Unpublished Decisions
Green v. Addison, 2012 WL 5077178 (10/19/12) (Okl.) (unpub’d) - A rare 10th grant of an evidentiary hearing in a § 2254 case. The petitioner acted diligently in state court to get an evidentiary hearing. He asked for a hearing and submitted a transcript of an interview of an alleged victim, J.C., who said the prosecutor threatened to pursue juvenile charges against her if she did not testify against the petitioner the way the prosecutor wanted. J.C. admitted she had lied at trial about the defendant raping her and that another alleged victim claimed rape because the petitioner would not go out with her and the prosecutor threatened her as well. The state court’s decision was not entitled to any deference because it used the wrong standard. The petitioner alleged the state knowingly presented perjured testimony, while the state court reviewed the claim as though the defendant asserted he had found new evidence proving his innocence. Because of all this, the petitioner’s claim is reviewed under pre-AEDPA de novo standards. The alleged victim’s testimony and affidavits of prosecutors do not necessarily contravene the alleged victim’s later allegations. The state court’s conclusion that: “J.C. did not recant her original claims” was clearly wrong. The petitioner’s allegations were sufficient to justify relief, if true. J.C.’s interview called into question the petitioner’s convictions and sentence. Even if he had consensual sex with J.C., which is still first-degree rape, the testimony that he forced her to have sex would have affected the sentence the jury imposed.
Allen v. Workman, 2012 WL 4947821 (10/18/12) Okl.) (unpub’d) - The 10th gives the go-ahead to yet another Oklahoma execution. It was not unreasonable for the state courts to find sufficient due process where the warden’s decision not to initiate proceedings to determine the competency of the petitioner to be executed was reviewed by state trial and appellate courts. Previously the warden had initiated such a procedure and a jury had found the petitioner competent. The petitioner submitted a new evaluation indicating he had become incompetent due to a seizure disorder. The petitioner was not incompetent for execution because the warden promised not to execute the petitioner during a seizure or while in a post-seizure state of confusion.
U.S. v Friedman , 2012 WL 4902867 (10/17/12) (Ut.) (unpub’d) - The most interesting part of this case is that Mr. Friedman originally received a below guidelines sentence of 57 months based on the judge’s “feeling.” The government appealed, the judge was reversed, and at resentencing the same judge, independent of the 10th circuit reversal, (or so he said) sentenced Mr. Friedman to the guideline minimum of 151 months as a career offender. With a record of the district court considering all current case law and sentencing factors at the resentencing, the 10th upheld this sentence. The case does provide a review of important sentencing factors which will be considered and evaluated on appeal. And an updated PSR on resentencing is not required.
U.S. v Lopez , 2012 WL 4902998 (10/17/12) (N.M.) (unpub’d) - Another case involving the credibility of the infamous Sgt. Ramos of the NMSP. While the appeal was in process, counsel received disciplinary and credibility records of Sgt. Ramos. Appointed appellate counsel withdrew the appeal in favor of filing a 2255 motion to pursue the Giglio issue. Judge Armijo denied the 2255 motion on two grounds. First, the defendant did not make a showing of cause for failing to raise Giglio on appeal. [It’s not clear how one can do that on appeal when the material was not first before the district court and if one could do so, then ineffective assistance of counsel would excuse the failure]. Second, the new material wouldn’t have made a difference. The new information suggested Ramos “may appear to be somewhat overzealous in his traffic stops and inconsistent in his court testimony in prior cases.” But he was truthful here in light of the video of the stop. The 10th dismisses the appeal because the defendant never addressed the procedural-bar issue.
Musau v. Carlson, 2012 WL 4903251 (10/17/12) (Kan.) (unpub’d) - The alien might be eligible for habeas relief under the Convention Against Transnational Organized Crime where, after he was ordered removed, he learned of threats from people in his home country of Kenya because he helped the prosecution of fellow Kenyans. The 10th remanded to d. ct. to decide whether the alien could have petitioned to a circuit court for review, instead of seeking habeas relief in a d. ct. Judge O’Brien vigorously dissented, contending the alien should have, and could have, petitioned a circuit court.
U.S. v Phillips, 2012 WL 5077180 (10/19/12) (unpub’d) - Mr. Phillips received a sentence for firearms possession, completed his time and went on supervised release and promptly violated, twice. With the last violation the court sentenced Mr. Phillips to the maximum of 24 months on each of the 2 counts to be served consecutively without any further supervised release. This case reminds lawyers to be diligent in objecting at the time of sentencing. At the final sentencing no objections to the sentence were made. Since the defendant had a history of recidivism and consecutive sentences are allowed, the sentence was not substantively unreasonable. Phillips also argued the district court did not sufficiently explain its reasons pursuant to 3553(a) to justify the sentence imposed. Since Phillips did not object to the adequacy of the reasons given at sentencing, the appellate review must be for plain error. If there was error there was no reasonable probability that, but for the error, the sentence would have been different. Without objection or argument at the sentencing there is no way Phillips’ appellate claim could begin to satisfy this plain error standard.
U.S. v Lichfield, 2012 WL 490300 (10/17/12) (unpub’d) - This case is a routine denial of a certificate of appealability alleging various types of ineffective assistance of counsel in the plea bargaining process. It merits consideration only because under Missouri v Fry,132 S. Ct 1399 (2012) and Lafler v Cooper, 132 S. Ct. 1376 (2012) these types of cases can now be viewed in a new light. New challenges can be attempted using the law of these new cases while employing different approaches on appeal.
Allen v. Workman, 2012 WL 4947821 (10/18/12) Okl.) (unpub’d) - The 10th gives the go-ahead to yet another Oklahoma execution. It was not unreasonable for the state courts to find sufficient due process where the warden’s decision not to initiate proceedings to determine the competency of the petitioner to be executed was reviewed by state trial and appellate courts. Previously the warden had initiated such a procedure and a jury had found the petitioner competent. The petitioner submitted a new evaluation indicating he had become incompetent due to a seizure disorder. The petitioner was not incompetent for execution because the warden promised not to execute the petitioner during a seizure or while in a post-seizure state of confusion.
U.S. v Friedman , 2012 WL 4902867 (10/17/12) (Ut.) (unpub’d) - The most interesting part of this case is that Mr. Friedman originally received a below guidelines sentence of 57 months based on the judge’s “feeling.” The government appealed, the judge was reversed, and at resentencing the same judge, independent of the 10th circuit reversal, (or so he said) sentenced Mr. Friedman to the guideline minimum of 151 months as a career offender. With a record of the district court considering all current case law and sentencing factors at the resentencing, the 10th upheld this sentence. The case does provide a review of important sentencing factors which will be considered and evaluated on appeal. And an updated PSR on resentencing is not required.
U.S. v Lopez , 2012 WL 4902998 (10/17/12) (N.M.) (unpub’d) - Another case involving the credibility of the infamous Sgt. Ramos of the NMSP. While the appeal was in process, counsel received disciplinary and credibility records of Sgt. Ramos. Appointed appellate counsel withdrew the appeal in favor of filing a 2255 motion to pursue the Giglio issue. Judge Armijo denied the 2255 motion on two grounds. First, the defendant did not make a showing of cause for failing to raise Giglio on appeal. [It’s not clear how one can do that on appeal when the material was not first before the district court and if one could do so, then ineffective assistance of counsel would excuse the failure]. Second, the new material wouldn’t have made a difference. The new information suggested Ramos “may appear to be somewhat overzealous in his traffic stops and inconsistent in his court testimony in prior cases.” But he was truthful here in light of the video of the stop. The 10th dismisses the appeal because the defendant never addressed the procedural-bar issue.
Musau v. Carlson, 2012 WL 4903251 (10/17/12) (Kan.) (unpub’d) - The alien might be eligible for habeas relief under the Convention Against Transnational Organized Crime where, after he was ordered removed, he learned of threats from people in his home country of Kenya because he helped the prosecution of fellow Kenyans. The 10th remanded to d. ct. to decide whether the alien could have petitioned to a circuit court for review, instead of seeking habeas relief in a d. ct. Judge O’Brien vigorously dissented, contending the alien should have, and could have, petitioned a circuit court.
U.S. v Phillips, 2012 WL 5077180 (10/19/12) (unpub’d) - Mr. Phillips received a sentence for firearms possession, completed his time and went on supervised release and promptly violated, twice. With the last violation the court sentenced Mr. Phillips to the maximum of 24 months on each of the 2 counts to be served consecutively without any further supervised release. This case reminds lawyers to be diligent in objecting at the time of sentencing. At the final sentencing no objections to the sentence were made. Since the defendant had a history of recidivism and consecutive sentences are allowed, the sentence was not substantively unreasonable. Phillips also argued the district court did not sufficiently explain its reasons pursuant to 3553(a) to justify the sentence imposed. Since Phillips did not object to the adequacy of the reasons given at sentencing, the appellate review must be for plain error. If there was error there was no reasonable probability that, but for the error, the sentence would have been different. Without objection or argument at the sentencing there is no way Phillips’ appellate claim could begin to satisfy this plain error standard.
U.S. v Lichfield, 2012 WL 490300 (10/17/12) (unpub’d) - This case is a routine denial of a certificate of appealability alleging various types of ineffective assistance of counsel in the plea bargaining process. It merits consideration only because under Missouri v Fry,132 S. Ct 1399 (2012) and Lafler v Cooper, 132 S. Ct. 1376 (2012) these types of cases can now be viewed in a new light. New challenges can be attempted using the law of these new cases while employing different approaches on appeal.
posted by Anonymous at 10:13 AM
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