In re Weathersby, 2013 WL 1960578 (5/14/13) (Kan.) (Published) - The § 2255 movant did not need authorization from the 10th to file a successive petition because his petition was not successive. The basis for his new claim---the state's vacatur of six of his convictions that put him in a high criminal history category at his original sentencing---arose after the denial of his first § 2255 motion. So now the question before the d. ct. on remand will be whether the movant acted diligently in getting his convictions vacated and if the vacatur will make a difference in his sentence.

Roosevelt-Hennix v. Prickett, 2013 WL 2097419 (5/16/13) (Col.) (unpub'd) - The 10th affirms the denial of a qualified-immunity summary judgment motion where an officer tased the plaintiff while she was sitting in the back seat of a police car with her hands cuffed behind her back. According to the plaintiff, when in the police car with the windows up and the doors locked and not knowing what the police did with her daughter, the claustrophobic plaintiff banged her head against the window to try and get the officer's attention. The officer opened the car door. The plaintiff asked him to leave the door open so she wouldn't go into full panic. The officer refused and told her to calm down. He ordered her to place her feet outside the car so that he could "hobble" her. She told him that, because of a bad back, she couldn't physically do that. Instead of helping her move her feet, the officer put a taser against her thigh and activated it in drive stun mode. Soon she was off to the hospital for back surgery due to paralysis of her lower extremities. There was no incontrovertible evidence in the record that countered the plaintiff's version. Her version clearly established the use of excessive force. The 10th admonished the defense litigants they should have considered their duty of candor to the court before appealing. Ouch.

U.S. v. Simpson, 2013 WL 1960601 (5/14/13) (Ut.) (unpub'd) - The government did not breach the plea agreement when it promised to recommend the defendant receive credit for time already served, but the BOP did not give him credit. The government did recommend the credit at sentencing. The fact that the court had no power to grant credit and so the government's recommendation was worthless didn't faze the 10th.

Parkhurst v. Wilson, 2013 WL 1984384 (5/15/13) (Wyo.) (unpub'd) - The 10th reaches a conclusion directly contrary to a decision the S.Ct. makes a few days later in Trevino v. Thaler, a case Carol reported about on Tuesday. In fact, the 10th says the position the S. Ct. ultimately took wasn't even arguably correct. The 10th ruled Martinez v. Ryan did not apply because Wyoming did not absolutely prohibit a defendant from raising ineffective assistance of trial counsel claims on direct appeal, it just was in reality impossible for the petitioner to do so. In Trevino, the S. Ct. later pointed out how ridiculous that distinction is. So, in the 10th's case, the petitioner could not raise as an excuse for the procedural bar the incompetence of his counsel in state collateral proceedings. The petitioner had several other procedural problems with his petition. So Trevino will likely not save him.

U.S. v. Simons, 2013 WL 2130264 (5/17/13) (Kan.) (unpub'd) - The 10th trashes a favorite brief-writing approach: "Simons' bitter whining is not an adequate substitute for disciplined and thoughtful argument."