Willamette Law Online

(43 summaries)

Tucker Kraght

9th Circuit Court of Appeals

TitleExcerptFilling Date
Hernandez de Martinez v. HolderImmigration: A conviction for criminal impersonation by assuming a false identity with intent to defraud is categorically a crime involving moral turpitude.(10-24-2014)
Latta v. OtterCivil Procedure: A party seeking a stay “bears the burden of showing his entitlement to a stay,” and the court will consider “four factors: (1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.”(10-15-2014)
Latta v. OtterCivil Rights § 1983: Statutes and constitutional amendments preventing same-sex couples from marrying and refusing to recognize same-sex marriages validly performed elsewhere violate the Equal Protection Clause of the Fourteenth Amendment because they deny people who wish to marry persons of the same sex a right they afford to individuals who wish to marry persons of the opposite sex, and do not satisfy the heightened scrutiny.(10-07-2014)
Armstrong v. BrownCivil Rights § 1983: A modified injunction altering the accountability system complies with the prison litigation reform act when the original injunction requires the state to specify steps to ensure that disabled inmates are provided with needed accommodations. (09-26-2014)
Sandoval-Gomez v. HolderImmigration: Attempted arson under the California Penal Code constitutes an aggravated felony under the federal explosive materials statute; and, the California Penal Code section governing attempted arson is divisible and under the modified categorical approach falls under the definition in the federal statute.(09-22-2014)
McMonagle v. MeyerHabeas Corpus: Finality for the purposes of federal habeas petitions occurs once the state supreme court has denied a state habeas petition and the United States Supreme Court has denied cert or the 90-day period for filing a petition for cert has lapsed.(09-10-2014)
United States v. ReyesCriminal Law: A defendant's constitutional rights are not violated when he is excluded from side bar conversations between the court and counsel discussing whether prospective jurors should be dismissed for cause, exercising peremptory challenges, and deciding whether to proceed in the absence of prospective jurors, because the conversations are conferences or hearings on a matter of law.(09-04-2014)
Lai v. HolderImmigration: A petitioner’s omission of details concerning third parties until cross-examination, which were not contradictory to his earlier testimony or application materials, does not support an adverse credibility determination; and it is an error to reject a petitioner’s explanation for failing to amend or add this information to his asylum application at the outset of his merits hearing.(08-25-2014)
United States v. CisnerosCriminal Law: Under Oregon law, fleeing or attempting to elude police is a divisible statute and use of a vehicle in commission of the offense will qualify as a violent felony predicate offense for the purposes of sentencing pursuant to the Federal Armed Career Criminal Act's residual clause.(08-19-2014)
Williams v. State of CaliforniaCivil Rights § 1983: Dismissal of a claim pursuant to 42 U.S.C. 1983 is appropriate when plaintiff fails to allege specific facts against a particular defendant other than to identify the defendant's title. Denial of leave to amend is appropriate if amendment would be futile.(08-19-2014)
Sierra Club v. U.S. EPAEnvironmental Law: The Clean Air Act requires a company to demonstrate that they complied with the applicable regulations in effect at the time a permit was issued by the Environmental Protection Agency; and, the Environmental Protection Agency cannot waive this requirement because Congress has spoken on this issue directly.(08-12-2014)
Columbia Riverkeeper v. U.S. Coast GuardAdministrative Law: A U.S. Coast Guard letter of recommendation is not a final agency action under the Natural Gas Act that would allow for judicial review.(08-05-2014)
Juarez Alvarado v. HolderImmigration: A petition will be denied under the modified categorical approach that the government met its burden to prove removability based on attempted possession of a controlled substance, even when the court could not consider the indictment because the count as originally charged was dismissed the defendant pled to a lesser charge in a modified count because it could consider a page in the indictment that described the substance as methamphetamine and the statement was specifically incorporated into the plea agreement as the factual basis supporting the guilty plea.(07-23-2014)
Coronado v. HolderImmigration: An individual can be held inadmissible based on a conviction for possessing methamphetamine, in violation of California Health & Safety Code § 11377(a) because § 11377(a) is a divisible statute and in applying the modified categorical approach violation of § 11377(a)also violates the Federal Controlled Substances Act. (07-18-2014)
Arizona Dream Coalition v. BrewerConstitutional Law: A preliminary injunction is proper in an equal protection claim when the plaintiff can show a likelihood of success on the merits of their equal protection claim, that the plaintiff is likely to suffer irreparable harm unless the policy is enjoined, and that both the balance of equities and the public interest favored an injunction.(07-07-2014)
United States v. ShouseSentencing: It is not abuse of discretion for the trial court to apply enhancement factors under United States Sentencing Guideline § 2G2.2(b)(4) or order the sentence run consecutively to an undischarged state sentence for sexual exploitation of a minor by production of sexually explicit visual or printed material that portrayed sadistic or masochistic conduct or other depictions of violence.(06-24-2014)
Trillo v. BiterHabeas Corpus: An improper comment by a prosecutor does not materially affect the fairness of a trial when the trial court sustains the defendant’s objection and instructs the jury that statements made by the attorneys during trial are not evidence; and, to be deprived of a fair trial, there must be a reasonable probability that the jury would have reached a different verdict without the prosecutorial misstatements.(06-16-2014)
United States v. SpearCriminal Law: Knowing and voluntary waiver of a defendant's right to appeal sentence does not extend to right to the defendant's right to appeal his conviction.(06-05-2014)
Singh v. HolderImmigration: In a witholding of removal proceeding the burden shifts to the petitioner when the Government can show there is a fundamental change in circumstances in a country's conditions, an agency is permitted to consider the probative value of hearsay and non-hearsay evidence in this determination. (05-21-2014)
Pirir-Boc v. HolderImmigration: For the purposes of asylum and withholding of removal under the Convention Against Torture, there must be evidence to support that the particular persecuted social group the petitioner belongs to is socially recognized. The persecutor's perception and persecutory conduct are factors to consider to determine a group's social viability.(05-07-2014)
United States v. Ramirez-EstradaCriminal Procedure: Use of a defendant's post-Miranda-invocation of silence to impeach the defendant violates the defendant's constitutional rights under Doyle v. Ohio, regardless of whether or not the police complied with Miranda. (04-25-2014)
He v. HolderImmigration: A showing of substantial economic disadvantage suffered, or other sufficient harm, is required to establish an objectively reasonable fear of future persecution to be granted review of the Board of Immigration Appeal's denial of asylum and withholding of removal.(04-17-2014)
United States v. Barrios-SiguenzaCriminal Law: A court cannot vacate an invalid conviction of a defendant who has been deported if the case is “unlikely to language for an indefinite period of time.” (04-09-2014)
United States v. Guillen-CervantesCriminal Law: A criminal forfeiture judgment for conviction for conspiracy to transport and harbor illegal aliens pursuant to 18 U.S.C. § 982 does not violate the Fifth Amendment because there is no constitutionally protected liberty or property interest being deprived because there is no implied right to contribution.(03-28-2014)
Baumann v. Chase Investment ServicesCivil Procedure: The district court does not have jurisdiction over cases brought initially under the California Labor Code Private Attorney General Act of 2004 ("PAGA") and then removed to federal district court under the Class Action Fairness Act of 2005 because the PAGA is not sufficiently similar to Federal Rule of Civil Procedure 23 class actions.(03-13-2014)
United States v. Perez-ValenciaCriminal Law: The panel qualified its use of the word "all" regarding the delegation of duties in the event of the District Attorney's absence to refer to “the routine standard daily functions of a prosecutor's office, which does not include administrative matters involving budgets, personnel,” or certain unique matters.(03-03-2014)
Vosgien v. PerssonHabeas Corpus: A finding of actual innocence will excuse the untimeliness of a 28 U.S.C. § 2254 habeas corpus petition.(02-13-2014)
Berger v. Home DepotCivil Procedure: Absent a settlement, a stipulated dismissal does not destroy adversity sufficient to bar appellate jurisdiction. (02-03-2014)
Patel v. City of Los AngelesCriminal Procedure: Los Angeles Municipal Code § 41.49, which authorizes non-consensual police searches of hotel guest records, is facially invalid under the Fourth Amendment because it does not afford an opportunity to obtain prior judicial review.(12-24-2013)
Petronas v. GoDaddy.comTrademarks: The Anticybersquatting Consumer Protection Act does not incorporate the common law of trademark and therefore does not provide a cause of action for contributory cybersquatting.(12-04-2013)
United States v. HorobSentencing: When a district court does not impose a more severe overall sentence on remand, the presumption of vindictiveness does not apply. (11-07-2013)
Prudential Locations LLC v. HUDAdministrative Law: Exemption 6 of the Freedom of Information Act allows an agency to protect the identity of someone who has complained to a federal agency about a violation of law.(10-09-2013)
Yakima Valley Mem'l Hosp. v. Dep't of HealthConstitutional Law: Regulations allowing hospitals without on-site cardiac surgical facilities to perform elective percutaneous coronary interventions so long as they obtained a Certificate of Need “demonstrating sufficient need in the region” does not violate the dormant commerce clause because the “impact on interstate commerce, if any, was highly attenuated, and did not outweigh the safety benefits of the regulation[].”(09-23-2013)
United States v. Lopez-CruzCriminal Procedure: A peace officer exceeds the scope of consent to "look in" or "search" a cellular phone when the officer answers incoming calls, and it is not an abuse of discretion for a district court to deny a motion for reconsideration to “consider an argument, raised for the first time in that motion, that exigent circumstances justified answering the calls.”(09-12-2013)
Wynar v. Douglas Cnty. Sch. Dist.Civil Rights § 1983: hen faced with an identifiable threat of school violence, a school’s disciplinary action does not violate a student's First Amendment rights or due process so long as the off-campus messages that threaten the safety of the school and its students interfere with the rights of other students and make it reasonable for school officials to “forecast a substantial disruption” of school activities.(08-29-2013)
Rodriguez v. AT&T Mobility ServicesCivil Procedure: A lead plaintiff of a putative class action may not reduce the amount-in-controversy on behalf of absent class members.(08-27-2013)
United States v. LivingstonCriminal Law: The location of an establishment is not an element of theft by an officer of a gaming establishment on Indian lands.(08-07-2013)
Sumolang v. HolderImmigration: For the purposes of withholding of removal, harm to a child can amount to past persecution of a parent when the harm is directed against the parent on the basis of the parent's race, religion, nationality, membership in particular social group, or political opinion.(07-25-2013)
Tista v. HolderImmigration: Based on the plain language of the statute, the Child Status Protection Act does not apply to Nicaraguan Adjustment and Central American Relief Act applicants; such a distinction between different classification of aliens is reviewed for rational basis, and therefore must be “wholly irrational” to violate Due Process and Equal Protection.(07-08-2013)
United States v. Sanchez-AguilarCriminal Law: Proof of defendant’s second departure from the United States was not an element of the § 1326 offense since the first departure was undisputed, but was necessary to avoid double jeopardy concerns; additionally, aliens are not entitled to be informed of potentially available avenues of relief in expedited removal proceedings.(06-19-2013)
Biggs v. Sec'y of Cal. Dep't of Corr. & Rehab.Habeas Corpus: Application of state Supreme Court precedent over United States Supreme Court precedent is not an unreasonable application of clearly established Federal law when there is no United States Supreme Court holding clearly establishing a requirement of as-applied analysis.(05-29-2013)
Conservation Northwest v. ShermanAdministrative Law: A district court abuses its discretion when it enters a consent decree that amends an agency rule which is permanent, substantial, and would have otherwise been subject to statutory rulemaking procedures(04-25-2013)
McDaniel v. Wells Fargo InvestmentsPreemption: The federal Securities Exchange Act and related “self-regulatory organizations” rules preempt the enforcement of California Labor Code § 450(a) against brokerage houses that forbid their employees from opening outside trading accounts where the state restriction imposed is a significant federal regulatory objective.(04-09-2013)