Monday, August 27, 2018

Grant v. Royal, 886 F.3d 874 (3/30/18) (Okl.) (Published) - The 10th affirms an Oklahoma death sentence with Judge Moritz dissenting. The majority opinion is 165 pages long. (1) The 10th holds Mr. Grant only exhausted his substantive, not his procedural, incompetence issue in state court, rendering the procedural issue defaulted. The state's addressing the procedural issue in its appellate brief didn't meet Mr. Grant's burden to prove fair presentation of the issue. Substantive incompetence addresses whether a defendant was incompetent. Procedural incompetence addresses whether the court should have had a bona fide doubt about the defendant's competence, which would trigger a requirement to inquire about the matter. Mr. Grant didn't raise the substantive incompetence issue in his § 2254 petition. So he's out of luck on the incompetence issue.
(2) The 10th rejects Mr. Grant's ineffective assistance claims.
(3) The 10th finds the OCCA reasonably handled a common Oklahoma mitigating-circumstance instruction/prosecutorial misconduct issue.
(4) The 10th rejects Mr. Grant's claim that the OCCA unconstitutionally devalued the use of comparative juror analysis in assessing a Batson claim.
(5) It was reasonable, the 10th rules, for the OCCA to find no error in the trial court exclusion of certain reports that concerned topics addressed by live witnesses. The OCCA could have reasonably concluded the Constitution doesn't require that "every scrap or scintilla of mitigating evidence" be admitted.
(6) The 10th holds there are no grounds for relief for cumulative error. But the 10th does affirm that cumulative-error analysis reflects clearly established S. Ct. law. And the 10th affords de novo review because the OCCA didn't address the merits of Mr. Grant's cumulative-error claim. Still, the assumed ineffective assistance of counsel deficiencies don't add up "synergistically" to enough prejudice to justify relief.
Judge Moritz dissents on the prosecutorial misconduct issue. She votes to overturn the death sentence. She believes the OCCA misunderstood Mr. Grant's argument and so de novo review, rather than application of the stringent AEDPA standard of review, applies to the issue. She disagrees that Mr. Grant forfeited the de novo argument, noting AEDPA not only seeks to protect federalism and comity, it also "seeks to ensure that defendants aren't convicted or sentenced in violation of federal law."

U.S. v. Cash, 727 F. App'x 542 (3/29/18) (Okl.) (unpub'd) - The 10th refuses to apply Mathis and Johnson II to a § 2255 sentence correction. Mr. Cash complained that, due to some confusion about the various counts of conviction, the district court by mistake sentenced him as though he were subject to the ACCA. The government agreed the ACCA didn't apply. As a result, the district court rearranged the sentences so that Mr. Cash's ultimate sentence was reduced from 35 years to 30 years. The court didn't hold a hearing. Mr. Cash contended he was entitled to a resentencing in which the latest case law would apply. The 10th says that, if a defendant discovers a sentencing error and the Rule 35 period has already elapsed, the defendant may file a § 2255 motion to address "obvious sentencing errors." The 10th doesn't explain how the defendant can avoid procedurally defaulting any claim---a defense apparently the government didn't raise here. The 10th declares what Mr. Cash got was a sentence correction of a technical mistake, not a resentencing. So, the 10th holds, he isn't entitled to application of the good new case law.

U.S. v. Tinoco, 2018 WL 1517129 (3/28/18) (N.M.) (unpub'd) - In a case perhaps relevant to clients who have a medical marijuana permit, the 10th affirms a supervised release condition prohibiting Mr. Tinoco from using marijuana, despite his presumably sincere religious belief that required marijuana ingestion. The government has a compelling interest in the prohibition, the 10th rules, because: Congress requires the condition for all defendants that they refrain from using controlled substances to prevent drug abuse among convicts; and Congress has found marijuana has a detrimental effect on the health and general welfare of the American people.

Crosby v. Fox, 715 F. App'x 870 (3/22/18) (Col.) (unpub'd) - The 10th rejects a prisoner's § 2241 claim that his calling a guard a "white ass country cracker" was entitled to First Amendment protection. Backtalk to a guard isn't constitutionally protected, the 10th opines. The prison hearing officer who revoked Mr. Crosby's good time for the incident considered Mr. Crosby's benign definition of "cracker," but was unpersuaded by it, the 10th decides.