Greyson v. Kellam (1991)

Greyson v. Kellam, 937 F.2d 1409, 1412 (9th Cir.1991). 4 Because trial error implies nothing with respect to guilt or innocence, the double jeopardy clause generally does not prohibit the state from retrying a defendant whose conviction is reversed on appeal.

Swan v. Peterson, 6 F.3d 1373, 1384 (9th Cir.1993) (citing Greyson v. Kellam, 937 F.2d 1409, 1412 (9th Cir.1991)).

"Newly discovered evidence warrants federal habeas relief if it would III. 8 Finally, Jirovec's claim that the district court abused its discretion in refusing him an evidentiary hearing fails. 2 See Greyson v. Kellam, 937 F.2d 1409, 1412 (9th Cir.1991) (the decision to deny an evidentiary hearing is reviewed for an abuse of discretion). 9 An evidentiary hearing is required where the facts are disputed and (1) the petitioner's allegations, if true, would establish the right …

Greyson v. Kellam, 937 F.2d 1409, 1412 (9th Cir.1991). "[O]ur review of the [trial] judge's discretionary decision to try a defendant in absentia [is] limited to reviewing the factual finding that the defendant knowingly and voluntarily failed to appear." United States v. Houtchens, 926 F.2d 824, 827 (9th Cir.1991).

In particular, Bonilla seeks access to the lineup photographs, videotape, and any other physical, documentary or other evidence to help reconstruct and assess the propriety of the uncounselled lineup, as well as any additional facts to explain his trial attorney's absence from the lineup. 25 " 'A habeas corpus petitioner is entitled to an evidentiary hearing if he has alleged facts which, if proven, would entitle him to relief and he did not receive a full and fair evidentia…

Court v. Lydon, 466 U.S. 294, 303 , 104 S.Ct. 1805, 1810 , 80 L.Ed.2d 311 (1984); Greyson v. Kellam, 937 F.2d 1409, 1413 (9th Cir.1991); Robinson v. Wade, 686 F.2d 298 , 303 n. 8 (5th Cir.1982); Fain v. Duff, 488 F.2d 218 (5th Cir.1973), cert. denied, 421 U.S. 999 , 95 S.Ct. 2396 , 44 L.Ed.2d 666 (1975).

Greyson v. Kellam, 937 F.2d 1409, 1412 (9th Cir.1991). 4 Usually, a district court must order an evidentiary hearing on a section 2255 motion unless the allegations made in the petition fail to state a claim for relief or "are so palpably incredible or so patently frivolous or false as to warrant summary dismissal." Baumann v. United States, 692 F.2d 565, 571 (9th Cir.1982); see also 28 U.S.C. § 2255 .

Greyson v. Kellam, 937 F.2d 1409, 1412 (9th Cir.1991).

“The Double Jeopardy Clause provides criminal defendants the right to have their ease heard and a verdict returned by the jury originally impaneled.” Greyson v. Kellam, 937 F.2d 1409, 1413 (9th Cir.1991).

“The Supreme Court has ... held that retrial is barred when the defendant moves for and is granted a mistrial on the basis of deliberate prosecutorial misconduct intended to provoke a mistrial motion by the defense.” Greyson v. Kellam, 937 F.2d 1409, 1413 (9th Cir.1991) (citing Oregon v. Kennedy, 456 U.S. 667, 679 , 102 S.Ct. 2083 , 72 L.Ed.2d 416 (1982)).

This contention is waived because Sandrock raised it for the first time in his reply brief, see Gray v. Lewis, 881 F.2d 821 , 823 n. 3 (9th Cir.1989), and in any event lacks merit, see, Greyson v. Kellam, 937 F.2d 1409, 1415 (9th Cir.1991)

Greyson v. Kellam, 937 F.2d 1409, 1413-15 (9th Cir.1991).

See Fed.R.App.P. 34(a); 9th Cir.R. 34-4 ** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3 1 Dyson's contention that the district court should have held an evidentiary hearing on his claims is waived because it is raised for the first time in his reply brief, see Gray v. Lewis, 881 F.2d 821 , 823 n. 3 (9th Cir.1989), and in any case lacks merit, see Greyson v. Kellam, 937 F.2d …

Greyson v. Kellam, 937 F.2d 1409, 1412 (9th Cir.1991).

Greyson v. Kellam, 937 F.2d 1409, 1412 (9th Cir.1991); see Knaubert v. Goldsmith, 791 F.2d 722, 727 (9th Cir.), cert. denied, 479 U.S. 867 (1986) (decision to hold evidentiary hearing is within court's discretion unless one of six mandatory circumstances exists).

Greyson v. Kellam, 937 F.2d 1409, 1412 (9th Cir.1991).

Greyson v. Kellam, 937 F.2d 1409, 1412 (9th Cir.1989).

Greyson v. Kellam, 937 F.2d 1409, 1412 (9th Cir. 1991). 8 An evidentiary hearing is required when (1) the petitioner's specific factual allegations, if proven, would establish his prima facie right to relief, and (2) the state court trier of fact has not reliably found the relevant facts.

Greyson v. Kellam, 937 F.2d 1409, 1412 (9th Cir.1991).

Greyson v. Kellam, 937 F.2d 1409, 1412 (9th Cir.1991).

Trotter contends that there was no showing that his defense counsel made any effort to investigate and challenge the admission of certain evidence or to ascertain Trotter's mental state, either at the time the crimes were committed or during his change of plea hearing. 7 While a district court's decision not to hold an evidentiary hearing is examined for an abuse of discretion, "[a] habeas corpus petitioner is entitled to an evidentiary hearing if he has alleged facts which,…

Greyson v. Kellam, 937 F.2d 1409, 1415 (9th Cir.1991). 7 AFFIRMED. * The panel unanimously finds this case suitable for submission on the record and briefs and without oral argument.

Greyson v. Kellam, 937 F.2d 1409, 1412 (9th Cir.1992).

However, "[a] federal habeas petitioner is entitled to an evidentiary hearing [only] if he has alleged facts which, if proven, would entitle him to relief and he did not receive a full and fair evidentiary hearing in a state court." Greyson v. Kellam, 937 F.2d 1409, 1412 (9th Cir.1991).

Greyson v. Kellam, 937 F.2d 1409, 1412 (9th Cir.1991). 3 A district court must hold such a hearing if the petitioner's allegations, if proved, would entitle him to relief, and if the state court trier of fact has not, after a full and fair hearing, reliably found the relevant facts.

Greyson, 937 F.2d at 1412; Watts v. United States, 841 F.2d 275, 277 (9th Cir.1988). 12 Dearinger received a fair trial.

Greyson v. Kellam, 937 F.2d 1409, 1412 (9th Cir.1991).

Greyson v. Kellam, 937 F.2d 1409, 1412 (9th Cir.1991). 5 The record demonstrates that Griffin's claim that trial counsel was ineffective in failing to object to the testimony of the state's expert witness is frivolous.

Greyson v. Kellam, 937 F.2d 1409, 1412 (9th Cir.1991).

Greyson v. Kellam, 937 F.2d 1409, 1412 (9th Cir.1991). 5 Modahl received an evidentiary hearing in state court after the victim recanted her testimony.

Greyson v. Kellam, 937 F.2d 1409, 1412 (9th Cir.1991). 13 Because Bunker did not show cause or prejudice for his failure to present additional evidence of ineffective assistance of counsel at the hearing already held in state court, he was not entitled to an evidentiary hearing in federal court.

Greyson v. Kellam, 937 F.2d 1409, 1412 (9th Cir.1991). 4 A district court may dismiss a habeas petition for an abuse of the writ when a petitioner raises a claim in a subsequent petition that could have been raised in the first petition, "regardless of whether the failure to raise it earlier stemmed from a deliberate choice." McCleskey v. Zant, 111 S.Ct. 1454, 1468 (1991).

Greyson v. Kellam, 937 F.2d 1409, 1412 (9th Cir.1991).

Greyson v. Kellam, 937 F.2d 1409, 1412 (9th Cir.1991).

Greyson v. Kellam, 937 F.2d 1409, 1412 (9th Cir.1991).

The district court's decision "to deny an evidentiary hearing is reviewed for abuse of discretion." Greyson v. Kellam, 937 F.2d 1409, 1412 (9th Cir.1992).

Greyson v. Kellam, 937 F.2d 1409, 1412 (9th Cir.1991). 5 We lack jurisdiction to review a district court's discretionary refusal to depart downward in a sentence under the Sentencing Guidelines.

See Townsend v. Sain, 372 U.S. 293, 312-13 , 83 S.Ct. 745, 756-57 , 9 L.Ed.2d 770 (1963), overruled in part on other grounds, Keeney v. Tamayo-Reyes, — U.S. -, 112 S.Ct. 1715 , 118 L.Ed.2d 318 (1992); Greyson v. Kellam, 937 F.2d 1409, 1415 (9th Cir.1991).

Greyson v. Kellam, 937 F.2d 1409, 1412 (9th Cir.1991).

Greyson v. Kellam, 937 F.2d 1409, 1412 (9th Cir.1991). 5 "[A] guilty plea conclusively proves the factual allegations contained in the indictment." United States v. Mathews, 833 F.2d 161, 164 (9th Cir.1987).

Greyson v. Kellam, 937 F.2d 1409, 1415 (9th Cir.1991).

Hartley v. Neely, 701 F.2d 780, 781 (9th Cir.1983) ("[P]retrial habeas corpus review is appropriate in those cases where, as here, all other state remedies were exhausted."); Greyson v. Kellam, 937 F.2d 1409, 1412-13 (9th Cir.1991). *1313 The state contends, however, that the district court should have abstained because, as in Doe v. Donovan, 747 F.2d 42 (1st Cir.1984), even if Mannes’ petition were granted she could be retried for manslaughter, though not for murder, 3 and …

Greyson v. Kellam, 937 F.2d 1409, 1415 (9th Cir. 1991).

Since Kennedy , federal courts have consistently refused to infer such prosecutorial intent. , See White, 914 F.2d at 752 ; see also United States v. Perez Sanchez, 806 F.2d 7, 7-9 (1st Cir.1986) (government witness’s reference to excluded evidence deemed good faith mistake), cert. denied, 480 U.S. 922 , 107 S.Ct. 1383 , 94 L.Ed.2d 697 (1987); United States v. Millan, 17 F.3d 14, 18 (2d Cir.1994) (unintentional failure to disclose police misconduct not an effort to goad mist…

Need for Evidentiary Hearing “A habeas corpus petitioner is entitled to an evidentiary hearing if he has alleged facts which, if proven, would entitle him to relief and he did not receive a full and fair evidentiary hearing in a state court.” Greyson v. Kellam, 937 F.2d 1409, 1412 (9th Cir.1991) (quoting Norris v. Risley, 878 F.2d 1178, 1180 (9th Cir.1989)).

The Court of Appeals for the Ninth Circuit considered but did not resolve this issue in Greyson v. Kellam, 937 F.2d 1409, 1415 (9th Cir. 1991), finding instead that the prosecutor’s overreaching in that case was not intended for the purpose of provoking a mistrial.

See Greyson v. Kellam, 937 F.2d 1409 , 1412–13 (9th Cir. 1991).

See United States v. Hernandez, 80 F.3d 1253, 1261 (9th 1842 UNITED STATES v. HAGEGE Cir. 1996), overruled on other grounds by Muscarello v. United States, 524 U.S. 125 , 118 S. Ct. 1911 (1998). [1] “The Double Jeopardy Clause provides criminal defen- dants the right to have their case heard and a verdict returned by the jury originally impaneled.” Greyson v. Kellam, 937 F.2d 1409, 1413 (9th Cir. 1991).

See Greyson v. Kellam, 937 F.2d 1409, 1412 (9th Cir.1991). 2 10 AFFIRMED. ** The panel unanimously finds this case suitable for decision without oral argument.

See Greyson v. Kellam, 937 F.2d 1409, 1412 (9th Cir.1991).