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Denial of Capital Habeas Petition, and Criminal Matter

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By FindLaw Staff on August 30, 2010 9:25 AM

In Johnson v. Upton, No. 09-16090, a capital habeas matter, the court affirmed the denial of petitioner's habeas petition, holding that 1) it was not objectively unreasonable for an attorney to assume that if there were some powerful reason for his client's escape from pretrial detention other than the usual reason for escapes (not wanting to be convicted and in jail), the client would have told him that reason when they discussed the impact the escape evidence would have at trial; 2) the victim's death certificate would not put a reasonably competent attorney on notice of a need to do more discovery or to obtain testimony from a medical expert; and 3) trial counsel's investigation into mitigating circumstances was not objectively unreasonable.

In US v. Zaldivar, No. 09-12035, the court affirmed defendant's sentence for conspiracy to encourage or induce aliens to enter the U.S., knowing or in reckless disregard of the fact that such entry was or would be in violation of law, which conduct resulted in death, holding that 1) to apply the U.S.S.G. section 2L1.1(b)(7) enhancement it must be reasonably foreseeable to a defendant that his actions or the actions of any other member of the smuggling operation could create the sort of dangerous circumstances that would be likely to result in serious injury or death, and defendant's conduct met this requirement; and 2) the court of appeals could not state that the district court erred in denying defendant's request to find that he committed the offense for a reason "other than for profit."

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