Unpublished Decisions
Robinson v. Ledezma, No. 10-6123 (10/14/10) (unpub'd) - Another example of how AEDPA-collateral relief rules can compromise justice, unless some spark of humanity is introduced somewhere. Everyone agrees that the defendant got screwed. He pleaded guilty to possession with intent to distribute 1.3 kilograms of marijuana. Thanks to the sweetheart deal his attorney got for him and the acquiescence of the government and the court, he not only waived his right to appeal but he ended up getting sentenced under 21 U.S.C. § 841(b)(1)(C), which had a max of 20 years, when, given the marijuana quantity, he could only have been convicted under § 841(b)(1)(D), which has a five year max. The judge sentenced him to 10 years. He's already served more than 5 years. When he finally learned of this issue he filed a § 2241 in an Oklahoma federal district court where he was incarcerated, rather than a § 2255 in the Kansas court where he was convicted. He argued he should file a § 2241 because there was no § 2255 remedy since he was way beyond the § 2255 statute of limitations. But the 10th said that he could still have a § 2255 remedy for 2 reasons. First, equitable tolling might, [not would, but might] apply because all the participants---counsel, AUSA, and d. ct.---indicated to him his sentence was lawful and he is definitely actually innocent of the (b)(1)(C) conviction, [although his lack of diligence might undermine equitable tolling on that ground]. Second, the government could waive its statute-of-limitations defense. The 10th implored the government to do that if the defendant filed a § 2255 in Kansas, as the 10th suggested he do.
U.S. v. Sanchez Marta, 2010 WL 4146197 (10/22/10) (unpub'd) - Officer discovered the defendant had been shooting at targets in a remote desert area near Anthony, NM, and had left the targets lying around. The officer did not exceed the permissible scope of his littering investigation when he asked the defendant whether he had previously been arrested. At the time of the question, the officer had intended to write a littering citation, but had not yet done so. At the conclusion of the encounter, the officer never did write a littering citation, but 2 months later the defendant was indicted for being a felon in possession of a firearm.
US. v. Montoya-Rodriguez, 2010 WL 4069479 (10/19/10) (Okl.) (unpub'd) - Officers had probable cause to arrest the defendant for concealing a firearm without a permit, even though they didn't know whether or not he had such a permit. They saw him lift up his shirt and reveal a pistol in his waistband at a gun show [probably something one should not do]. Since the pistol did not have a yellow zip-tie on it , as required by the gun show rules, it was reasonable to believe the defendant would violate other gun-related rules, like not getting a concealed-weapon permit for a concealed weapon.
U.S. v. Looper, 2010 WL 4069481 (10/19/10) (Colo) (unpub'd) - In the course of finding a sentence reasonable, the 10th comes to the conclusion that a sentence was not a "non-Guideline" sentence even though it was above the guideline range for the two combined offenses because the d. ct. just exercised its discretion to impose the within-guideline-range sentences consecutively, rather than concurrently, [as the guidelines provided for!].
Griffin v. Romero, 2010 WL 4069460 (10/19/10) (unpub'd) - The prisoner had to exhaust administrative remedies at a jail, even though the jail couldn't do anything about his toilet complaint because he was soon transferred to another facility. Futility is no excuse.
U.S. v. Sanchez Marta, 2010 WL 4146197 (10/22/10) (unpub'd) - Officer discovered the defendant had been shooting at targets in a remote desert area near Anthony, NM, and had left the targets lying around. The officer did not exceed the permissible scope of his littering investigation when he asked the defendant whether he had previously been arrested. At the time of the question, the officer had intended to write a littering citation, but had not yet done so. At the conclusion of the encounter, the officer never did write a littering citation, but 2 months later the defendant was indicted for being a felon in possession of a firearm.
US. v. Montoya-Rodriguez, 2010 WL 4069479 (10/19/10) (Okl.) (unpub'd) - Officers had probable cause to arrest the defendant for concealing a firearm without a permit, even though they didn't know whether or not he had such a permit. They saw him lift up his shirt and reveal a pistol in his waistband at a gun show [probably something one should not do]. Since the pistol did not have a yellow zip-tie on it , as required by the gun show rules, it was reasonable to believe the defendant would violate other gun-related rules, like not getting a concealed-weapon permit for a concealed weapon.
U.S. v. Looper, 2010 WL 4069481 (10/19/10) (Colo) (unpub'd) - In the course of finding a sentence reasonable, the 10th comes to the conclusion that a sentence was not a "non-Guideline" sentence even though it was above the guideline range for the two combined offenses because the d. ct. just exercised its discretion to impose the within-guideline-range sentences consecutively, rather than concurrently, [as the guidelines provided for!].
Griffin v. Romero, 2010 WL 4069460 (10/19/10) (unpub'd) - The prisoner had to exhaust administrative remedies at a jail, even though the jail couldn't do anything about his toilet complaint because he was soon transferred to another facility. Futility is no excuse.
posted by Anonymous at 3:58 PM
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