Unpublished Decisions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.

Utah Can Constitutionally Require Sex Offenders to Register Internet Information

Doe v. Shurtleff, ___ F.3d ___ , 2010 WL 4188248 (10th Cir. 2010)
Utah statute requiring all sex offenders living in the state to register their internet identifiers and address does not violate First or Fourth Amendments or Ex Post Facto clause. (Though the law was more expansive, the legislature amended it after the suit was filed, and included some restrictions on how the information could be used. On this basis the district court granted summary judgment to the state.)

1) Although it impinges upon the plaintiff’s anonymous speech, because the law is content neutral (it is not directed at certain opinions or speech, for example) it is subject to intermediate scrutiny. There is conceded substantial government interest in protecting the public from sex crimes. The Court says that the law has sufficient safeguards against any speech being exposed to the public since it limits use of the information to crime investigation.

2) Citing to Perrine, the Court found that because the Plaintiff already has given his identifying information to a third party internet provider, there is no Fourth Amendment implication to his having to provide identifying information under the registration law.

3) No Ex Post Facto issue because the law is civil, as previously decided by a Court panel for a version that did not include the requirement to register internet identifiers.

Partial Victory for Pro Se Prisoner Plaintiff Alleging Civil Rights Claims

Gee v. Pacheco, ___ F.3d ___ , 2010 WL 4196034 (10th Cir. 2010) (WY)
Another partial victory for a pro se prisoner filing a Sec. 1983 civil rights claim alleging 1st, 8th, and 14th Amendment claims. The COA reversed the dismissal with prejudice of some though not all of the claims (some were time-barred; some did not state a claim).

1). The COA imposes a “plausibility” standard for dismissal for failure to state a claim–plaintiffs’ claims must be plausible and cannot merely make allegations. Although there could be problems generally with asymmetrical access to information by a Plaintiff resulting in dismissal before discovery, that would not be the case in a prisoner suit–presumably in going through the required administrative action first, the prisoner would have learned that info.

2). District court improperly reviewed documents defendants attached to their 12(b)(6) motion–court should only look at complaint and anything that complaint incorporated. In reviewing more than complaint, the district court should have converted it into a summary judgment motion.

Reentry Defendant Received a 13+ Month Sentence For Prior Drug Offense With Prob. Violation Sentence Added

United States v. Rendon-Alamo, ___ F.3d ___ , 2010 WL xxx (10th Cir. 2010) (NM) (No. 10-2089)
According to the guidelines' Commentary, the calculation of whether a reentry defendant received more than 13 months imprisonment for a prior felony drug offense, which qualifies a reentry defendant for the 16 point bump up under the USSG § 2L1.2, includes any aggregate sentence of the original sentence added to a probation violation sentence. In this case defendant’s probation violation sentence of 6 months was added to his original sentence of 9 months, for a 15-month sentence.

Prisoner's Civil Rights Action Alleging False Imprisonment Reinstated

Cohen v. Longshore, ___ F.3d ___ , 2010 WL xxx (10th Cir. 2010) (CO) (No. 09-1563)
The district court abused its discretion in dismissing plaintiff’s civil rights complaint for false imprisonment and denying extension of time to amend when the court failed to consider the plaintiff’s reasons for delay, which were all outside of Plaintiff’s control, including serious medical conditions. It abused its discretion in dismissing for the pro se Plaintiff’s failure to attach the exact same exhibit to each copy of the amended complaint he filed. This appeared to be a inadvertent failure and not a disregard of any district court order. Because the dismissal was with prejudice (the default position since the court did not specify), the district court failed to consider the multiple factors required before dismissal with prejudice.

Finally, the district court’s third reason for denial of amendment and dismissal–that any amendment would be futile-is reviewed de novo. It was not patently obvious that the Plaintiff would lose on his additional claims. Following the more liberal circuits’ interpretation of a series of Supreme Court decisions in a generally unsettled area of the law, the Tenth holds that a prisoner no longer in custody who cannot avail himself of habeas corpus to address issues of the unconstitutionality of his conviction, can use § 1983 to bring a civil rights action on the same claim (false imprisonment in this case). District court erred in determining that Plaintiff had no claim regarding the institution’s interference with his access to the courts in his legal filings. Plaintiff’s claim had merit that a prison mail clerk’s refusal to send out his legal mail caused his objections to the magistrate’s proposed findings on another civil matter not to be received by the court, in turn causing a waiver of those objections. Dismissal reversed.

Drug Dog's Romping Through Car Not a Constitutional Violation

U.S. v. Lujan, No. 09-2193 & 09-2194 (10/12/10) (N.M.) (unpub'd) - It was not a 4th Amendment violation when a drug dog leaped into a car through an open front passenger door and then into the back seat and then back out towards the open door and then alerted to the floor board. The officer did not improperly facilitate the dog's entry. The defendant had left the door open after looking for the registration documents in the glove compartment. It didn't matter [and apparently it would never matter in any case] that the officer knew the dog had done a similar thing once before. And because the 10th has to review the record in the light most favorable to the prevailing party, the 10th would not hold it against the officer that he didn't try to call the dog back from the car. The record did not disclose how long the dog was in the car and the judge simply found: "Doobie entered the car and alerted at the passenger seat."

Petitioner's Guilty Plea Was Involuntary Where Based on False Promise of 3-Year Side Deal

Tovar Mendoza v. Hatch, 2010 WL 3965209 (10/12/10) (Published) - A wonderful victory in a habeas case. The 10th held that the petitioner's guilty plea was rendered involuntary by a promise by his attorney that he would get a 3-year sentence because the attorney had worked out a side deal with the judge. The plea agreement called for a sentence up to 30 years and the petitioner got 25 years. The 10th did not apply the stringent AEDPA standards of review because, in denying the state habeas claim, the state trial court judge found the plea to be voluntary solely based on a review of the plea colloquy and not based on any of the evidence outside the record that was developed at the federal evidentiary hearing and that resulted in factual findings by the magistrate judge adopted by the d. ct.. The 10th distinguished the attorney's promise from the bad sentence guesses of attorneys in other cases, which did not warrant relief. The 10th acknowledged the formidable barrier of the petitioner's sworn statements at the plea hearing that no promises had been made to him, but found the barrier had been overcome because the plea agreement was never translated for the petitioner, and the lawyer had told the petitioner there was a side deal and stood beside the petitioner at the plea hearing and told him how to answer the judge's questions. The 10th disagreed with Judge Black's ruling that the petitioner had forfeited any chance for relief because he had perjured himself in front of the state trial judge. The 10th said that such a ruling would effectively overrule Blackledge v. Allison, 431 U.S. 63 (1977), in which the Court held sworn plea hearing statements could be overcome. Magistrate Judge Garza deserves a hats off for making the necessary factual findings that were adopted by the d. ct. and recommending granting the petition.

Circuit Snippets

It is constitutional to require persons accused of federal felonies to give a DNA sample as a condition of granting bail, the Ninth Circuit held. The Court found it was reasonable because the sample was only demanded after a judge had determined that there is probable cause to support the charges. The government's interests outweighed any privacy interests the person might have in his or her DNA. The physical intrusion is "minimal." Concurring, Judge Lucero reasoned that, because the DNA collection was pursuant to a federal statute and program, the intrusions were not random or arbitrary. Judge Schroeder dissented, and would have continued to restrict the collection of DNA to those actually convicted of crimes. US v. Pool, No. 09-10303, 2010 WL 3554049 (9th Cir. 9/14/10)

Suspicionless strip searches of all arrestees before they are placed in the jail population was upheld by the Third Circut. The Court stressed deference to the jail officials' security concerns. Judge Pollack dissented, on the grounds that there was no evidence that arrestees actually presented a smuggling risk. Florence v. Board of Chosen Freeholders of the County of Burlington, 2010 WL 3633178, No. 09-3603 (3dCir. 9/21/10)

Following the Supreme Court's decisions in Caballes, Muehler, and, most recently, Arizona v. Johnson, 129 S.Ct. 781, the Connecticut Supreme Court held that an officer who has stopped a motorist for a traffic violation can ask about anything the officer wants to, "so long as those inquiries do not measurably extend the duration of the stop." State v. Jenkins, No. SC 18077 (Conn. S.Ct. 9/7/10)

Hooray for Powell's Books of Portland, Oregon, the plaintiff in Powell's Books v. Kroger, 2010 WL 3619949, No. 09-35153 (9th Cir. 9/20/10), in which the Ninth Circuit struck down Oregon laws that makes it a misdemeanor to intentionally furnish a child under the age of 13 or intentionally permit such a child to view "sexually explicit material," and that make it a felony to furnish a minor with a visual representation or explicit verbal description or narrative account of "sexual conduct" for the purpose of "arousing or satisfying the sexual desires of the person or the minor" or "inducing the minor to engage in sexual conduct." The statutes also define "sexually explicit material" and "sexual conduct." The Ninth Circuit agreed the statutes were unconstitutionally overbroad and violated the First Amendment by including a number of works that were not obscene to children or minors.

The Second Circuit concluded that it reviews a district court's determination as to whether a party has established a prima facie Batson violation for abuse of discretion, and further held that the defendant, just like the prosecution, is prohibited from exercising peremptory challenges on the basis of gender. US v. Martinez, 2010 WL 3606710, No. 08-5071-cr (2d Cir. 9/17/10)

Under the Mandatory Victims Restitution Act, the government can garnish a defendant's retirement benefits to pay a restitution order. However, the Consumer Credit Protection Act limits the garnishment to 25% of the defendant's monthly retirement benefits. US v. DeCay, 2010 WL 3621084, No. 09-30218 (5th Cir. 9/20/10)

An indigent defendant who seeks an expert on drug-sniffing dogs to help with a challenge to the admission of evidence must articulate facts demonstrating a "legitimate controversy" concerning the dog's smelling ability, certification, training or the circumstances of the alert to get funding. It would be just too burdensome to give an indigent defendant funds for a dog-sniff expert in every case in which there was a dog alert that was the basis for probable cause, because it happens so often. US v. Howard, No. 08-6143 (6th Cir. 9/14/10)

Great insufficient evidence decision from the Sixth Circuit, though. The evidence that the defendant obtained the van and probably acted as a lookout while others loaded marijuana into the van was insufficient to sustain the defendant's conviction for conspiracy to traffic in drugs and aiding and abetting. US v. Sliwo, 2010 WL 3488991 (6th Cir. 2010)

It was plain error, though harmless of course, for the court to allow a DEA agent to give "expert testimony" regarding the typical characteristics of a drug courier and then link them to the defendant. The defendant trucker drove a tractor-trailer into an immigration checkpoint; methamphetamine was found among the grapefruit in the trailer. Without objection, a DEA agent testified about how drugs are smuggled into the US from Mexico, and was also allowed to testify that the defendant was guilty for such reasons as the log book was falsified. You may be surprised to learn that it is highly suspicious to have no criminal history and to be hauling a legitimate load of produce: "Agent Crawford's testimony that drug couriers generally have no criminal history is classic profile testimony: it describes a characteristic used by law enforcement officers to identify an individual who might be a drug courier" and "Agent Crawford suggested that Gonzalez-Rodriguez was a drug courier because he was transporting a legitimate load of grapefruits." US v. Gonzales-Rodriguez, 2010 WL 3636986 (5th Cir. Sept. 21, 2010)

A defendant convicted of mortgage fraud received a new trial because evidence that she received cocaine from a broker who operated the scheme was improperly admitted as trial as proof of her motive in going along with the fraud. Whatever minimal value the evidence had was outweighed by its unfairly prejudicial effect, and the government's motive theory was undermined by the fact that defendant did the same fraudulent conduct for another broker who didn't provide drugs. US v. Corsmeier, 617 F.3d 417 (6th Cir. 2010)

Relief Granted to 2255 Petitioner Who Did Not Receive Effective Assistance of Counsel in Sentencing Process

US v. Washington, 2010 WL 3786159 (Kan), 9/30/10 - Denial of 2255 petition reversed. Defendant was represented in this crack distribution case by attorney who knew nothing about how federal sentencing works. Defendant was convicted at trial of three sales involving a total of 61.98 grams. Attorney let client go to presentence interview alone and gave him no advice whatsoever about the purpose of the interview or what subjects to avoid. Client admitted to other sales and got tagged with an additional 2.5 kg as part of relevant conduct. This was ineffective assistance, and client suffered prejudice because, without the 2.5 kg, he would have been eligible for 3582(c) sentence reduction based on the Sentencing Commission's lowering of the maximum base offense level. Although US v. Gordon, 4 F3d 1567 (19th Cir. 1993), held that the presentence interview itself is not a critical stage of the proceeding, hence no Sixth Amendment right to counsel, and that failure to accurately predict the sentence is not ineffective assistance, the sentencing process itself is a critical stage and counsel had an affirmative duty to advise client about what it entails and how to handle it.

Judge Tacha dissented. She thought Gordon was controlling, and that it made no sense to treat advice about the presentence interview as separate from the interview itself. The district court agreed, very reluctantly, with this position, and therefore felt constrained to deny the petition.

Unpublished Decisions

U.S. v. Williams, 2010 WL 3733883 (9/27/10) (Colo) (unpub'd) - It was okay for an officer to identify the defendant as the person in the "less-than-perfect" video destroying a trail sign in a national forest. The officer had seen her 6 times over the course of 3 years, including a couple of heated meetings discussing her opposition to people traipsing over property that she had mineral rights in.

U.S. v. Chism, 2010 WL 3735784 (9/24/10) (Kan.) (unpub'd) - D. Ct. refused to vary due to unfair crack-powder disparity but says it would be "more than pleased" to apply any change the Sentencing Commission might institute in the future, essentially leaving it up to the Commission to do the weighing of § 3553(a) factors re: the crack/powder disparity. The 10th found that to be perfectly okay.