Unpublished Decisions
U.S. v. Griffin, 2008 WL 4330388 (9/23/08) (unpub'd) - In this case, the 10th holds that the defendant waived, [not forfeited, which would allow for plain error review] his right to challenge on appeal absent-witness statements at a revocation hearing because when the court asked whether the defense objected to their admission the defense said "no." This was "not an inadvertent failure to object but an explicit and deliberate disavowal of an objection." So trial lawyers now really have to think carefully about whether they want to indicate their lack of objection.
U.S. v. Pereira-Rico, 2008 WL 4356255 (9/25/08) (unpub'd) - The 10th reviews a sentence for substantive unreasonableness, even though the defendant called his request for a below-guideline-range sentence a downward departure, not variance,motion. It was enough that he raised grounds linked to the reasonableness of the sentence under § 3553(a). The 10th then upheld the within-guideline-range sentence.
Martinez v. Martinez, 2008 WL 4332539 (9/24/08) (unpub'd) - The district court abused its discretion when it dismissed a § 1983 action for lack of prosecution without mentioning the plaintiff's letter received 5 days before the dismissal. In the letter, the plaintiff explained he didn't timely respond to the magistrate's orders because he had not received the orders and not provided a new address due to his arrest and placement in segregation during the relevant times. It didn't seem likely the plaintiff had abandoned his case when he had been a very active litigant before his arrest. So, any waiver attributed to a failure to timely object to the magistrate's decision was overcome on fundamental-miscarriage-of-justice grounds.
Watkins v. Leyba, 2008 WL 4335466 (9/24/08) (unpub'd) - On the other hand, this habeas petitioner's appeal is dismissed on the grounds that his notice of appeal was untimely. The petitioner had not received the order denying his petition because he had moved. After the order was issued and before his time would have run out, he sent a change of address and asked for the status of his case. The clerk did not respond. The clerk did respond to a second letter but by then it was too late.
U.S. v. Pereira-Rico, 2008 WL 4356255 (9/25/08) (unpub'd) - The 10th reviews a sentence for substantive unreasonableness, even though the defendant called his request for a below-guideline-range sentence a downward departure, not variance,motion. It was enough that he raised grounds linked to the reasonableness of the sentence under § 3553(a). The 10th then upheld the within-guideline-range sentence.
Martinez v. Martinez, 2008 WL 4332539 (9/24/08) (unpub'd) - The district court abused its discretion when it dismissed a § 1983 action for lack of prosecution without mentioning the plaintiff's letter received 5 days before the dismissal. In the letter, the plaintiff explained he didn't timely respond to the magistrate's orders because he had not received the orders and not provided a new address due to his arrest and placement in segregation during the relevant times. It didn't seem likely the plaintiff had abandoned his case when he had been a very active litigant before his arrest. So, any waiver attributed to a failure to timely object to the magistrate's decision was overcome on fundamental-miscarriage-of-justice grounds.
Watkins v. Leyba, 2008 WL 4335466 (9/24/08) (unpub'd) - On the other hand, this habeas petitioner's appeal is dismissed on the grounds that his notice of appeal was untimely. The petitioner had not received the order denying his petition because he had moved. After the order was issued and before his time would have run out, he sent a change of address and asked for the status of his case. The clerk did not respond. The clerk did respond to a second letter but by then it was too late.
posted by Anonymous at 2:47 PM
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