- 9 - Petitioner opposes collateral estoppel. Petitioner also argues that he did not have a fair opportunity to contest the $14,611 figure at trial in the criminal proceeding and that he received ineffective assistance of counsel in the criminal proceeding. Collateral estoppel precludes relitigation of any issue of fact or law that was actually litigated and necessarily determined by a valid and final judgment. Montana v. United States, 440 U.S. 147, 153 (1979). Collateral estoppel applies when “(1) there was a full and fair opportunity to litigate the issue in the previous action; (2) the issue was actually litigated in that action; (3) the issue was lost as a result of a final judgment in that action; and (4) the person against whom collateral estoppel is asserted in the present action was a party or in privity with a party in the previous action”. In re Palmer, 207 F.3d 566, 568 (9th Cir. 2000) (quoting Pena v. Gardner, 976 F.2d 469, 472 (9th Cir. 1992); Parklane Hosiery Co. v. Shore, 439 U.S. 322, 329 (1979)). We are satisfied that the issue in the present case regarding fraudulent intent is the same as the issue that was presented and determined adversely against petitioner in the criminal case. The underlying issue in this case is that of fraud. Petitioner’s prior conviction was based on fraud; i.e., the charge of his knowingly and willfully attempting to evadePage: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Next
Last modified: May 25, 2011