State Habeas Petitioner's Claims Rejected

Sandoval v. Ulibarri, -- F. 3d --, 2008 WL 4966218 (10th Cir. 11/24/08) - a rejection of various § 2254 claims re: NM convictions of aggravated battery and shooting at a vehicle. Mr. Sandoval did not establish that he was prejudiced by counsel's failure to follow rules re: pretrial disclosure of dr. expert's PTSD testimony, which resulted in state court's limitation of that testimony to PTSD generally and exclusion of testimony about how PTSD contributed to Sandoval's offense behavior. Sandoval's trial testimony was not entirely consistent with the PTSD theory.

Confrontation claim re: admission of victim's preliminary hearing testimony was waived in state court by defense admission that state made reasonable effort to locate witness it said was unavailable at trial. Even if Sandoval's counsel performed unreasonably at the preliminary hearing by failing to thoroughly cross-examine victim, it did not prejudice Sandoval at trial. It was not IAC to stipulate to state's reasonable attempt to subpoena the victim to testify at trial because state's efforts met reasonableness standard. No Brady violation was shown because petitioner failed to establish that evidence contained in undisclosed medical report of victim would have been material or exculpatory. And no evidentiary hearing was called for as proffered evidence would not have established entitlement to habeas relief.

Amended Rules of Criminal Procedure Effective Dec. 1

New Rules of Criminal Procedure go into effect Monday, December 1, 2008. Almost all the changes are attempts to implement the Crime Victims Rights Act, 18 U.S.C. § 3771. One important amendment is to Rule 17(c). The new rule provides that any subpoena requiring the production of personal or confidential information about a victim may be served on a third party only by court order and before entering the order the court must require that the victim get notice to enable the victim to move to quash.

Other changes: Rule 1 defines victim by referring to the relevant provision, § 3771(e), which eliminated the requirement that the victim be the victim of a crime of violence or sexual abuse. Any crime will do.

Rule 12.1, the alibi notice rule, requires the government to provide the address and phone number of the victim in response to an alibi notice only if the defendant establishes a need for that information.

Under amended Rule 18, the court must set the place for trial with due regard for the convenience of any victim , as well as the defendant, etc.

Rule 32 deletes the requirement that presentence report information about victim impact must be verified and stated in a non-argumentative style, [since no other information has that requirement]. The new rule also requires that "any victim" who is present at sentencing be "reasonably heard." The new language is meant to ensure that,except in unusual circumstances, every present victim should be able to speak to the judge.

Rule 60 provides for all the victims' rights, which include: timely notice of any public court proceeding; the court must make every effort to afford the fullest attendance possible for victims and consider reasonable alternatives to exclusion [e.g., perhaps having the victim testify first in the government's case in chief]; the right to be reasonably heard at any proceeding regarding release, plea or sentencing; and the right to seek reopening of a plea or sentence if the victims are denied the right to be heard.

Unrelated to victims' rights, a provision has been added to Rule 41 to allow the issuance of a warrant by a magistrate judge with respect to certain U.S. territories or U.S. diplomatic or consular buildings.

Circuit Snippets

The U.S. District Court in Middle District Pennsylvania concluded that the private-search doctrine did not authorize law enforcement officers to copy a computer's hard drive and scan all of its contents after a private person found evidence of possible crimes in a few files. In this case, the landlord put the defendant's possessions, including his computer, on the curb after defendant failed to pay his rent. Someone else took possession of (stole?) the computer, found what the person thought might be child porn, and in an excess of community zeal, deleted the files and told the police, who then searched all the files. The district court rejected the government's argument that the hard drive was a "single container" and held that the government's search exceeded the scope of the third party's search. There's an interesting discussion of how hard disks work. US v. Crist, No. 1:07-cr-211 (M.D. Pa, 10/22/08)

The 9th Circuit held that, when determining whether a prior conviction qualified as a crime of violence to support a sentencing enhancement, the court could rely on facts in a California "minute order". US v. Snellenberger, en banc., No. 06-50169, on rehearing 480 F.3d 1187 (9th Cir. 10/28/08)

The Fifth Circuit struck down a condition of probation that allowed the crack defendant to reside only with blood relatives and her spouse as overbroad. US v. Woods, No. 0751491 (5th Cir. 10/28/08)

A defendant who seeks to withdraw a guilty plea before sentencing based on the claim that his previous counsel failed to tell him about a possible suppression motion is entitled to an evidentiary hearing, the 9th Cir. held. US v. McTiernan, No. 07-50430 (9th Cir. 10/21/08)

A district court can require a defendant who is representing himself to have stand-by counsel at the counsel table without violating the defendant's sixth amendment rights, the D.C. Circuit held. Hill v. US, No. 05-CF-588 (D.C. Cir. 10/30/08)

The mere fact that a defendant may have refurbished and sold some guns does not disqualify him from receiving the benefit of the reduction under USSG 2K2.1(b)(2) as a collector. However, the guideline applies only when "all" the guns are for sporting or collection purposes, and the defendant admitted to keeping one of the guns for security, so, no reduction. US v. Miller, No. 08-1069 (7th Cir. 10/27/08)

The district court could properly enhance the defendant's sentence based on the fact he was a cop at the time he participated in a drug conspiracy, the 1st Cir. held. The court emphasized this was not an abstract rule justifying a general enhancement for every cop who is convicted of such a crime; this defendant actually wore his uniform while dealing drugs and thus set "a very bad example." US v. Arroyo, No. 07-2423 (1st Cir. 10/27/08)

Habeas Relief Granted Where Plea Colloquy Showed Def. Did Not Understand "Depraved Mind" Element of Charge

Hicks v. Franklin, -- F.3d --, 2008 WL 4900135 (10th Cir. 11/17/08) - reversal of denial of habeas relief!!! State court's holding that Mr. Hicks voluntarily pled to second degree murder was an unreasonable application of clearly established law. Mr. Hicks was charged with first degree murder stemming from the death of his wife from a fire that took place after someone other than Mr. Hicks placed on a hot plate a jar of flammable liquid left from a methamphetamine cook Hicks conducted a couple hours earlier. Just before trial, the charge was amended to second degree murder, which under Oklahoma law includes an element of conduct evincing a depraved mind in extreme disregard of human life. The plea colloquy made clear that Hicks did not understand that element and the court's explanation suggested the charge lacked a mens rea requirement. Because Hicks did not receive true notice of the depraved mind element, which is a critical element of the offense to which he pled, his plea was involuntary.

Sentencing Enhancement Based on Co-Defendant's Possession of Guns Upheld

U.S. v. Moreira, 2008 WL 4787157 (11/4/08) (unpub'd) - The two-level enhancement for firearm possession in connection with a drug trafficking offense applied where guns were hidden in co-conspirators' homes with drugs, even though there was no evidence the defendant knew about the guns. The gun possession was reasonably foreseeable because the DEA agent testified large narcotics traffickers almost always carry weapons with them. Apparently there was no evidence the defendant was aware of that nugget of wisdom.

SORNA Does Not Apply to Someone Who Only Traveled Interstate Before Effective Date of Statute

U.S. v. Husted, 2008 WL 4792339 (11/5/08) (Published) - A SORNA win for the defense. Under a plain language analysis, SORNA ("Sex Offender Registration and Notification Act") does not apply to someone who only traveled interstate before SORNA's effective date. One of the elements of SORNA [unless the person is convicted of a federal sex offense] is the person "travels" in interstate commerce. The present tense of that word and of the other related words in the statute, [e.g., enters, leaves resides], indicates travel that has not already occurred. So "travels" only refers to travel after SORNA's effective date. This does not lead to an absurd result, as the government claimed. Congress may have wished to avoid the ex post facto concern the defendant raised. The broad purpose to protect the public from evil sex offenders cannot create an ambiguity in a separate, specific portion of the statute where no ambiguity exists. Plus there is a presumption against retroactive application of a statute. Unclear legislative history couldn't overcome the plain statutory language.

Counsel Not Ineffective for Failing to Obtain Victim's Mental Health Records

Wickham v. Friel, No. 08-4023, 11/14/08 - Trial counsel was not ineffective in failing to obtain mental health records of teenage victim of aggravated sexual assault, where obtaining such records under Utah law was quite difficult and required a detailed showing that such records contained information material to the defense, and counsel had no reason at the time of trial to believe that victim’s records included evidence that she had previously lied about being sexually assaulted.

Co-Defendant's Statements Admissible in Conspiracy Case

US v. Merrick, No. 0805007, 11/13/08 - Admission of codefendant’s statements made in course and in furtherance of the conspiracy upheld in this PWID/conspiracy case. The district court impliedly found that sufficient evidence of the conspiracy, and defendant’s participation in it, had been presented by overruling defendant’s objection to the admission of the statements, and then explicitly put those findings on the record the next day. This easily satisfied FRE 801(d)(2)(E). Also, sufficient evidence supported the guilty verdicts.

Habeas Relief Reversed in KS "Partial Verdict" Case

Tomlin v. McKune, No. 07-3286., 11/13/08 - District’s court’s grant of habeas relief to state petitioner reversed. Defendant was charged in Kansas state court with one count of rape and one count of aggravated indecent liberties with a minor. As to the rape count, the jury was instructed on aggravated indecent liberties as a lesser included offense. The jury sent out a note indicating that was split on the rape count and asked for help in breaking the deadlock. The court gave a standard Allen charge and sent them back to deliberate further. The defense then moved for a mistrial, which the court took under advisement. The jury then sent out another note, stating that it had moved to 11-1 guilty on lesser charge, and further stating, “We have all agreed to Not Guilty to Count 1 Rape.” It also indicated that most jurors believed that further deliberations would not change the holdout’s mind. At that point, the state moved for a mistrial, which the judge declared. Defense counsel did not withdraw its mistrial motion, object to the state’s motion, or do anything at that time to try to confirm or formalize the apparent acquittal on the rape charge. A few days later, the defense filed a motion for judgment of acquittal on the rape charge, based on the note. The court denied the motion, holding that it was not clear whether the note reflected an actual acquittal, as opposed to being a compromise vote to bring deliberations to a close. The defendant was retried and was convicted of both of the original counts. He got almost 28 years on the rape count

From here, the case revolves around the concept of “partial verdicts.” Kansas has a procedural rule requiring the verdict form to be signed, and further requires the court to inquire of the jury if that is in fact their verdict. Beyond that, a Kansas case had adopted from a California case the rule that, in cases involving lesser included offenses, the jury has to be unanimous about something - guilty on the higher, guilty on the lesser, or not guilty. Absent unanimity on something, the defendant can be retried on the original charge.

The decision to declare a mistrial was affirmed on direct appeal because counsel consented to it and no verdict had been returned, so defendant could be retried on the rape count. Defendant then filed a state habeas on the grounds of ineffective assistance. He lost in the trial court, which was affirmed by the Kansas Court of Appeals (KCOA), because Kansas law barred partial verdicts, so counsel could not have been ineffective in failing to seek one. Then comes the federal habeas. The district court granted it, holding 1) the KCOA decision did not rest on an adequate and independent state law ground because the ban on partial verdicts was not regularly followed or firmly established in Kansas law, 2) trial counsel was ineffective because it was objectively unreasonable for counsel to consent to the mistrial and not move to publish the verdict of not guilty on the rape charge, or, in the alternative, that the Kansas decision was an unreasonable application of Strickland v. Washington, and 3) defendant was prejudiced by counsel’s deficient performance.

A majority of the 10th Circuit panel rejected all of these positions. It held first that the district court erred in essentially disregarding the KCOA’s ruling on Kansas law regarding partial verdicts. Next, applying AEDPA deferential review because the KCOA reached the merits of the Strickland claim, the 10th held that Kansas’s application of Strickland was reasonable, in that counsel was not deficient for not moving for something not recognized by state law or in failing to advance an argument for changing Kansas law, and because it is not clearly established by any Supreme Court holding that federal constitutional law compels the acceptance of partial verdicts in these circumstances, which, if that were the rule, would create a Fifth Amendment double jeopardy bar to retrial of the rape count..

Judge Holloway dissented. To him, defendant’s claim rests entirely on Strickland, which is by itself clearly established Supreme Court law, independent of any double jeopardy analysis. Viewed that way, any decent lawyer would have immediately tried to take advantage of what appeared to be a unanimous acquittal by at least trying to get formalized by insisting that the jury be polled. Failing to perceive the double jeopardy implications of inaction was professionally unacceptable. Judge Holloway found a very high likelihood that, had the jury been polled, its unanimity for acquittal, and the finality of that decision, would been confirmed.

Dismissal of Prisoner's 8th Amendment Claim Affirmed

Duffield v. Jackson, ___ F.3d ___, 2008 WL 4780922 (10th Cir. 2008)
No interest of justice exception to pro se inmate’s failure to object to (or failure to ask for an extension of time to object to) magistrate’s recommendation dismissing his § 1983 8th Amendment claim of deliberate indifference regarding inadequate medical care. Plaintiff failed on the merits to show the defendants’ actions rose to the level of “unnecessary and wanton infliction of pain,” and failed to show an affirmative link between each defendant and the constitutional deprivation.

Filing of Prior Frivolous Asylum Petition Prevents Later Adjustment of Status

Ribas v. Mukasey, ___ F.3d ___, 2008 WL 4781711 (10th Cir. 2008)
Immigration judge determination that first asylum petition was frivolous, which was upheld by the board of immigration appeals and not appealed, was a final judgment which barred Plaintiff from adjustment of status when he married a US citizen. Court determines that Plaintiff received adequate notice about the consequences of filing a frivolous petition and that the frivolousness determination was final before Plaintiff applied for adjustment of status.

Sentencing Commission News

The Sentencing Commission has posted a number of new items at its website. Some interesting items include:

The full text of the Guidelines effective November 1, 2008, are available for downloading here.

The Commission's Preliminary Crack Cocaine Retroactivity Data Report is also available.

The Commission hosted a symposium on alternatives to incarceration in July, and the materials from that conference are now available here as well.

The data on cases decided after the decisions in Gall and Kimbrough has been posted here.

"Gibberish" Leads to Dismissal of Appeal

Punchard v. Jeffries, 2008 WL 4748530 (10/30/08) (unpub'd) - The 10th dismisses the appeal on the ground that Public Minister Billy Punchard's brief is "gibberish."

PC to Arrest Civil Rights Plaintiff with .02 BAC Existed

Titus v. Ahlm, 2008 WL 4726233 (10/28/08) (unpub'd) - In a civil rights case, the officer had probable cause to arrest the plaintiff, even though he only blew a .02 on the breath alcohol test because in New Mexico DWI can be impairment "to the slightest degree." The plaintiff did have watery and blood shot eyes, said he had drunk a beer and failed two of the ever-reliable field sobriety tests.

Tenth Hints That Sentencing Challenges Must Address Both Procedural, Substantive Prongs

U.S. v. Romero-Resendez, 07-2176& 07-2177 (10/31/08) (unpub'd) - The 10th implies it will not find a defendant's substantial rights have been affected under the plain error reversal standard if the defendant has only challenged the sentence's procedural reasonableness and not its substantive reasonableness.

Denial of Crack Amendment Relief Reversed

U.S. v. Price, 08-5048 (10/31/08) (unpub'd) - The 10th overturns the denial of crack amendment relief because the district court applied the wrong drug quantity level to rule the guideline range had not been lowered by the amendment. The court thought the original sentencing court had found a much higher amount than it actually had.

Absent Witness was Unavailable So State Could Use Prelim Testimony Despite Crawford

Malone v. Six, 07-3268 (10/31/08) (unpub'd) - In a habeas case applying de novo review [because the state court did not rule on the issue but instead found any error harmless], the 10th held Crawford's unavailability requirement was met so as to allow the admission of an absent witness's preliminary hearing testimony.

Two criteria favored the petitioner---(1) the witness was a very important witness; and (2) the charge was serious, even though the petitioner received "only" 44 months, since he could have received 40 years. But the state had made sufficient efforts to subpoena the witness. She was apparently trying to evade service and the state believed she may have been living again with the defendant. An officer knew where the witness lived but no one ever answered the door or answered her phone, despite repeated attempts. State law allowed service by leaving the subpoena at the witness's residence and that tactic had worked to get the witness to testify at the preliminary hearing. But the 10th excused the officer from trying that again because the defendant might intercept the subpoena and there was no evidence the state would have tried that method if it did not already have the preliminary hearing testimony. The 10th did concede this was a "close" case.

Successive Nature of 2255 Petition Appealable

U.S. v. Harper, 2008 WL 4756393 (10/31/08) (Published) - The district court's denial of a 28 USC § 2255 motion on the grounds that it was successive and had not been previously authorized by the 10th is a final order appealable to the 10th. It is also subject to the § 2253 certificate of appealability requirement. The district court had obviously made the correct decision in this case, the 10th says.

Applying Plain Error, Conviction for Assault with Serious Bodily Injury Affirmed Despite Possible Jury Confusion

U.S. v. Poole, 2008 WL 4756164 (10/31/08) (Published) - The jury found the defendant guilty of both the charged offense of assault resulting in serious bodily injury and the lesser-included offense of simple assault, even though the jury was instructed not to consider the defendant's guilt of the lesser offense if it could unanimously find the defendant guilty of the greater offense. When the court received the verdict, it declared in front of the jury that the simple assault conviction was a "nullity." The court then polled each juror asking "Is this your verdict?" All the jurors answered yes to that question. When asked if the defendant wanted to argue anything before the jury was discharged, defense counsel said "no." After the jury was discharged, defense counsel moved for a mistrial on the grounds that the verdict was ambiguous. The district court denied the motion. The 10th reviewed for plain error because counsel had not objected before the jury's discharge, when any ambiguity could have been resolved.

The 10th found no error. First, there was no ambiguity so obvious as to trigger the court's duty to resolve it. The verdicts were actually completely consistent with each other. The possibility that the two verdicts were the result of an improper compromise was at best latent and so did not require district court action. Second, the district court did clear up any confusion by polling the jury about the greater charge after declaring the simple assault count a nullity. The 10th dismissed the defendant's claim the jurors might not have understood what the court meant by "nullity" based on the interesting notion that it is a "bedrock principle" of our system that we presume jurors understand what the trial court says, even if they actually don't. The 10th also rejected the defendant's claim that when the court asked the jury "is this your verdict" the jury might have thought the court was referring to both verdicts rather than just the greater offense one. The 10th believed, given the jurors' make-believe understanding of "nullity," they must have known the judge was referring only to the greater offense verdict. Furthermore, the judge was not obligated to sua sponte require the jurors to deliberate further because it was clear the jury unanimously found the defendant guilty of the greater offense.