LLP Fiftieth Floor One Market, Spear St. Los Angeles, CA 90071

Tower San Francisco, CA 94105 JUSTIN P. RAPHAEL

DANE P. SHIKMAN

JONATHAN I. KRAVIS MUNGER, TOLLES & OLSON MUNGER, TOLLES & OLSON LLP

LLP 560 Mission St. 601 Massachusetts Ave., Twenty Seventh Floor

NW San Francisco, CA 94105 Suite 500E Washington, D.C. 20001

Counsel for Petitioners

“Since before the founding of our Republic, courts have universally met the need to educate jurors by orally advising jurors ‘in the presence of the parties, the counsel, and all others .. . in matters of law arising upon thle] evidence.” United States v. Becerra, 939 F.3d 995, 1000 (9th Cir. 2019) (quoting 3 William Blacksone, Commentaries *375).

In this case, the trial court orally instructed the jury, but that instruction contained mistaken references to conspiratorial liability in a non-conspiracy count.

The parties noticed the error after the judge finished the jury charge. However, instead of returning the jury to open court to reinstruct it on that count, the parties simply agreed to correct a written copy of instructions which was provided to the jury. The jury was never informed of the difference between the judge’s oral instructions and the written copy of the instructions it received. On plain error review, the Fourth Circuit determined the district court’s instructions were “stray misstatements.” For this and other reasons, the appellate court affirmed Mr. Jacome’s conviction on that count because he did not establish a reasonable probability of a different outcome.

This type of error—and its various iterations—is subject to harmless-error review in several circuit courts. However, in the Ninth Circuit, not instructing a criminal jury in open court is treated as structural error, which is “not subject to harmless-error review.” McCoy v. Louisiana, 584 U.S. 414, 427 (2018).

The question presented in this matter 1s

I. Does a district court’s failure to instruct a jury 1n open court result in

structural error, automatically producing a violation of a defendant’s 1

Damion Delapena claimed in his federal habeas corpus petition that he received ineffective assistance of counsel when his attorney failed to file a motion to suppress. His petition identified precedent that would have all but compelled the trial court to suppress incriminating evidence. But his attorney failed to move for its suppression, and so Delapena pled guilty to five armed robberies.

Delapena also claimed he received ineffective assistance of counsel when his trial attorney told him cellular phone records produced during discovery were “not particularly helpful,” even though the records showed (1) he was over two hours away from the scene of one of the robberies he pled guilty to; and (2) his brother was far from the scene of any of those robberies, which undercut the State’s theory that his car served as the getaway vehicle. In his final ineffective assistance of counsel claim, Petitioner established his attorney mistakenly advised him that he was eligible for a downward departure 1f he entered a guilty plea, even though every ground for departure counsel raised at sentencing was invalid.

Both the district court and the Eleventh Circuit denied Delapena a certificate of appealability. This petition presents the following question:

1. Does federal habeas petitioner make a “substantial showing of the denial of a constitutional right” under 28 U.S.C. § 2253(c)(2) where his trial attorney failed to assert valid grounds for the

Whether a reviewing court must strictly adhere tothe Supreme Court requirement that a district court’s fact-findings “must not be set aside unless clearly erroneous , or whether the reviewing court may engage in its own review with less deference when the court of appeals decides the fact-findings are insufficient.

Whether a reviewing court’s failure to apply clearly established Supreme Court standard of review that “deferential review of mixed questions of law and fact is warranted when it appears that the district court is ‘better positioned’ than the appellate court to decide the issue in question or that probing appellate scrutiny will not contribute to the clarity of legal doctrine” violates a defendant’s Fourteenth Amendment right to due process.

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I. Did the Prosecution Fail to Prove the Second Degree Murder Charge Beyond a Reasonable Doubt; Did Appellate Counsel Render Ineffective Assistance?

II. Did the Trial Court Deprive Duarte of Due Process and a Fair Trial by Admitting Evidence of Duarte’s 2016 DUI Arrest; Did Appellate Counsel Render Ineffective Assistance?

III. Did the Trial Court Deprive Duarte of Due Process and a Fair Trial by Failing to Issue an Instruction on Foreseeability; Did Trial and Appellate Counsel Render Ineffective Assistance?

IV. Did the Newly Discovered Evidence Show that Duarte Did Not Cause the Deaths; Did Trial Counsel Render Ineffective Assistance?

V. Did the Prosecutor Commit Prejudicial Misconduct During Closing Argument; Did Trial and Appellate Counsel Render Ineffective Assistance?

VI. Did the Cumulative Effect of the Errors in Claims I-V Deprive Duarte of Due Process and a Fair Trial?

VII. Did the Police Deprive Duarte of Her Sixth Amendment Right to Remain Silent by Questioning Her After the Car Accident?

VIII. Did the Prosecutor Commit Misconduct by Relying on an Unpublished Decision to Exclude Significant Statistical Defense Evidence About DUI Fatalities?

IX. Did the California Court of Appeal (CCA) Unreasonably Uphold the Trial Court’s Post-Trial Refusal to Release Juror Identifying Information?

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I. The Fourth Circuit and several other circuits apply the U.S.8.G. § 2D1.1(b)(1) enhancement if a firearm is found in any place where a defendant’s conspiracy was carried out. Other circuits apply a multi-factor test that requires a stronger connection between the firearm and the defendant’s offense conduct. Did the Fourth Circuit err in holding that a section 2D1.1(b)(1) enhancement was properly applied to Mr. Richardson because a shotgun was found in the trunk of a car he had previously driven to carry out drug transactions?

II. The federal courts of appeals are split on whether and when a knowing and otherwise valid appeal waiver will be enforced because enforcement would result in a miscarriage of justice, with some circuits not recognizing such an exception at all, others applying a recognizable standard, and some recognizing a miscarriage of justice only on a case-by-case basis. Did the Fourth Circuit, which applies more of a case-by-case approach, err in declining to apply a miscarriage-of-justice exception where failing to correct a guideline error in Mr. Richardson’s sentence rendered him ineligible for a sentencing reduction under Amendment 821, which was not a bargained-for benefit of his appeal waiver?

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