Interesting Unpublished Decisions

U.S. v. Gaines, 2007 WL 241293 (1/30/07) - Important case for anyone whose client was evaluated by Dr. Thomas Patenaude. The d.ct. erred when it refused to hold an evidentiary hearing regarding whether the defendant had been incompetent at the time of his guilty plea. A letter from BOP informed the d.ct. that an internal investigation of the doctor revealed sufficient evidence to question the credibility and accuracy of his psychological evaluations. The d.ct.'s holding at the plea hearing that the defendant was competent did not preclude relief because those findings were made before receipt of the BOP letter. If the doctor's report was the primary reason for the competency finding, the defendant would be entitled to collateral relief. The defendant had good reason for not raising the competency issue on appeal because the letter was sent after the appeal.

U.S. v. Crook, 2007 WL 182998 (1/25/07) - A example of the weakness of the Double Jeopardy Clause. It was okay to pursue an embezzlement prosecution under 18 U.S.C. § 666, even though the d.ct. dismissed for lack of evidence a previous embezzlement prosecution under 18 U.S.C. § 641 based on the same conduct. The d.ct. dismissed the § 641 charge because § 641 required the money taken to be U.S. property. § 666 doesn't have that element.

Heckard v. Tafoya, 2007 WL 241280 (1/30/07) - A previous 2241 petition challenging the petitioner's confinement conditions did not make petitioner's subsequent 2254 petition a successive petition that has to overcome ultra-difficult obstacles to be granted.

U.S. v. Richardson, 2007 WL 172192 (1/24/07) - The 10th feels compelled to follow a 10th Circuit case, U.S. v. Manjarrez, 348 F.3d 881 (10th Cir. 2002),which two of the three panel members seem to find questionable, [describing the result as "bizarre"], that a person who moves to the right without signaling to use certain toll booths in Oklahoma violates a state statute requiring the use of signals when exiting, even though such a move does not cross any lane lines and involves going back onto, not leaving, the highway. The two concurring judges noted that use of a signal might actually confuse other motorists.

Martinez v. Crank, 2007 WL 172213 (1/24/07) - In rejecting a prisoner's complaint about verbal abuse by a guard, the 10th says: "it could be that, despite the age-old saying words may be hurtful, nevertheless, something more akin to sticks and stones is required to state an 8th Amendment claim."

Durham v. U.S., 2007 WL 293515 (2/2/07) - The 10th denies the following claim without any discussion: the defendants surgically implanted "optical electron microcircuits" in teeth fillings and utilized the signals broadcast by these devices to monitor the plaintiff's location and speech to assist a larger project of investigating and prosecuting the plaintiff as an enemy combatant.