Unpublished Decisions

U.S. v. Richardson, 2015 WL 5672654 (9/28/15) (Kan.) (unpub'd) - A cautionary tale. Seeking a downward variance in violation of the plea agreement brings calamity to Mr. Richardson. The 10th holds the government did not breach the plea agreement when it asked for a bunch of enhancements the plea agreement precluded, because the district court found Mr. Richardson's downward-variance motion breached the agreement. Since the government didn't breach the agreement, the appeal waiver in the agreement prevents Mr. Richardson from appealing. In other words, because of the breach, the government can ignore everything in the plea agreement, but Mr. Richardson still must follow the agreement's provisions. Something seems wrong with this picture.

U.S. v. Ordaz, 2015 WL 5692179 (11/29/15) (Wyo.) (unpub'd) - The 10th holds defense counsel did not act deficiently when counsel did not seek independent testing of a substance the government claimed to contain meth and a cutting agent. Mr. Ordaz asked counsel to get the testing because he said the substance was solely a cutting agent. It was a reasonable strategic decision, the 10th says, to rely on counsel's "vigorous" attack on the government's tests at trial, rather than the uncertain results of the new test. According to the 10th, counsel could not have engaged in that attack, if the independent tests came back positive for meth.

Reid v. U.S., 2015 WL 5672624 (9/28/15) (Okl.) (unpub'd) - A procedural, equitable-tolling victory for a prisoner in a Tort Claims Act suit. BOP publications stated he had to file his administrative claim on Standard Form 95. This wasn't true. He could have used alternative written notice of his claim. The BOP refused to answer his requests for Form 95. As a result, he filed his claim notice to BOP after the 2-year deadline. His access to legal materials through computer research that said he didn't have to use Form 95 did not eliminate Mr. Reid's equitable-tolling argument. He "understandably relied on official BOP documents." So the 10th remands for a possible evidentiary hearing to consider finding equitable tolling. The 10th leaves it up to the district court to consider how Mr. Reid's inaction for the first 19 months factored into the equitable-tolling analysis. The 10th does observe: "litigants often file late in a limitation period."

Carillo v. Zupan, 2015 WL 5672944 (9/28/15) (Col.) (unpub'd) - The 10th rules against a petitioner in a § 2254 habeas case. Mr. Carillo obtained an amended sentence when his restitution was reduced. Within a year of that amendment he filed a § 2254 challenging his conviction. The 10th holds, pursuant to Prendergast v. Clements, 699 F.3d 1182 (10th Cir. 2012), that the amended sentence did not restart the one-year statute of limitations when his challenges were just to his conviction, which was not changed by the new judgment. The 10th acknowledges the 11th has held a corrected sentence restarts the limitations period, even when the petitioner is challenging the conviction, not the corrected sentence.