From January 16, 2013, to January 22, 2013, the Ninth Circuit Court of Appeals issued the opinions summarized below.

(1) 42 USC § 1983: At summary judgment, all inferences must be drawn in favor of the plaintiff when determining qualified immunity for purposes of an Eighth Amendment analysis in a § 1983 claim.

(2) Civil Procedure: When a case is removed to federal court from a state court, and there is a successful motion to dismiss for failure to state a cause of action, the Ninth Circuit may remand to permit the plaintiff to amend his complaint to conform to federal standards.

(3) Habeas Corpus: A petitioner is entitled to an evidentiary hearing in a state court post-conviction relief (PCR) claim of judicial bias when the judge who presided over the trial, sentencing, and PCR hearing “makes factual findings [in the PCR case] without an evidentiary hearing or other opportunity for the petitioner to present evidence.”

(4) Immigration: The Board of Immigration Appeals (BIA) must explain its basis for using the “orderly pursuit of justice” and “meaningful risk of harm” rationales in determining that an individual committed a particularly serious crime before the BIA’s determination can be evaluated for its legal adequacy.

(5) Indian Law: Stipulation of a Tribal Enrollment Certificate was insufficient evidence to establish the defendant’s Indian status for purposes of the defendant’s conviction under the Major Crimes Act, 18 U.S.C. § 1153, which grants federal jurisdiction over enumerated crimes committed by Indians in Indian country.

(6) Sentencing: The 2008 Revised Code of Washington § 9A.44.060(1)(a) includes any sex offense involving the absence of the victim’s consent as a “forcible sex offense.” A third-degree rape conviction is considered a “forcible sex offense” and can be considered during sentencing of a future crime, even if the rape occurred before Amendment 722 was enacted.

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(1) Furnace v. Sullivan Date Filed: 01/17/13 Case #: 10-15961 Circuit Judge M. Smith for the Court; Circuit Judges Sack and Gould
Full Text Opinion:

Edward Terran Furnace (“Prisoner”) brought a § 1983 action alleging that, when corrections officers pepper sprayed him excessively and denied him a vegetarian breakfast, the officers violated the Eighth and Fourteenth Amendments, respectively. The district court granted officers summary judgment based both on qualified immunity where officers “could have mistakenly, but reasonably perceived” a threat, and where Prisoner failed to show disparate treatment during the meal service in question. The Ninth Circuit concluded that summary judgment granting qualified immunity was improper where, as here, discrepancies are great and because the district court failed to draw all inferences in Prisoner’s favor. On that basis, the Court applied the five factors of Hudson for determining “unnecessary and wanton pain and suffering” in contravention of the Eighth Amendment, and found that (1) use of pepper spray caused “burns, blisters, and skin irritation that persisted for three or four days;” (2) the force “seem[ed] quite extensive and disproportionate relative to the disturbance posed by [Prisoner’s] fingertips on the food port” for balance; (3) it was not clear that “use of violent force, prior to a verbal warning, was necessary;” (4) a disputed fact remained whether officers held a “reasonable, but mistaken, belief” Prisoner posed a threat while locked in his cell and not aggressive; and (5) Prisoner received medical care and efforts to “temper the severity of the[] forceful response.” The Court determined that grant of summary judgment on Prisoner’s Equal Protection claim, however, was proper absent evidence that officers treated Prisoner differently than other inmates whom the officers did not know were approved for vegetarian meals for religious reasons. REVERSED and REMANDED in part and AFFIRMED in part.

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(2) Faulkner v. ADT Security Services, Inc. Date Filed: 01/17/13 Case #: 11-16233 Circuit Judge Sack for the Court; Circuit Judges Gould and M. Smith
Full Text Opinion:

Faulkner appealed the district court’s order granting ADT Security Services, Inc. (“ADT”)’s motion to dismiss, and sought to amend his original complaint to plead a cause of action under California’s invasion of privacy law. Faulkner had called ADT to dispute charges found on his bill and during the call he heard beeping and clicking. When asked, the representative responded to Faulkner that the conversation was being recorded. Faulkner asked to be transferred to a non-recorded line to speak to a supervisor, where that supervisor told Faulkner it was company policy to record all conversations with customers. Faulkner alleged that these conversations were protected from being recorded without permission under California’s invasion of privacy laws. Faulkner brought a putative class action suit alleging that ADT unlawfully recorded telephone conversations without permission. ADT successfully removed the case to federal court on diversity grounds and moved to dismiss for failure to state a cause of action. The district court determined that Faulkner’s complaint, as written, did not plead a cause of action and granted the motion to dismiss. The Court, although unpersuaded by Faulkner’s allegations, remanded the case to allow Faulkner the opportunity to amend his complaint. REMANDED.

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3) Hurles v. Ryan Date Filed: 01/18/13 Case #: 08-99032 Circuit Judge Nelson for the Court; Circuit Judge Pregerson; Dissent by Circuit Judge Ikuta
Full Text Opinion:


Arizona charged Hurles in a capital case and provided court-appointed counsel. Counsel moved for appointment of co-counsel, which the trial court summarily denied. Counsel then filed a petition for special action in the state court of appeals. In accordance with Arizona law, counsel named the trial court judge as a nominal defendant as “a mere formality.” The trial court judge filed a response defending her actions. The court of appeals issued a decision that denied the trial court judge standing to appear and ruled it improper for judges to file pleadings “solely to advocate the correctness of an individual ruling in a single case.” The judge continued to preside over Hurles’s jury trial, conducted Hurles’s sentencing hearing, and presided over Hurles’s first and second post-conviction relief hearings, where she determined Hurles “offered no factual evidence to support his allegations” for relief, despite holding no evidentiary hearing. Instead, the judge “found facts based on her untested memory of the events.” The Court determined that the “state court decision resulted in an unreasonable determination of the facts and is not entitled to a presumption of correctness.” Because Hurles would be entitled to federal habeas relief if the allegation of judicial bias were shown, Hurles is entitled to an evidentiary hearing. REVERSED and REMANDED for an evidentiary hearing.

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(4) Alphonsus v. Holder Date Filed: 01/18/13 Case #: 10-73298
Circuit Judge Berzon for the Court; Circuit Judge Pregerson; Partial Concurrence and Partial Dissent by Circuit Judge Graber
Full Text Opinion:

Anthony Aloysius Alphonsus (Alphonsus), a lawful permanent resident, was convicted of resisting arrest and theft. The Department of Homeland Security charged Alphonsus with removability because he was an alien with convictions of “crimes of moral turpitude after admission” and an aggravated felony. Alphonsus applied for a withholding of removal. An immigration judge (IJ) found Alphonsus ineligible, because his conviction for resisting arrest constituted a “particularly serious crime.” Alphonsus appealed to the Board of Immigration Appeals (BIA), which found that resisting arrest was a particularly serious crime against a police officer and “the orderly pursuit of justice in the United States.’” The BIA also found that Alphonsus’s attempt to resist arrest “created a meaningful risk of harm to others and to the officer.” Alphonsus challenged the BIA’s determinations, arguing that a “particularly serious crime is unconstitutionally vague” and “the BIA’s application of the particularly serious crime bar [was] inadequately explained.” The Ninth Circuit noted that the statutory text “does cover an ascertainable core set of convictions” for particularly serious crimes and the BIA’s rulings have provided examples. Thus, a particularly serious crime was not unconstitutionally vague. The Court could not understand the “rationale of [the BIA’s] particularly serious crime determination.” Specifically, the BIA needed to address how “resisting arrest might constitute a particularly serious crime.” The BIA must also explain its “meaningful risk of harm” rationale. The Court could not find any indication that Alphonsus intended to harm the arresting officer or the public. The Court held that without the BIA’s explanation of how the “orderly pursuit of justice” and “meaningful risk of harm” rationales apply to Alphonsus’s situation, the Court could not evaluate the legal validity of the BIA’s decision. GRANTED in part. DENIED in part. REMANDED.

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(5) United States v. Zepeda Date Filed: 01/18/13 Case #: 10-10131 Circuit Judge Paez for the Court; Circuit Judge Fernandez; Dissent by Circuit Judge Watford
Full Text Opinion:

Damien Zepeda was charged and convicted of nine crimes, including assault with a deadly weapon, under the Major Crimes Act (18 U.S.C. § 1153), which provides federal jurisdiction over particular crimes committed in Indian territory by Indians. The parties stipulated into evidence Zepeda’s Tribal Enrollment Certificate showing that he had an Indian “Blood Degree…of 1/2” from two tribes. Under § 1153, the government must establish beyond a reasonable doubt that the defendant is Indian. Zepeda appealed his convictions, arguing that the government had not met its burden of showing that he was Indian beyond a reasonable doubt under § 1153. The Ninth Circuit analyzed the issue under the two-prong test articulated in United States v. Bruce: (1) the degree of the defendant’s Indian blood, and (2) the defendant’s tribal affiliation with a federally recognized tribe. The Court held that a defendant’s Indian status is like any other element of the crime, which must be proven beyond a reasonable doubt for § 1153 to apply; thus, the prosecution bears the burden of proving to the jury that a defendant is Indian under the two-prong Bruce test. The Court ruled that the Tribal Enrollment Certificate did not satisfy the first prong of the Bruce test, because the government did not submit to the jury evidence to show that Zepeda’s bloodline came from a federally recognized Indian tribe. Because the prosecution failed to meet the burden of the first prong, the Court did not rule on whether the government satisfied the second prong. REVERSED in part and REMANDED for resentencing.

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(6) United States v. Gallegos-Galindo Date Filed: 01/17/13 Case #: 12-10000 Circuit Judge Sack for the Court; Circuit Judges Gould and M. Smith
Full Text Opinion:

In 2011, when Oscar Gallegos-Galindo was being sentenced for reentry as a removed alien, the probation department considered his prior convictions. The department concluded that his 2008 Washington State conviction of third-degree rape was a “forcible sex offense” that qualified as a “crime of violence” under the United States Sentencing Guidelines, increasing his offense level. Before 2008, “crime of violence” included three types of sexual offenses: forcible sex offenses, statutory rape, and sexual abuse of a minor. “Forcible sex offenses” had been interpreted as requiring physical force beyond that required for penetration. However, in 2008, Amendment 722 modified “forcible sex offenses” to include offenses “where consent to the conduct is not given or is not legally valid, such as where consent to the conduct is involuntary, incompetent, or coerced.” With the Amendment, if consent was lacking, additional force or violence was not required. Under the Ex Post Facto Clause, if the Guidelines have substantively changed in a way that would disadvantage the defendant, the defendant is to be sentenced under the Guidelines in effect at the time of the offense, not at the time of sentencing. Here, the current offense occurred on February 15, 2011, long after the 2008 Amendment became effective. There was no change between the offense and sentencing that would disadvantage Gallegos-Galindo, and the court would not be required to use the pre-2008 definition of “forcible sex offense.” Gallegos-Galindo’s signed guilty plea provided evidence that the sexual assault was committed without the consent of the victim. As a result, his conviction falls within the Guidelines’ definition of “forcible sex offenses.” The district court did not err when it concluded that his conviction for third-degree rape was a crime of violence and when it considered it during sentencing. AFFIRMED.


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