Unpublished Decisions
U.S. v. Cunningham, 2015 WL 7444847 (11/24/15) (Col.) (unpub'd) - Heien v. North Carolina, 135 S. Ct. 530 (2014), rears its ugly head here. The officer reasonably interpreted the traffic code to prohibit what Mr. Cunningham's driver, Ms. Ulloa [Mr. Cunningham was the passenger] did, justifying the stop. Officers were laying in wait for a reason to stop the car for reasons the 10th leaves undiscussed. Ms. Ulloa left a motel parking lot and turned left onto a public road without signaling for the turn. Colorado law says: "No person shall turn a vehicle to enter a private road or otherwise turn a vehicle from a direct course or move right or left upon a roadway . . . only after giving an appropriate signal." Note the law doesn't explicitly refer to turning from a private road to a public one. The 10th expresses relief that, thanks to Heien, it doesn't have to figure out whether Ms. Ulloa violated the law. If it's hard to figure out what the law means, as in this case, then the officer acted reasonably in finding a violation. An ambiguous law with no authoritative court construction means a stop is okay. Here the 10th points to a number of factors showing ambiguity. First, pre-Heien, the district court gave the law the same interpretation as the officer. Second, a Colorado Court of Appeals' decision where the driver turned from a public roadway to a private lot indicated what matters is whether a person's conduct took place on a public street. Here Ms.Ulloa's turning took place on a public road. Third, the state district courts were in conflict over the interpretation of the law. Fourth, the 10th thinks an officer could reasonably think "otherwise turning a vehicle from a direct course" encompassed Ms. Ulloa's conduct of turning from the private lot. The officer could believe the law didn't require doing so on a public roadway. And anyway, Ms. Ulloa did turn her car "from a direct course" onto the public roadway because she crossed the westbound lane of the public road to get to the eastbound lane.
U.S. v. Yanez-Rodriguez, 2015 WL 7597425 (11/27/15) (Col.) (unpub'd) - The 10th indicates admission of 2 prior removals in addition to the most recent removal might have violated Evidence Rule 403 in a reentry trial. The 10th says the 404(b) evidence was probative that Mr. Yanez-Rodriguez was an alien without permission to be in the U.S. and that his recent reentry was intentional, both elements of the offense. But it finds the potential for unfair prejudice was "great." The evidence showed his propensity to commit the charged offense, enhanced by the government's closing argument that he was a "habitual trespasser." Plus Mr. Yanez-Rodriguez did not contest his alienage or his intent [apparently he defended on the ground that he may have had permission to enter]. So, the 10th says, there was little justification for admitting the evidence. But the 10th holds that any error was harmless, given the overwhelming evidence of Mr. Yanez-Rodriguez's guilt. The 10th then makes an interesting suggestion: the court should hold off admitting the evidence under Evidence Rule 611 until after both parties have presented their cases in chief to see what issues were really contested and how overwhelming the government's case is. The 10th also takes a dig at the government, commenting:"But for the government's aggressiveness, the Rule 404(b) matter may never have arisen." And most importantly, this is the first 10th case I recall that cites to a country singer, Vern Goslin, who apparently at one time sang: "This ain't [Yanez-Rodriguez's] first rodeo."
U.S. v. Etenyi. 2015 WL 7422604 (11/23/15) (Kan.) (unpub'd) - The 10th remands for findings of fact and statement of reasons for a detention order. The written order said the detention was for the reasons stated on the record at the detention hearing, but at the hearing the district court did not provide sufficient explanation and factual findings to support the detention. So no meaningful appellate review was possible.
Duncan v. Hickenlooper, 2015 WL 7567465 (11/25/15) (Col.) (unpub'd) - The 10th excuses Mr. Duncan for not filing timely objections to the magistrate judge's report and recommendations. He didn't receive any legal mail while hospitalized. He met the objective prong for a § 1983 suit for a cruel & unusual punishment lawsuit concerning uranium and trihalomethanes in the prison's drinking water from Sterling, Colorado. He suffered liver, kidney, thyroid, immune-system , nervous system, spine and lung damage accompanied by "extreme, daily abdominal pain." He met the subjective prong with respect to the wardens because he submitted documents indicating Sterling notified the wardens in 2008 of elevated uranium levels in the city water and in 2012 about elevated trihalomethane levels and the wardens did nothing to abate the risk until 2013. This shows deliberate indifference to the prisoners' health.
Rowley v. Morant, 2015 WL 7567485 (11/25/15) (N.M.) (unpub'd) - The 10th affirms denial of § 1983 relief to one of the door-to-door salesmen who was unjustly accused of killing a couple in Albuquerque and kept in jail for 16 months. The 10th holds Mr. Rowley's involuntary-statement claim is precluded by the state district court's ruling that his statements were voluntary. The 10th finds no abuse of discretion in the district court's denial of a motion to amend to include a claim that interrogating officers disregarded Mr. Rowley's request for an attorney. The district court rejected Mr Rowley's contention he filed the motion so late because he didn't learn until later that the tape of his interrogation [which didn't show an attorney request], had been tampered with. The 10th says the court reasonably found Mr. Rowley did not come up with a real expert to prove the tampering. Importantly for appellate types, the 10th refuses to consider Mr. Rowley's attempt in his reply brief to distinguish a case upon which the district court relied. Mr. Rowley had to challenge the district court's reasoning and so distinguish the case in the opening brief. A suggestion in a footnote in the opening brief in a parenthetical to an out-of-circuit case didn't cut it.
U.S. v. Owens, 2015 WL 7597450 (11/27/15) (Okl.) (unpub'd) - Mr. Owens ended up with a 27-year sentence for child porn production after entering a plea agreement which apparently did him no good, but did contain an appeal waiver. Later Mr. Owens filed a § 2255 asserting his counsel was ineffective for not advising him he could plead guilty without a plea agreement that waived his appeal right. The 10th finds no prejudice because ultimately Mr. Owens withdrew the notice of appeal he had initially filed after his attorney advised him his appeal would not succeed. But one of the reasons his attorney gave for why his appeal wouldn't succeed was that he had waived his right to appeal!? More substantively, the 10th assures us that a district court does not err by rejecting habeas claims in footnotes. The 10th proceeds to deny Mr. Owens' evidentiary-hearing claim in a footnote.
Tiedemann v. Church of Jesus Christ of Latter Day Saints, 2015 WL 7367261 (11/25/15) (Ut.) (unpub'd) - The 10th rejects Mr. Tiedemann's claim that the church and its leader violated his constitutional rights by endangering his soul.
U.S. v. Yanez-Rodriguez, 2015 WL 7597425 (11/27/15) (Col.) (unpub'd) - The 10th indicates admission of 2 prior removals in addition to the most recent removal might have violated Evidence Rule 403 in a reentry trial. The 10th says the 404(b) evidence was probative that Mr. Yanez-Rodriguez was an alien without permission to be in the U.S. and that his recent reentry was intentional, both elements of the offense. But it finds the potential for unfair prejudice was "great." The evidence showed his propensity to commit the charged offense, enhanced by the government's closing argument that he was a "habitual trespasser." Plus Mr. Yanez-Rodriguez did not contest his alienage or his intent [apparently he defended on the ground that he may have had permission to enter]. So, the 10th says, there was little justification for admitting the evidence. But the 10th holds that any error was harmless, given the overwhelming evidence of Mr. Yanez-Rodriguez's guilt. The 10th then makes an interesting suggestion: the court should hold off admitting the evidence under Evidence Rule 611 until after both parties have presented their cases in chief to see what issues were really contested and how overwhelming the government's case is. The 10th also takes a dig at the government, commenting:"But for the government's aggressiveness, the Rule 404(b) matter may never have arisen." And most importantly, this is the first 10th case I recall that cites to a country singer, Vern Goslin, who apparently at one time sang: "This ain't [Yanez-Rodriguez's] first rodeo."
U.S. v. Etenyi. 2015 WL 7422604 (11/23/15) (Kan.) (unpub'd) - The 10th remands for findings of fact and statement of reasons for a detention order. The written order said the detention was for the reasons stated on the record at the detention hearing, but at the hearing the district court did not provide sufficient explanation and factual findings to support the detention. So no meaningful appellate review was possible.
Duncan v. Hickenlooper, 2015 WL 7567465 (11/25/15) (Col.) (unpub'd) - The 10th excuses Mr. Duncan for not filing timely objections to the magistrate judge's report and recommendations. He didn't receive any legal mail while hospitalized. He met the objective prong for a § 1983 suit for a cruel & unusual punishment lawsuit concerning uranium and trihalomethanes in the prison's drinking water from Sterling, Colorado. He suffered liver, kidney, thyroid, immune-system , nervous system, spine and lung damage accompanied by "extreme, daily abdominal pain." He met the subjective prong with respect to the wardens because he submitted documents indicating Sterling notified the wardens in 2008 of elevated uranium levels in the city water and in 2012 about elevated trihalomethane levels and the wardens did nothing to abate the risk until 2013. This shows deliberate indifference to the prisoners' health.
Rowley v. Morant, 2015 WL 7567485 (11/25/15) (N.M.) (unpub'd) - The 10th affirms denial of § 1983 relief to one of the door-to-door salesmen who was unjustly accused of killing a couple in Albuquerque and kept in jail for 16 months. The 10th holds Mr. Rowley's involuntary-statement claim is precluded by the state district court's ruling that his statements were voluntary. The 10th finds no abuse of discretion in the district court's denial of a motion to amend to include a claim that interrogating officers disregarded Mr. Rowley's request for an attorney. The district court rejected Mr Rowley's contention he filed the motion so late because he didn't learn until later that the tape of his interrogation [which didn't show an attorney request], had been tampered with. The 10th says the court reasonably found Mr. Rowley did not come up with a real expert to prove the tampering. Importantly for appellate types, the 10th refuses to consider Mr. Rowley's attempt in his reply brief to distinguish a case upon which the district court relied. Mr. Rowley had to challenge the district court's reasoning and so distinguish the case in the opening brief. A suggestion in a footnote in the opening brief in a parenthetical to an out-of-circuit case didn't cut it.
U.S. v. Owens, 2015 WL 7597450 (11/27/15) (Okl.) (unpub'd) - Mr. Owens ended up with a 27-year sentence for child porn production after entering a plea agreement which apparently did him no good, but did contain an appeal waiver. Later Mr. Owens filed a § 2255 asserting his counsel was ineffective for not advising him he could plead guilty without a plea agreement that waived his appeal right. The 10th finds no prejudice because ultimately Mr. Owens withdrew the notice of appeal he had initially filed after his attorney advised him his appeal would not succeed. But one of the reasons his attorney gave for why his appeal wouldn't succeed was that he had waived his right to appeal!? More substantively, the 10th assures us that a district court does not err by rejecting habeas claims in footnotes. The 10th proceeds to deny Mr. Owens' evidentiary-hearing claim in a footnote.
Tiedemann v. Church of Jesus Christ of Latter Day Saints, 2015 WL 7367261 (11/25/15) (Ut.) (unpub'd) - The 10th rejects Mr. Tiedemann's claim that the church and its leader violated his constitutional rights by endangering his soul.
posted by Anonymous at 9:45 AM
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