Tuesday, June 22, 2010

Procedural Maze Dooms Habeas Petitioner

Sines v. Wilner, -- F.3d --, 2010 WL 2473163 (10th Cir. 6/21/10) (CO) - affirmance of district court dismissal of 28 USC § 2241 habeas corpus petition. Mr. Sines argued he was entitled to relief under § 2241 because his remedy under 28 USC § 2255 was inadequate or ineffective to test the legality of his detention. The 10th decides the mere fact that the district court reached an erroneous decision does not render the § 2255 remedy inadequate or ineffective because it could be appealed. And while his notice of appeal on the § 2241 would have been timely filed if treated as a notice of appeal in the § 2255 proceeding, it would be treated as effective only with respect to the § 2241 because it was clear from the notice that the intent was only to appeal from the § 2241 judgment.

Defendant Seized When He Obeyed Command to Exit Truck, Not When Trooper Blocked Vehicle

US v. Salazar, -- F.3d --, 2010 WL 2473162 (10th Cir. 6/21/10) (KS) - reversal of grant of suppression motion. At issue is when Mr. Salazar submitted to the officer's show of authority. If it was when the trooper activated his emergency lights and blocked Mr. Salazar's pickup from leaving the parking lot, as the district court found, the trooper lacked reasonable suspicion. The 10th finds, however, that Mr. Salazar was not seized until he submitted to the officer's authority by obeying his command to get out of his truck, at which time the trooper had reasonable suspicion to detain him. When the seizure occurred is a legal question subject to de novo review. Whether a citizen has submitted to authority is determined by examining the view of a reasonable officer under the circumstances.

Unpublished Decisions

U.S. v. McCarthy, 2010 WL 2413024 (6/16/10) (unpub'd) - The 10th found no ambiguity in the defendant's statement to the officers: "I don't want nothing to say to anyone," and his "no" response to the question "You don't have anything to say to anybody?" [despite the resulting double-negative], regardless of the defendant's heavy accent and tendency to mumble. The officers were obligated to end questioning. Instead, their further attempts to clarify the defendant's Miranda rights violated Miranda, even though they told him not to discuss the crime until he signed the Miranda waiver form. In dissent, Judge McWilliams argued that re-reading a detainee his Miranda rights does not in itself violate his right to remain silent.

U.S. v. Mutte, 2010 WL 2413139 (6/16/10) (unpub'd) - A release pending sentencing victory for a defendant represented by our NM CJA colleague Sam Winder. The 10th affirmed Judge Armijo's release of the defendant pending sentencing, even though the defendant was convicted of a crime of violence---assault resulting in serious bodily injury. The judge provided adequate justification for determining the defendant was not a present danger to the victim, i.e., he had lived in the same community as the victim for three years since the assault without incident and he had fully complied with all conditions. Judge Armijo properly identified exceptional reasons that justified release, including the lack of danger and the "unusual" fact that the defendant had already been convicted and punished in tribal court for the same incident that occurred 3 years ago.

U.S. v. Martinez, 2010 WL 2413022 (6/16/10) (Col.) (unpub'd) - The majority attempts to justify 10th precedent that Colorado felony menacing is a violent felony under the ACCA. See U.S. v. Herron, 432 F.3d 1127 (10th Cir. 2005). The majority says there is still the use of physical force or the threat thereof involved in using poison [?], a drug [?] or a dog in order to place the victim in fear. Interestingly, in Judge Briscoe's concurrence she chastises the majority for trying to justify the Herron decision, [perhaps because it's hard to justify?].

U.S. v. Chambers, 2010 WL 2413236 (6/16/10) (unpub'd) - It was okay for the officer to conduct a protective sweep of the defendant's SUV, where he made a move to grab one of his knives after the officer told him not to, even though the sweep was conducted after the defendant was removed from the SUV. A protective sweep is different from a search incident to arrest that might be invalid under Gant. The defendant here might have been returned to the vehicle at some point and the officers justifiably did not want the defendant to have easy access to weapons at that time.

U.S. v. Cook, No. 09-2152 (6/18/10) (unpub'd) - The defendant challenged Judge Johnson's response to the defendant's shackling as follows: "I'm going to leave that up to the marshals. They run security. I'm not a security expert. . . . Whether the defendant is shackled will be up to the marshals in charge of the proceedings and I'll delegate to the marshals how they want the seating to be." The 10th thought it was a "close" question whether the court impermissibly delegated discretion to the marshals. [The 10th didn't explain why it was close]. But any error was harmless because the jury couldn't see the shackles.

U.S. v. Beals, No. 09-6174 (6/18/10) (Okl.) (unpub'd) - Above-guideline-range sentence for supervised release violation in part so that the defendant could participate in RDAP, was not an abuse of discretion, even though the defendant would not be able to participate in RDAP. There were other fine substance- abuse programs the defendant could participate in while in prison.

U.S. v. Hargrove, 2010 WL 2399348 (6/16/10) (unpub'd) - It was not a violation of the defendant's right to cross to preclude cross of the witness regarding her refusal to provide her mental health records to the defense. The witness's anxiety disorder and being "visited by the deceased victims" did not affect her perception or recall and the defense was allowed to cross on those matters. For those same reasons, it was okay not to order the witness to submit to a psych exam. It was okay to admit the preliminary hearing testimony of a witness who was unavailable for trial, even though the defense, for strategic reasons and because it did not have full discovery at that time, may have questioned the witness differently then than it would now. It was okay to admit a gun that was not specifically tied to the shooting victim. "Jurors are not fools" and they were well aware of the limitations of the evidence. An indictment charging a § 924(c) violation relying on § 841 need not allege a drug type and quantity. Charging a § 924(j) capital charge and not § 924(c) was okay where the defendant did not challenge the indictment until well after the trial was over and there was no prejudice.

Gardner v. Garner, 2010 WL 2413238 (6/17/10) (unpub'd) - Utah's clemency proceedings were not wholly arbitrary and capricious and so they were not violative of due process, even though the AG both advised the clemency board and argued for death on behalf of the state, There is no right to effective assistance of counsel at a clemency proceeding. And so the 10th helped to clear the way for death by firing squad for Mr. Gardner. By the way, Justices Stevens and Breyer subsequently voted for a stay of execution, but not the other 7.

Wednesday, June 16, 2010

Unpublished Decisions

U.S. v. Yellowbear, 2010 WL 2340819 (6/11/10) (Wyo) (unpub'd) - While the 10th noted notice and explanation violations of Rule 25 when a judge substituted for the trial judge at sentencing, it was okay for the substitute judge to sentence the defendant, although the judge had not witnessed the trial and the defendant relied in part on trial evidence and the emotional reaction of the jurors to their verdict. The trial judge discussed the case with the new judge. The 10th opined in reviewing the substantial reasonableness of a sentence that it was not bound by the parsimony principle, it only reviewed for reasonableness.

Morris v. Workman, 2010 WL 2332056 (6/11/10) (Okl) (unpub'd) - There was no violation of the defendant's right to an impartial jury when jurors expressed security concerns after noticing the defendant was taking notes during voir dire. The judge sufficiently assuaged their concerns and they said they could be impartial.

Estalita v. Holder, 2010 WL 2340814 (6/11/10) (unpub'd) - Alien files a motion to reopen her removal hearing on the grounds that she had been granted a labor certification. But 5 days later, she leaves the country pursuant to a voluntary departure deadline. The BIA initially grants her motion to reopen, but then denies it after learning the alien had left the country. The 10th somewhat acknowledges this is a sympathetic situation, but rules it must follow precedent that says DHS regs preclude the granting of an alien's motion to reopen when she's out of the country.

Lemay v. Winchester, 2010 WL 2332074 (6/11/10) (Okl) (unpub'd) - The plaintiff had sufficiently alleged the defendants' involvement in failing to provide a diabetic diet, which would be cruel and unusual punishment.

Strope v. McKune, 2010 WL 2332079 (6/11/10) (Kan) (unpub'd) - It was not cruel and unusual punishment to refuse to turn on the heat for the prison where the nights got down to 40 degrees. The warden could wait until he was sure it was going to stay cold. Each inmate was given a blanket and could wear warm clothing.

Tuesday, June 15, 2010

Denial of New Trial Motion Affirmed

US v. Carlos Lopez, No. 09-3148 (10th Cir. June 10, 2010) (unpublished): A very lengthy opinion for an unpublished decision. The Tenth Circuit affirms the district court's denial of drug defendant's motion for new trial. Defendant, arrested with methamphetamine in a cooler in his vehicle, moved for new trial based on newly discovered evidence that government witness had set him up, based on a federal prisoner's affidavit who allegedly overheard the witness telling another inmate about concocting the story so as to avoid disclosing the real courier.

The Tenth Circuit rejected defendant's belated argument that the district court used the wrong standard by applying the 5-part test of US v. Higgins, 282 F.3d 1261 (10th Cir. 2002), specifically the requirement that the new evidence would probably produce an acquittal. In the trial court, all the parties agreed Higgins applied; on appeal, defendant sought application of a lesser standard that the new evidence "might possibly result in an acquittal", based on an old Seventh Circuit case. The argument had not been raised before the district court so the Tenth wouldn't consider it, the 7th Cir. case had been overruled, and in any event, the Tenth said, more than enough evidence (including the surveillance by the agents who saw the defendant receive the methamphetamine) was presented that the new evidence did not meet even the lesser standard.

Monday, June 07, 2010

Tenth Circuit published cases

Bunton v. Atherton, ___ F.3d ___ , 2010 WL 2041266 (10th Cir. 2010). In this Colorado state first degree murder conviction and life sentence, the Tenth Circuit found that the record developed in the state post-conviction hearing on claim of ineffective assistance of trial counsel, upon which the Colorado appellate court based its affirmation of the denial of state post-conviction relief, was unassailable under AEDPA § 2254 standards. However,one is left with the sense that the evidence upon which the conviction rested was terribly faulty. The only eye-witness to the shooting had a motive to lie because he may have been sweet on the defendant’s girlfriend, plus that witness testified to being in a place where it would have been impossible to see the shooting (and was a two time felon who had been smoking pot on the night of the shooting). The second witness who saw D on the sidewalk (but did not see the shooting) had taken tranquilizers that night and was known to be a heavy drinker. State post-conviction determination that trial counsel’s decision not to call D’s girlfriend was not unreasonable, since the dead guy was also sweet on her and may have supplied D’s motive to shoot him, was not unreasonable. State post-conviction determination that D procedurally defaulted the issue of whether counsel was ineffective in not developing evidence that the witness could not see the shooting, because D did not put a trial exhibit (on which witness pinpointed where he was as the time of the shooting) into evidence at the post-conviction hearing (in spite of argument on federal review that the exhibit was not necessary to review), was an independent and adequate state procedural ground, even though its application was discretionary.

Hooks v. Workman, ___ F.3d ___ , 2010 WL 2041282 (10th Cir. 2010) . The Tenth upholds guilt phase convictions on five counts of murder (5 dead women in a crack house, defendant’s DNA present in blood, semen found at scene; match made 5 years after murders), but the majority reverses the five death sentences on grounds that the Allen instruction given during penalty phase deliberations was coercive, and an unreasonable application of Supreme Court precedent in Lowenfield v. Phelps, 484 U.S. 231 (1988).

The Tenth rejects D’s guilt phase claims of ineffective assistance of counsel ( D testified to having been at the location partying with the women and having sex with two, having left and returned after cutting himself, having seen they were dead, having touched things, having left again).

On the penalty phase issue, the majority (J. Murphy) first observes that in DP cases in OK, lack of unanimity on the issue of death does not result in a mistrial, so the need to resolve the issue is less than in the guilt phase. Lowenfield stands for the proposition that a D is entitled to an uncoerced jury verdict in the guilt phase of a DP case. Whether a particular Allen charge crosses the line into coercion depends on an assessment of all the circumstances of the case. The COA boldly describes the prosecutors’ penalty closing as intentionally misleading on the need for jury unanimity on the sentence. After 5 hours of deliberation, the jury sent out a note that it was 11 to 1 for death and wanted to get rid of the one holdout juror, indicating that it believed unanimity was required. D requested an OK instruction that recognized that if after further deliberations the jury could not decide, that it was discharged, and the judge would enter a sentence of life. The prosecutors objected, so the judge told the jury it could not grant its request (to get rid of the juror). After 10 minutes the jury said it was deadlocked. D moved unsuccessfully for a mistrial. The court gave a heavy duty Allen charge for sentence phase deliberations. The jurors continued deliberating into the early evening (7:30), and took a dinner break. The court continued to refuse D’s request that the jurors be asked if further deliberations would be helpful. After returning from dinner and being told that the court would need to know by 10:30 p.m. if they needed a room for the night, 40 minutes later, they came back with death. In spite of agreeing with D on many key areas of error, the OK court of appeals upheld the sentence.
O’Brien dissented. “I am not sure [the OK CA] was correct in that assessment [that the jury was not coerced] but I join the district court in concluding its decision was not contrary to, or an unreasonable application of, clearly established federal law, as determined by the Supreme Court.”
U.S. Supreme Court :

Jefferson v. Upton, 2010 WL 2025209 (5/24/10) (per curiam) - Another example of the S.Ct. reaching out to correct an error, this time for a good reason. The Court remanded a death penalty habeas denial by the 11th Circuit. Under pre-AEDPA law, the S. Ct. held the 11th erred by only considering the question whether the state court's factual finding was supported by the evidence, rather than also whether the state afforded the petitioner a full and fair hearing, in deciding whether the factual finding must be presumed correct. The petitioner claimed his counsel acted unreasonably when they failed to investigate the mental health damage caused by a car running over the petitioner's head when he was 2 years old. At the Georgia state court hearing, although an expert's written report said counsel should look into the head injury, counsel testified the expert had said orally that it may be a waste of time to do that. The petitioner filed an affidavit by the expert denying that conversation ever happened. The state d. ct. ex parte asked the D A to write an opinion, the d. ct. signed the opinion without notifying the defense or changing the opinion and the opinion noted testimony of a witness who never testified, calling into question whether the d. ct. even read what it signed. The S. Ct. noted that the state court finding that defense counsel was credible would not be presumptively correct if the hearing was not full and fair. The Court remanded the case to the 11th to decide whether the hearing was full and fair and suggested there might be a need for an evidentiary hearing to find out the particulars of the issuing of the state d.ct. decision. The S. Ct. insisted the petitioner had pursued the issue of the dubiousness of the factual finding in the lower courts. In dissent Justice Scalia, joined by Justice Thomas, contended the petitioner really just contended below and in his cert petition that he was not entitled to relief even if counsel's testimony was true. The majority was unfairly dissing the 11th. It's hard to say how much application this decision has with respect to interpreting current AEDPA law. But it's definitely good news.

U.S. v. Marcus, 2010 WL 2025203 (5/24/10) - Another S. Ct. decision, [here 7-1 (Justice Sotomayor recusing herself)] upholding the strength of the plain error barrier to relief, [reinforcing the importance of objecting at trial!!!]. The S. Ct. overturns the 2d Circuit's reversal of a conviction based on the notion that a retrial is necessary "whenever there is any possibility, no matter how unlikely, that the jury verdict" could have been based on an unconstitutional theory. Except when an error is "structural," which is rare, (e.g. when the defendant has no counsel or the tribunal is biased) the defendant must show a reasonable probability the outcome would have been different, under the 3rd prong, and it would be hard to establish the 4th prong ["seriously affecting the fairness, integrity or public reputation of judicial proceedings"] unless the error affected the verdict. In this case, the evidence concerned events that occurred both before and after the enactment of the statute the defendant was convicted of violating. There was no jury instruction requiring conviction only for post-enactment conduct. So there was a danger the jury convicted the defendant solely of pre-enactment conduct. But, even though the Court acknowledged this implicates a very important due process right, no reversal was warranted unless the error affected the verdict. The Court remanded for the 2d Circuit to address the matter under the correct standard. Justice Stevens dissented. Although he acknowledged the 2d Circuit applied the wrong standard, the conviction should be reversed under the correct standard, he concluded. He also opined that the Court's plain error doctrine "has trapped the appellate courts in an analytic maze that is more liable to frustrate than to facilitate decision-making."

Robertson v. U.S. ex rel. Watson, 2010 WL 2025205 (5/24/10) - By a 5-4 decision the Court dismissed the writ of certiorari as improvidently granted without explanation. An odd assortment of justices: C.J. Roberts, J. Scalia, Kennedy and Sotomayor, dissent. C.J. Roberts opines that a private person could not constitutionally initiate a criminal contempt proceeding in a Congressionally-created court in her own name, rather than in the name of the government. In this case occurring in D. C., the government entered a plea agreement with the defendant for assaults on the plaintiff. In the agreement, the government agreed not to prosecute the defendant for his assault on the plaintiff on June 26, 1999. The plaintiff initiated a criminal contempt action against the defendant for his June 26 assault because it violated a protective order. The court ended up sentencing the defendant to more time in jail. The dissenters felt, among other problems, that a private party pursuing a criminal contempt action might not have the constitutional duties, such as providing Brady material, that the government has. Justice Sotomayor stressed in a separate dissenting opinion that the dissenters were not commenting on the propriety of a private person pursuing civil contempt proceedings. The dissenters don't hint as to why the majority dismissed the writ. There might have been a problem with preserving the error below.

Cert grant:

Skinner v. Switzer, 2010 WL 545500 (5/24/10) - Whether a state prisoner seeking access to evidence for DNA testing may pursue his claim in a federal civil rights action or may only go through federal habeas corpus.

The 10th Circuit:

U.S. v. Quaintance, 2010 WL 1981028 (5/19/10) (unpub'd) - The 10th upholds Judge Herrera's determination that the defendants were not sincere about their religious beliefs with respect to marijuana, The 10th applies a clearly erroneous standard, despite the defendants' argument that the constitutional-fact doctrine required de novo review. The 10th reasoned that, even when that doctrine applies, credibility determinations are subject to clear error review. Under the clearly erroneous standard, there was sufficient support for the conclusion that the defendants just used religion as a cover. The 10th strongly suggests in a footnote that factual questions underlying Religous Freedom Restoration Act issues should not be decided by the trial court pre-trial.

U.S. v. Allums, 2010 WL 1983676 (5/19/10) (unpub'd) - The 10th discusses at some length the law regarding under what circumstances it's okay to call a probation or parole officer to identify the defendant. Here, the probation officer identified the bank robbery defendant's voice, after stating his profession and that he met the defendant regularly. The 10th thought it was a close question whether this was okay, but held any error harmless. Nevertheless, the case is a good place to start research if a similar question arises.

U.S. v. Waite, 2010 WL 1971917 (5/18/10) (unpub'd) -The government did not violate its plea agreement stipulation that no more than 5 kgs. of meth should be attributed to the defendant, when it wrote that the PSR's ascribing of 20 pounds of meth to the defendant was not unreasonable. The government also made note of its stipulation. The government didn't have to argue against the PSR's conclusion.

U.S. v. Toledo, 2010 WL 1971909 (5/18/10) (unpub'd) - Another troubling 4th Amendment decision. The 10th upholds a d. ct. ruling that the mother's consent to search her home was voluntary and attenuated any taint from her witnessing the illegal entry into her home to apprehend her son. District Judge Pollack from Eastern Pennsylvania dissented, stating he did not think the mother would feel free to refuse consent in those circumstances.

U.S. v. Stewart, 2010 WL 1948682 (5/17/10) (unpub'd) - The trial judge was not obliged to recuse himself, even though the judge noted he had seen the defendant on TV and because of that he didn't think the defendant could represent himself. The judge conducted the proceedings fairly and eventually actually granted the defendant's motion to represent himself.

Richard v. Bokor, 2010 WL 1983681 (5/19/10) (unpub'd) - The d. ct. did not abuse its discretion to grant an extension of time to file an appeal where the plaintiff timely filed the notice of appeal in state court.