Heraclio Osorio-Arellanes was convicted of murder and related charges in connection with the death of a border patrol agent, Brian Terry, in a firefight in 2010 in a remote mountain area south of Tucson, Arizona. Osorio (the Ninth Circuit’s shorthand) fled into Mexico and was arrested seven years later by Mexican authorities. U.S. officials interrogated him in a Mexico City prison. During the interrogation, he confessed to essential elements of the crime on the advice of the Mexican attorney he had chosen.
Osorio argued on direct appeal from his conviction that he had received ineffective assistance of counsel in violation of his Sixth Amendment rights. In yet another Ninth Circuit opinion from Friday, a liberal panel majority (in United States v. Osorio-Arellanes) agreed with him and overturned his conviction. Judge Michael Hawkins wrote the majority opinion, which Judge Roopali Desai joined.
In dissent, Judge Andrew Hurwitz observes that the majority “plows significant new doctrinal ground” and objects that it does so on direct appeal, even though the Supreme Court “has counseled that ‘few ineffective-assistance claims will be capable of resolution on direct appeal.’” (Cleaned up.) Hurwitz explains that proper consideration of Osorio’s Sixth Amendment claim “would benefit from factual development of the record” and that this is therefore the typical ineffective-assistance claim that should be decided in the habeas context.
Hurwitz was appointed by Barack Obama, so here as in Judge Susan Graber’s scathing dissent in the wrongful-discharge case, we have one appointee of a Democratic president vigorously objecting to a majority ruling by two other Democratic appointees.