Circuit Slams Advice From Judge With Conflict

     (CN) — The Ninth Circuit issued a stinging rebuke after advice from a judge with an irrefutable conflict of interest kept an inmate behind bars.
     Saying “such actions do not satisfy the appearance of justice,” the Ninth Circuit last week ordered the lower court to grant Daniel Angel Rodriguez habeas relief and potentially early release from prison.
     Rodriguez has spent the last two decades behind bars for a home-invasion robbery where the victim was a federal judge with Florida’s Southern District.
     At trial in 1995, U.S. District Judge Shelby Highsmith testified that he was in his garage a year earlier when Rodriguez pistol-whipped him and stole his Rolex.
     Rodriguez purportedly fled when Highsmith revealed his occupation. The judge said he managed to fire off two shots of his own as Rodriguez fled the scene.
     Because of Highsmith’s involvement in the case, every judge in Southern District had to recuse themselves from Rodriguez’s federal trial.
     U.S. District Judge Robert Propst came in from Birmingham, Alabama     , to oversee proceedings, which ended with a jury convicting Rodriguez for being a felon in possession of a firearm.
     Though he received a federal prison sentence of 272 months, Rodriguez still awaited disposition of unrelated state charges.
     He spent three years in a state prison before the U.S. Bureau of Prisons took custody of him in 1998.
     Rodriguez requested credit for the three years of state imprisonment, leading the BOP to solicit a recommendation from the federal judge who sentenced him, Propst.
     Rather than send the request to Propst in Alabama, however, BOP directed its request to the Southern District of Florida, where the trial occurred.
     That court’s chief judge, Federico Moreno, replied in 2010. Even though Moreno had recused himself from the 1995 trial based on conflict of interest, the Ninth Circuit said he adopted the “guise of a neutral adjudicator” in advising the BOP to reject Rodriguez’s request.
     “To now allow Mr. Rodriguez to be released on Jan. 18, 2015 rather than October 19, 2018 is not only dangerous to the public but an insult to the victim in the federal case, Judge Highsmith, let alone the victims of the armed robbery in the state case,” Moreno had said.
     Rodriguez was incarcerated in the Eastern District of California and filed suit there when the BOP turned down his request.
     That court denied Rodriguez habeas relief, but a Pasadena-based panel of the Ninth Circuit reversed on May 25.
     District courts lack jurisdiction over discretionary designation decisions, but they do “have jurisdiction to decide whether the Bureau of Prisons acted contrary to established federal law, violated the Constitution or exceeded its statutory authority,” U.S. Circuit Judge Barry Silverman wrote for a three-judge court.
     Finding that is what happened here, Silverman said “there is no doubt that the Bureau of Prisons doubly erred in considering Chief Judge Moreno’s letter.”
     “First, he was not the judge who imposed the sentence as 18 U.S.C. § 3621(b)(4) contemplates; and second, he had been recused from the case and should not have participated in it in any way,” the ruling continues.
     Since the bureau “specifically cited and relied on the Moreno letter in denying Rodriguez’s application,” Silverman said there is “no way that this error can be deemed harmless.”
     In a partially dissenting opinion, U.S. Circuit Judge Wallace Tashima said his colleagues went too far in finding that “the chief judge’s letter was a violation of the recusal statutes or of due process.”
     Before his death in December, Highsmith worked in the Southern District of Florida for 16 years, presiding over high-profile cases including civil claims stemming from the Elian Gonzalez custody controversy.
     Rodriguez will be released if the prison bureau grants his request for the time-served credit upon reconsideration.

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