9th/0255436p.pdf
IMMIGRATION LAW / HABEAS CORPUS
Opinion (Beezer): Toia is a resident alien who
came to the U.S. as a
child. In 1989, Toia plead guilty to conspiracy
to possess a controlled
substance with intent to distribute. At the
time of the plea agreement,
Toia was eligible to apply for relief under the Immigration
and
Nationality Act sec. 212(c), which allows the Attorney
General to grant
waivers of relief from deportation for certain qualifying
permanent
residents. However, in 1990, Congress enacted
the Immigration act of
1990 (IMMACT), which rendered any alien convicted
of an aggravated felony
ineligible for sec. 212(c) relief. In 1997,
the Immigration and
Naturalization Service initiated removal proceedings
against Toia. Toia
subsequently applied for sec. 212(c) relief.
The Immigration Judge deemed
Toia ineligible and the district court denied his
habeas corpus petition.
Toia appealed. The Ninth Circuit held that the language
of IMMACT did not
clearly reflect a congressional intent to apply it
retroactively;
therefore, the retroactive application of IMMACT
would produce an
impermissible effect. The Ninth Circuit held
that because Toia plead
guilty prior to the enactment of IMMACT and he is
otherwise eligible for
sec. 212(c) relief, he could still apply for sec.
212(c) relief. REVERSED.
[Summarized by Kevin Clark]
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(15) Padilla v. Ashcroft
No. 02-70430 (07/01/03)
Before Circuit Judges Kozinski, Graber, and Berzon
http://caselaw.lp.findlaw.com/data2/circs/9th/0270430p.pdf
LEGAL IMMIGRATION FAMILY EQUITY ACT (LIFE ACT)
Opinion (Graber): Padilla, a Guatemalan national,
misrepresented her
identity, illegally entered the U.S., and was removed
by the Immigration
and Naturalization Service (INS) under an INS procedure
that does not
require a hearing. Padilla entered the U.S.
again and eventually married
a U.S. citizen. The INS ordered that Padilla
be removed when she filed
for an adjustment of status under the LIFE Act, which
allows undocumented
immigrants to change their status if they are married
to a legal U.S.
resident or citizen. Padilla filed a petition
for habeas corpus, claiming
violation of due process because the INS did not
grant her a hearing. The
district court denied Padilla's petition. The
Ninth Circuit reasoned that
Padilla was not covered under the LIFE Act because
she was not "otherwise
admissible" to the U.S. because she sought admission
through
misrepresentation. Therefore, the Ninth Circuit
held that the INS did
not violate Padilla's due process rights since Padilla
was unable to prove
that she was prejudiced as a result of the INS's
denial of a hearing.
PETITION DENIED.
[Summarized by Sabrina L. Axt]
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(16) U.S. v. Sanchez-Sanchez
No. 02-10005 (06/26/03)
Before Circuit Judges Brunetti, Tashima, and Ezra,
District Judge
http://caselaw.lp.findlaw.com/data2/circs/9th/0210005p.pdf
MAGISTRATE JURISDICTION
Opinion (Brunetti): Sanchez-Sanchez (Sanchez) pled
guilty to Illegal
Reentry after Deportation. His initial supervised
release revocation
proceeding was held in front of a magistrate judge
who recommended to
the district court to revoke the supervised release
and impose sentence.
The district court agreed with the recommendation
and revoked Sanchez's
supervised release. Sanchez appealed the district
court decision to
revoke his supervised release stating the magistrate
did not have
jurisdiction over him. The Ninth Circuit held
the magistrate judge did
not have the authority to revoke Sanchez's supervised
release. A
defendant must give consent to a magistrate judge
to preside over a
supervised release revocation proceeding. Sanchez
did not give explicit
consent to have a magistrate judge preside over his
supervised release
revocation proceeding, therefore, the magistrate
judge did not have
jurisdiction over his supervised release revocation
proceeding. Thus, the
Ninth Circuit reversed the district court's revocation
of Sanchez's
supervised release. REVERSED AND REMANDED.
[Summarized by Crystal English]
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(17) Carpinteria Valley Farms, Ltd. v. County of Santa
Barbara
No. 01-57218 (06/25/03)
Before Circuit Judges Hall, Thompson, and Berzon
http://caselaw.lp.findlaw.com/data2/circs/9th/0157218p.pdf
PROPERTY LAW / 42 U.S.C. SEC. 1983
Opinion (Thompson): Nesbitt and associated entities
Carpinteria Valley
Farms, Ltd., Yeager Holdings, Inc., and the Patrick
M. Nesbitt Family
Trust (collectively, Nesbitt) owned land in Santa
Barbara County,
California. Nesbitt wanted to develop the land
in a variety of ways,
including building a personal residence on it and
using part of the
property as a private polo field. The County
imposed a number of
requirements on the planned development, which included
requiring Nesbitt
to apply for a major conditional use permit to play
polo on the property.
Nesbitt alleged that the County of Santa Barbara,
its Planning and
Development Department, and employees of the department
violated his First
Amendment rights of free association by impeding
his use and development
of the property in retaliation for participation
in protected activities.
The district court determined that all of the incidents
Nesbitt complained
of were time-barred by the statute of limitations
except for his
contention that the County wrongfully required him
to apply for a major
conditional use permit to use part of the property
as a private polo field
and his claim that the County attached discriminatory
conditions to
issuance of his residential building permit.
As to the claims that were
not time-barred, the District Court characterized
those claims as "as
applied" takings claims that were not ripe for judicial
review. The Ninth
Circuit agreed with the District Court on the events
that it found to be
time-barred but disagreed with the events that were
not time-barred and
held that the claims they supported were not takings
claims but were
independent sec. 1983 claims which were ripe for
review. Under California
law, the statute of limitations for a sec. 1983 is
one year. The acts
that Nesbitt accused the county of occurred outside
of the one year mark
and are time-barred. However, the Ninth Circuit
reasoned that Nesbitt
could use those time-barred acts as evidence to establish
motive and to
put his timely-filed claims in context. As
to the ripeness issue, the
Ninth Circuit held that, because Nesbitt's constitutional
claims arose in
the context of the County's permitting process, those
claims were not
unripe, so long as Nesbitt otherwise met the ripeness
requirement.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
[Summarized by Cassandra Dempsey]
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(18) U.S. v. Guerrero
No. 01-10717 (06/27/03)
Before Circuit Judges Brunetti, Tashima, and Ezra,
District Judge
http://caselaw.lp.findlaw.com/data2/circs/9th/0110717p.pdf
SENTENCING / ABERRANT BEHAVIOR
Opinion (Tashima): Guerrero pled guilty to conspiracy
to possess
marijuana with the intent to distribute. Pre-sentence
investigation
recommended a 30-month sentence. Guerrero requested
a downward departure
based on aberrant behavior. The district court
sentenced her to eight
months in custody and two years of supervised release
with the condition
that she participates in a substance abuse program.
The U.S. appealed
the downward departure. The Ninth Circuit held
the court must find the
defendant's conduct extraordinary and that the behavior
was aberrant under
a three part test: that the criminal conduct was
committed without
significant planning, was of limited duration, and
represented a marked
deviation by the defendant from an otherwise law
abiding life. Since the
district court did not determine if Guerrero's conduct
was extraordinary
or constituted aberrant behavior, the Ninth Circuit
vacated the district
court sentence and remanded to the district court
for resentencing.
VACATED AND REMANDED.
[Summarized by Crystal English]
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(19) U.S. v. Ceja-Prado
No. 01-30440 (06/25/03)
Before Circuit Judges Reinhardt, W. Fletcher, and
Gould
http://caselaw.lp.findlaw.com/data2/circs/9th/0130443p.pdf
SUBJECT MATTER JURISDICTION / FEDERAL JUVENILE DELINQUENCY ACT
Opinion (Reinhardt): An undercover officer arrested
Ceja-Prado (Prado)
for a conspiracy to sell methamphetamine. Prado
pled guilty to the
offense and the district court sentenced him.
On appeal, Prado introduced
new evidence that he was a juvenile at the time of
his arrest. The Ninth
Circuit remanded the case to the district court for
a finding of fact on
Prado's true age. The Ninth Circuit reasoned
that despite the fact that
Prado presented new evidence on appeal, the evidence
raised a serious
question regarding federal jurisdiction. The
Ninth Circuit stated that
the Federal Juvenile Delinquency Act provides that
federal courts have no
jurisdiction over certain prosecutions for acts of
juvenile delinquency
unless the Attorney General has certified the cases
for prosecution. No
certification for Prado's case existed. The
Ninth Circuit further stated
that when it appears that new evidence may establish
that the court has no
jurisdiction to hear a case, it will not permit a
party's improper conduct
to interfere with its own obligation to acknowledge
new facts. In
addition, the Ninth Circuit determined that there
is little reason for a
criminal defendant to subject himself to the federal
criminal justice
system in order to thwart the system. Therefore,
the Ninth Circuit held
that the new evidence presented by Prado on appeal
concerning his age
presented a question of fact for the district court
to resolve in order to
determine jurisdiction. REMANDED.
[Summarized by Kathryn Kellogg]
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(20) U.S. v. Shimoda
No. 02-10188 (06/26/03)
Before Circuit Judges Leavy, Rymer, and T. Nelson
http://caselaw.lp.findlaw.com/data2/circs/9th/0210188p.pdf
WAIVER OF APPELLATE RIGHTS
Opinion (Leavy): Shimoda pled guilty for conspiracy
to possess and
distribute cocaine, and the district court imposed
a 42-month sentence.
Shimoda stipulated the drug quantity was 3,987.7
grams and agreed that his
Base Level Offense Level was 30, exposing him to
a potential sentence
between 5 and 40 years. In Shimoda's plea agreement,
he waived his right
to appeal "any sentence within the maximum provided
in the statute(s) of
conviction." Shimoda appealed the district court
sentence. The Ninth
Circuit held Shimoda waived his right to appeal the
district court
conviction because the sentence imposed was within
the statutory maximum
sentencing guidelines and that Shimoda had waived
his right to have a jury
determine the drug quantity because he had stipulated
the drug quantity.
The Ninth Circuit held the sentence imposed by the
district court was
consistent with Shimoda's negotiated plea agreement.
DISMISSED.
[Summarized by Crystal English]
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NINTH CIRCUIT COURT NEWS
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