S. Ct. and 10th Cir. cases. First, the S. Ct.:
Wilson v. Corcoran, 2010 WL 4394137 (11/8/10) - The S. Ct. continues its practice established last year of per curiam reversals to correct errors. This case goes against the capital habeas petitioner. The 7th Circuit granted relief on the grounds that the Indiana S. Ct. had unreasonably determined the trial court properly imposed the death penalty solely based on statutory aggravating factors. Had the trial court based the sentence on non-statutory aggravating factors, it would have violated state law, but, according to the S. Ct., the 7th Circuit had not found such state law error violated federal law. As we all know, federal habeas is only available for violations of federal law. The S. Ct. remanded the case for the 7th to try again.
10th Cir. cases:
Cavanaugh v. Woods Cross City, 2010 WL 4332289 (11/3/10) (Utah) (Published) - According to the plaintiff's allegations, police responded to a husband's request to find his wife. He told the officers they had a fight during which his wife tried to put him in a closet and then she stormed off with a kitchen knife under the influence of alcohol and pain medications. Eventually an officer saw the wife walking towards her home. He could see she was not holding a knife. As the wife and the officer drew near each other, the wife veered off the walkway towards her front door, cutting across the lawn---walking quickly, but not running. The officer followed her and while he was no more than 6 feet away tasered her without warning, causing her to fall and hit her head on the concrete steps. The taser shot "seized" the wife in violation of the 4th Amendment. The intrusion was quite severe since a taser sends up to 50,000 volts of electricity and causes excruciating pain. The officer was investigating a minor offense--a non-injurious assault---and it was not objectively reasonable to believe the wife posed an immediate threat. The wife was not actively resisting or fleeing arrest. She didn't have any reason to believe the officer wanted to arrest her. Of possible help to us, the 10th holds that it is not objectively reasonable to ignore specific facts showing an individual is not dangerous, even though the officer had prior general information indicating the individual might be dangerous. The 10th affirmed the d. ct.'s decision denying summary judgment for the officers and the city, which no one denied apparently had an unwritten policy approving such tasering.
U.S. v. Birch, 2010 WL 4359166 (11/4/10) (Colo) (unpub'd) - The Leon good faith exception applied in the following circumstances. The defendant had been indicted for a murder that was committed 2 years before. The officers got a warrant to search the defendant's apartment for the gun used to murder the victim and shoes matching footprints at the scene. While the warrant affidavit may not have established probable cause to believe the defendant would keep such evidence 2 years after the murder in a place he only lived in for a few months, it was not "entirely unreasonable" for officers to believe that. If the defendant did not promptly get rid of the gun, he would keep it around, and it would not be unusual for someone to keep shoes 2 years, if the murderer did not realize he had left shoeprints behind. And it was not a Franks violation to omit the fact officers surveilling the apartment did not see the defendant with a gun or wearing shoes matching the footprint. The magistrate would have inferred that fact from the lack of such an allegation.
U.S. v. Escobar-Aguirre, 2010 WL 4359171 (11/4/10) (Kan.) (unpub'd) - The defendant argued the d. ct. should disagree with the reentry guidelines as a matter of policy because they were not empirically developed. The d. ct. responded that it did not believe it was its role to categorically find the guidelines should not be followed even if it believed as a matter of policy the guidelines resulted in excessive sentences. Instead, the d. ct. found the defendant's circumstances typical for a reentry defendant and thus a guideline sentence was warranted. The d. ct. did say it recognized it did not have to follow the guidelines. The 10th holds the d. ct. was entitled to defer to the guidelines. The d. ct. did not misapprehend its authority. And the 10th refuses to find the within-guideline-range reentry sentence substantively unreasonable under the 9th's Amezcua-Vasquez case, even though the conviction that triggered the enhancement was 18 years old.
Garcia v. Figueroa, 2010 WL 4367139 (11/5/10) (unpub'd) - It was reasonable for Colorado courts to decide the habeas petitioner was not in custody for Miranda purposes, even though the officer issued a "Notice to Appear," which may have led the petitioner to believe he was going to be arrested, and told the petitioner he didn't need a lawyer.
U.S. v. Abston, 2010 WL 4367124 (11/5/10) (Okl.) (unpub'd) - Counsel was not deficient for failing to obtain a government agreement to move for a 5k1.1 departure because the government has "almost boundless discretion" whether to move for such a departure.
Wilson v. Corcoran, 2010 WL 4394137 (11/8/10) - The S. Ct. continues its practice established last year of per curiam reversals to correct errors. This case goes against the capital habeas petitioner. The 7th Circuit granted relief on the grounds that the Indiana S. Ct. had unreasonably determined the trial court properly imposed the death penalty solely based on statutory aggravating factors. Had the trial court based the sentence on non-statutory aggravating factors, it would have violated state law, but, according to the S. Ct., the 7th Circuit had not found such state law error violated federal law. As we all know, federal habeas is only available for violations of federal law. The S. Ct. remanded the case for the 7th to try again.
10th Cir. cases:
Cavanaugh v. Woods Cross City, 2010 WL 4332289 (11/3/10) (Utah) (Published) - According to the plaintiff's allegations, police responded to a husband's request to find his wife. He told the officers they had a fight during which his wife tried to put him in a closet and then she stormed off with a kitchen knife under the influence of alcohol and pain medications. Eventually an officer saw the wife walking towards her home. He could see she was not holding a knife. As the wife and the officer drew near each other, the wife veered off the walkway towards her front door, cutting across the lawn---walking quickly, but not running. The officer followed her and while he was no more than 6 feet away tasered her without warning, causing her to fall and hit her head on the concrete steps. The taser shot "seized" the wife in violation of the 4th Amendment. The intrusion was quite severe since a taser sends up to 50,000 volts of electricity and causes excruciating pain. The officer was investigating a minor offense--a non-injurious assault---and it was not objectively reasonable to believe the wife posed an immediate threat. The wife was not actively resisting or fleeing arrest. She didn't have any reason to believe the officer wanted to arrest her. Of possible help to us, the 10th holds that it is not objectively reasonable to ignore specific facts showing an individual is not dangerous, even though the officer had prior general information indicating the individual might be dangerous. The 10th affirmed the d. ct.'s decision denying summary judgment for the officers and the city, which no one denied apparently had an unwritten policy approving such tasering.
U.S. v. Birch, 2010 WL 4359166 (11/4/10) (Colo) (unpub'd) - The Leon good faith exception applied in the following circumstances. The defendant had been indicted for a murder that was committed 2 years before. The officers got a warrant to search the defendant's apartment for the gun used to murder the victim and shoes matching footprints at the scene. While the warrant affidavit may not have established probable cause to believe the defendant would keep such evidence 2 years after the murder in a place he only lived in for a few months, it was not "entirely unreasonable" for officers to believe that. If the defendant did not promptly get rid of the gun, he would keep it around, and it would not be unusual for someone to keep shoes 2 years, if the murderer did not realize he had left shoeprints behind. And it was not a Franks violation to omit the fact officers surveilling the apartment did not see the defendant with a gun or wearing shoes matching the footprint. The magistrate would have inferred that fact from the lack of such an allegation.
U.S. v. Escobar-Aguirre, 2010 WL 4359171 (11/4/10) (Kan.) (unpub'd) - The defendant argued the d. ct. should disagree with the reentry guidelines as a matter of policy because they were not empirically developed. The d. ct. responded that it did not believe it was its role to categorically find the guidelines should not be followed even if it believed as a matter of policy the guidelines resulted in excessive sentences. Instead, the d. ct. found the defendant's circumstances typical for a reentry defendant and thus a guideline sentence was warranted. The d. ct. did say it recognized it did not have to follow the guidelines. The 10th holds the d. ct. was entitled to defer to the guidelines. The d. ct. did not misapprehend its authority. And the 10th refuses to find the within-guideline-range reentry sentence substantively unreasonable under the 9th's Amezcua-Vasquez case, even though the conviction that triggered the enhancement was 18 years old.
Garcia v. Figueroa, 2010 WL 4367139 (11/5/10) (unpub'd) - It was reasonable for Colorado courts to decide the habeas petitioner was not in custody for Miranda purposes, even though the officer issued a "Notice to Appear," which may have led the petitioner to believe he was going to be arrested, and told the petitioner he didn't need a lawyer.
U.S. v. Abston, 2010 WL 4367124 (11/5/10) (Okl.) (unpub'd) - Counsel was not deficient for failing to obtain a government agreement to move for a 5k1.1 departure because the government has "almost boundless discretion" whether to move for such a departure.
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