United States v. McGowan, No. 10-50284 (9th Cir. 2012)
Annotate this CaseDefendant, a former state prison guard, appealed his conviction and sentence stemming from his assault on two inmates. The court previously reversed the district court's grant of a judgment of acquittal following the jury's verdict. On appeal, defendant contended that the district court erred in failing to conditionally rule that he was entitled to a new trial if the judgment of acquittal were to be reversed, and that he was deprived of the effective assistance of counsel when his trial counsel failed to make a new trial motion. The court held that the district court did not err in failing to make a conditional new trial ruling at the time it granted defendant's motion for acquittal; the court could not determine whether defendant's counsel was constitutionally deficient in failing to request such a ruling; defendant's conviction was therefore affirmed without prejudice to his filing a claim for ineffective assistance of counsel in an 28 U.S.C. 2255 proceeding; defendant's right to due process was violated when the district court relied on unreliable, unsubstantiated allegations in imposing his sentence; and defendant's sentence was vacated and remanded for further proceedings before a district judge who had not previously presided over the case.
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