- Court: 9th Circuit Court of Appeals Archives
- Area(s) of Law: Post-Conviction Relief
- Date Filed: 01-10-2012
- Case #: 10-50284
- Judge(s)/Court Below: Circuit Judge Reinhardt for the Court; Chief Judge Kozinski and Circuit Judge W. Fletcher
- Full Text Opinion
Robert McGowan appeals his conviction and sentence of an assault, which occurred while he was a state prison guard. He was also charged with conspiring to obstruct justice due to his participation in a scheme to impede the grand jury investigation relating to his assault charges. The Ninth Circuit previously heard the case and reversed the district court’s grant of a judgment of acquittal after the jury returned a guilty verdict. McGowan appeals again to the Ninth Circuit, arguing that the district court erred by failing to conditionally rule that he get a new trial if his judgment of acquittal was reversed. He further argues that he was deprived of effective assistance of counsel since his attorney failed to make a new trial motion. The Ninth Circuit reviewed the new trial ruling argument under a plain error standard and found that the motion must be made by the defendant, and not the court, under the principle that a defendant pursues his defense in the manner of his choosing. Therefore, since McGowan did not make the motion, the district judge did not err in not conditionally granting McGowan a new trial, as he did not make the motion. Relating to McGowan’s ineffective assistance of counsel argument, the Ninth Circuit noted that they generally do not review challenges to the effectiveness of defense counsel on direct appeal, unless it falls under two exceptions: (1) that the record on appeal is developed to permit determination on the issue or (2) where the representation is so inadequate that the defendant is denied his 6th amendment right to counsel. Since McGowan’s case does not fall under either of these exceptions, the Ninth Circuit dismissed this claim without prejudice to renewing it in a § 2255 proceeding. AFFIRMED in part, VACATED in part and REMANDED.