U.S. Ninth Circuit - The FindLaw 9th Circuit Court of Appeals Opinion Summaries Blog

9th Goes Against SCOTUS, Reverses Unfair 3 Strikes Sentence

Sometimes, there is no correct answer, even when there is a right answer.

A panel of the Ninth Circuit reversed a man's Three Strikes sentence, using a plurality discussion in a Supreme Court case to go against that same case's majority opinion. In doing so, the Ninth Circuit gave the common-sense right answer, that a man shouldn't get a life sentence for relying upon a judge and prosecutor's incorrect assertions, and later, appeals courts' incorrect rulings, but seemingly went against controlling Supreme Court precedent.

Fairness versus stare decisis? And will the decision hold up on appeal?

Brian Durbin pled guilty to making criminal threats in 2000. The day before he entered his change of plea, voters passed an initiative that added a number of offenses to the Three Strikes menu, including criminal threats. When his attorney inquired as to the effect of the proposition, the prosecutor assured the court that his office’s appellate division had discussed the matter and it would have no impact. The judge mumbled something about “retroactivity problems.” They were wrong.

Five years later, on parole, Durbin discovered that the offense had counted as a strike. He filed habeas petitions in every court imaginable. All denied him because he was no longer in custody and no longer eligible for relief. They were wrong, as he was still on parole.

In 2008, Durbin caught another felony conviction, and this time, was sentenced to life. The trial court ignored the prior courts’ “whoops,” as did the district court here, likely because the Supreme Court has already decided the matter.

In Lackawanna County, the Court held that when the sentence for a conviction has been fully served (the Ninth calls this “expired”), and that sentence is later used to enhance another criminal sentence, a state prisoner “generally may not challenge the enhanced sentence through a petition under § 2254 on the ground that the prior conviction was unconstitutionally obtained.”

It doesn’t get more clear than that. Except, that’s a bit unfair isn’t it?

The court points out the unfairness of the original trial court’s blunders, then makes the argument that the appellate courts were wrong, Durbin was pro se during the entire process, and that as a non-lawyer, he had no way of knowing that so many brilliant legal minds could make so many mistakes.

The Lackawanna decision relied upon two main justifications. First, there are plenty of forums where he could have aired his grievances, including state appeals and post-conviction relief, plus federal habeas review while in custody. Holding the door open indefinitely is costly. The second justification is resources. Reviewing a cold record, years after the sentence expired, is cumbersome.

A plurality of that court also suggested that habeas review should be available when the defendant cannot be “faulted for failing to obtain timely review of a constitutional claim.”

That’s exactly what we have here. Now, the Ninth, joining the Tenth Circuit, have both ruled that the plurality’s exception to the rule exists.

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