Ninth Circuit: Building Barriers to Avoid Addressing the Merits

Blast Zone No. 145
Set Up On:
Category: Judges - Appellate
Current Courthouse Location:
700 SW 6th Ave
Portland, Oregon 97204
Written Decision by the Ninth Circuit:
9th Circuit Judges Paez, Bea, and Anello
9th Circuit Judges Paez, Bea, and Anello

The Ninth Circuit Court of Appeals seems more interested in building barriers to justify failing to address the merits of cases before them than they do in upholding the law. I found that out many years ago. I've had three cases before them so far and almost all of them were decided based on procedural barriers that they claim prevented them from addressing the issues before them. This can be really frustrating for inmates that do not realize that their attorney failed to take advantage of a legal loophole until procedure prevents them from raising the issue.

Most recently, I had a habeas corpus claim before them that I filed under 28 U.S.C. 2255 for ineffective assistance of counsel. It was argued orally before justices Richard Paez, Carlos Bea, and Michael Anello. I filed the petition myself in the district court, but Judge Marco Hernandez dismissed it. Fortunately Hernandez did issue a certificate of appealability (COA) that gave the Ninth Circuit the legal ability to review his decision. COAs are extremely rare and it was a moment of pride for me because many lawyer have argued cases and failed to get as far as I had gotten on my own. COAs can be issued by district courts or courts of appeals, so I still hoped that issued Hernandez did not certify would be heard.

Unfortunately for me the Court limited their review to "whether Sullivan’s trial counsel was ineffective in advising Sullivan to plead guilty to a Superseding Information, which omitted the specific intent element of 18 U.S.C. § 875(c)...First, Sullivan argues he suffered prejudice because after pleading guilty, counsel did not file a motion to arrest judgment pursuant to the then-existing Federal Rule of Criminal Procedure 34. Sullivan did not raise this argument in his section 2255 motion, but rather raised it for the first time in his post-judgment motions. The district court declined to issue a COA regarding Sullivan’s motion for relief from judgment pursuant to Federal Rule of Civil Procedure 60(b). Because Sullivan’s Rule 34 argument does not fall within the narrow issue certified by the district court for appeal, this argument is not properly before the Court." My attorney at the time, Per Olson, failed to move the district court to arrest judgement after I pled, but because I was an inmate with no right to counsel during the initial stages of my habeas proceeding, I did not know of the Rule 34 loophole when I filed my petition. They didn't even address whether or not the information properly charged a crime.

This is an unfortunate example of the state of the American court system. When you are charged with a crime they hold you without bail, take away your ability to earn an income, force you to rely on court appointed counsel, and take away your ability to consult with counsel after the your appeals are exhausted. They say that when an inmate files a hebeas corpus motion that it is technically a civil, so there is no right to counsel. That could not be more unconstitutional. For criminal defendants life and limb are potentially at stake during habeas corpus proceedings. I think that if counsel had been appointed to help me file my petition that I would not have been barred from raising the argument.

The Ninth Circuit also errd on the standard for prejudice. They took the position that if a defendant would have still pled guilty then they were not prejudiced. They fail to recognize cases such as Missouri v. Frye, 566 U.S. 134 (2012) in which post plea counsel was ruled ineffective because effective counsel would have produced a better outcome. I should not have this charge on my record.

I do however believe that the lawyer that were eventually appointed to my cases argued them well before the court.

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