10 Cir. Cases:
Lopez v. Trani, -- F.3d --, 2010 WL 4923891 (10th Cir. 12/6/10) (Colo.) - Equitable tolling on the basis of a sufficiently supported claim of actual innocence, which permits a petitioner to get past an untimely filed habeas petition, does not require the petitioner to demonstrate that he has diligently pursued the claim of actual innocence beforehand. While Mr. Lopez overcomes this first hurdle, it is to no avail. The COA denies a certificate of appealability and dismisses the appeal because reasonable jurists would not find it debatable whether his petition presents a valid claim of the denial of a constitutional right.
U.S. v. Frownfelter, 2010 WL 4868012 (12/1/10) (Published) - A defense victory. You probably remember this case from when the 10th reversed an order detaining the defendant pending appeal. The indictment charged the defendant with 11 counts of theft of government funds. Each count alleged a misdemeanor amount of less than $1,000 stolen. The indictment states that in the aggregate the defendant took a felony amount---more than $1,000. The defendant pleaded guilty to one count. Everyone---the government, defense counsel and district court---assumed the defendant had pleaded guilty to a felony. he received a felony sentence of one year and a day. But on appeal the government admitted the defendant had pleaded guilty to a misdemeanor. The 10th "declined to rescue the government from its blunder." It rejected the government's argument that the plea agreement was void due to frustration of purpose and mutual mistake. The felony/misdemeanor distinction was not such a critical part of the agreement, the government assumed the risk the defendant would rely on the plain text of the statute to claim he was convicted of a misdemeanor and the defendant is not seeking to rewrite the agreement for a one-sided benefit. So the d. ct. had to change the conviction to a misdemeanor and resentence the defendant as a misdemeanant
U.S. v. Becker, 2010 WL 4868004 (12/1/10) (Published) - The categorical approach does not apply to whether a child porn defendant was previously convicted of an offense "relating to agg sex abuse, sex abuse or abusive sexual conduct involving a minor" under § 2252(b), which triggers 10 or 15 year mandatory minimums. The phrase "relating to" indicates the categorical approach is inapplicable. This means the sentencing court may look beyond the "mere" elements of the prior conviction to decide if § 2252(b) applies. On the other hand, the 10th implies at least that the court may only look at documents Taylor and Shepard said would be appropriate to look at. In this case, the defendant's indecent-solicitation-of- a-minor conviction satisfied the § 2252(b) requirements, even though the prior was an inchoate offense and even though the "victim" was a police officer posing as a child under 17. The 10th made clear it was not deciding whether the sexual abuse of an adult could qualify as a § 2252(b) offense.
Gee v. Pacheco, 2010 WL 4909644 (10/26/10) (Published) - This case was originally decided on Oct. 26, 2010, remanding for the d. ct. to allow the pro se prisoner to amend his complaint. The ACLU intervened seeking a rehearing because the 10th seemed to be placing a higher pleading burden on a prisoner than other people to meet the Iqbal "plausibility" requirement. The 10th had stated the prisoner's complaint had to explain why what the prison did to the prisoner did not serve a legitimate penological purpose. The 10th had also said "prisoners will rarely suffer from information asymmetry" because they will have learned through the grievance process the prison's justification for its conduct. The 10th reissued its decision with, as far as I can tell, a very minor addition. The 10th kept in every word the ACLU complained about and then added that, if the grievance process does not provide an explanation for the prison's conduct, the claim that prison conduct lacked justification may become plausible. In any event, the 10th explained, the d. ct. will ordinarily dismiss a pro se prisoner's complaint without prejudice and carefully explain to the prisoner what the complaint's deficiencies are so that the prisoner can correct them.
Doe v. Shurtleff, 2010 WL 4888036 (10/26/10) (Published) - This case was also decided on Oct. 26, 2010. It allowed to stand all the sex offender registration requirements Utah had imposed. Upon rehearing the 10th "corrected" the decision, without saying how it corrected the decision. The bottom line is the same. As far as I can tell the 10th filled out a distinction between mandatory disclosure in public of a speaker's identity and the requirement that a speaker provide information to the government---in this case, internet identity information---that could later be used to trace speech back to its source, the latter being more subject to government regulation. The 10th also added that Utah did not permit unrestricted disclosure of personal information to the general public, but only sharing among law enforcement agencies.
U.S. v. Espinoza, 2010 WL 4912312 (12/3/10) (unpub'd) - A true rarity: a granting of a prisoner's petition for rehearing. The pro se prisoner successfully pointed out the d. ct. had not addressed his Brady claim, even though he had persistently pointed out below that the magistrate and the d. ct. had not addressed the claim.
S. Ct. News:
Williams v. Hobbs, 2010 WL 1685380 (12/6/10) - Justice Sotomayor joined by Justice Ginsburg dissents from a cert denial. In a § 2254 capital case, the 8th Circuit held the state could raise on appeal an objection to the holding of an evidentiary hearing in federal court , even if it had not objected below. After the hearing, the d. ct. granted the habeas petition because counsel did a pathetic job presenting mitigating evidence in the penalty phase and the testimony at the federal hearing showed the petitioner had been "subject to every category of traumatic experience generally described as childhood trauma." But the 8th Circuit held the evidentiary hearing should not have been held because the petitioner had a chance to present evidence at the state habeas hearing and that evidence did not entitle the petitioner to federal habeas relief. Justice Sotomayor felt the circuit court had not considered the interests of justice, as it was supposed to do. She thought the state was hoping to use the federal hearing to its advantage. She concluded: "the interests of justice are poorly served by a rule that allows a State to object to an evidentiary hearing only after the hearing has been completed and the State has lost."
Lopez v. Trani, -- F.3d --, 2010 WL 4923891 (10th Cir. 12/6/10) (Colo.) - Equitable tolling on the basis of a sufficiently supported claim of actual innocence, which permits a petitioner to get past an untimely filed habeas petition, does not require the petitioner to demonstrate that he has diligently pursued the claim of actual innocence beforehand. While Mr. Lopez overcomes this first hurdle, it is to no avail. The COA denies a certificate of appealability and dismisses the appeal because reasonable jurists would not find it debatable whether his petition presents a valid claim of the denial of a constitutional right.
U.S. v. Frownfelter, 2010 WL 4868012 (12/1/10) (Published) - A defense victory. You probably remember this case from when the 10th reversed an order detaining the defendant pending appeal. The indictment charged the defendant with 11 counts of theft of government funds. Each count alleged a misdemeanor amount of less than $1,000 stolen. The indictment states that in the aggregate the defendant took a felony amount---more than $1,000. The defendant pleaded guilty to one count. Everyone---the government, defense counsel and district court---assumed the defendant had pleaded guilty to a felony. he received a felony sentence of one year and a day. But on appeal the government admitted the defendant had pleaded guilty to a misdemeanor. The 10th "declined to rescue the government from its blunder." It rejected the government's argument that the plea agreement was void due to frustration of purpose and mutual mistake. The felony/misdemeanor distinction was not such a critical part of the agreement, the government assumed the risk the defendant would rely on the plain text of the statute to claim he was convicted of a misdemeanor and the defendant is not seeking to rewrite the agreement for a one-sided benefit. So the d. ct. had to change the conviction to a misdemeanor and resentence the defendant as a misdemeanant
U.S. v. Becker, 2010 WL 4868004 (12/1/10) (Published) - The categorical approach does not apply to whether a child porn defendant was previously convicted of an offense "relating to agg sex abuse, sex abuse or abusive sexual conduct involving a minor" under § 2252(b), which triggers 10 or 15 year mandatory minimums. The phrase "relating to" indicates the categorical approach is inapplicable. This means the sentencing court may look beyond the "mere" elements of the prior conviction to decide if § 2252(b) applies. On the other hand, the 10th implies at least that the court may only look at documents Taylor and Shepard said would be appropriate to look at. In this case, the defendant's indecent-solicitation-of- a-minor conviction satisfied the § 2252(b) requirements, even though the prior was an inchoate offense and even though the "victim" was a police officer posing as a child under 17. The 10th made clear it was not deciding whether the sexual abuse of an adult could qualify as a § 2252(b) offense.
Gee v. Pacheco, 2010 WL 4909644 (10/26/10) (Published) - This case was originally decided on Oct. 26, 2010, remanding for the d. ct. to allow the pro se prisoner to amend his complaint. The ACLU intervened seeking a rehearing because the 10th seemed to be placing a higher pleading burden on a prisoner than other people to meet the Iqbal "plausibility" requirement. The 10th had stated the prisoner's complaint had to explain why what the prison did to the prisoner did not serve a legitimate penological purpose. The 10th had also said "prisoners will rarely suffer from information asymmetry" because they will have learned through the grievance process the prison's justification for its conduct. The 10th reissued its decision with, as far as I can tell, a very minor addition. The 10th kept in every word the ACLU complained about and then added that, if the grievance process does not provide an explanation for the prison's conduct, the claim that prison conduct lacked justification may become plausible. In any event, the 10th explained, the d. ct. will ordinarily dismiss a pro se prisoner's complaint without prejudice and carefully explain to the prisoner what the complaint's deficiencies are so that the prisoner can correct them.
Doe v. Shurtleff, 2010 WL 4888036 (10/26/10) (Published) - This case was also decided on Oct. 26, 2010. It allowed to stand all the sex offender registration requirements Utah had imposed. Upon rehearing the 10th "corrected" the decision, without saying how it corrected the decision. The bottom line is the same. As far as I can tell the 10th filled out a distinction between mandatory disclosure in public of a speaker's identity and the requirement that a speaker provide information to the government---in this case, internet identity information---that could later be used to trace speech back to its source, the latter being more subject to government regulation. The 10th also added that Utah did not permit unrestricted disclosure of personal information to the general public, but only sharing among law enforcement agencies.
U.S. v. Espinoza, 2010 WL 4912312 (12/3/10) (unpub'd) - A true rarity: a granting of a prisoner's petition for rehearing. The pro se prisoner successfully pointed out the d. ct. had not addressed his Brady claim, even though he had persistently pointed out below that the magistrate and the d. ct. had not addressed the claim.
S. Ct. News:
Williams v. Hobbs, 2010 WL 1685380 (12/6/10) - Justice Sotomayor joined by Justice Ginsburg dissents from a cert denial. In a § 2254 capital case, the 8th Circuit held the state could raise on appeal an objection to the holding of an evidentiary hearing in federal court , even if it had not objected below. After the hearing, the d. ct. granted the habeas petition because counsel did a pathetic job presenting mitigating evidence in the penalty phase and the testimony at the federal hearing showed the petitioner had been "subject to every category of traumatic experience generally described as childhood trauma." But the 8th Circuit held the evidentiary hearing should not have been held because the petitioner had a chance to present evidence at the state habeas hearing and that evidence did not entitle the petitioner to federal habeas relief. Justice Sotomayor felt the circuit court had not considered the interests of justice, as it was supposed to do. She thought the state was hoping to use the federal hearing to its advantage. She concluded: "the interests of justice are poorly served by a rule that allows a State to object to an evidentiary hearing only after the hearing has been completed and the State has lost."
posted by Anonymous at 9:42 AM
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