Sam Gross and Rob Warden have launched a new project, a National Registry of Exonerations.

Sam reports: "It's a joint project of the University of Michigan Law School and the Center on Wrongful Convictions at the Northwestern School of Law. We've put together an on line database of 891 exonerations - and counting - at
exonerationregistry.org.

Plus we released a report on 873 of them (what we had on March 1) - attached - plus more than 1170 additional "group exonerations" that are discussed in the report but are not in the database. These are exonerations that followed the discovery of police misconduct scandals like the Rampart scandal in LA or the Tuilia cases in Texas in which police officers systematically framed innocent defendants, usually on drug and gun charges. We found 13 such scandals around the country - and there are certainly others we haven't found."

He continues by requesting:

1. Everyone should please be in touch, srgross@umich.edu, to tell us about cases we've missed. It's already happened.

2. Spread the work on the existence of the resource in an effort to (a) rouse up more reports of cases and (b) publicize the problem.

U.S. v. Moya, 2012 WL 1259008 (4/16/12) (N.M.) (Published) - The 10th takes its first crack at interpreting the recent S. Ct. plea-bargaining cases. It acknowledged that the more general prejudice test was now whether the end result of the criminal process would have been more favorable to the defendant, absent counsel's deficiencies. But the 10th notes the Hill v. Lockhart standard is still applicable when the defendant complains that his guilty plea was involuntary due to IA. He still must show he would have gone to trial absent counsel's incompetence. In this case, the defendant contended his attorney should have negotiated a conditional plea where he could appeal the denial of his suppression motion and seek a downward departure. Under the new Frye test, the 10th finds the defendant couldn't show prejudice because he didn't allege any facts showing counsel could have negotiated a better deal or that he would have prevailed on appeal or gotten a downward departure.

U.S. v. Gavilanas-Medrano, 2012 WL 1372129 (4/20/12) (Ut.) (unpub'd) - There was sufficient evidence to support the d. ct.'s determination that the drug dog "alerted." It stopped its fluid movement along the car, stood up on its hind legs and sniffed "more intently." And, anyway, there was probable cause to search because of a reliable tip that the car was possibly carrying narcotics, the dog's change in behavior, the length of time it took for the car to pull over, the driver's nervousness and the passenger's furtive movements.

U.S. v. Cabrera-Zetina, 2012 WL 1327820 (4/18/12) (Okl.) (unpub'd) - A case that has already been reported on. I was struck by a footnote, which offered a rare moment of candor and insight. In a re-entry substantive unreasonableness case, the court punctuates the holding by noting "We have little doubt as to why the defendant did not request oral argument." This is exhibit A as to why we should always request oral argument absent extraordinary circumstances.

U.S. v. Hanns, 2012 WL 1354079 (4/19/12) (Col.) (unpub'd) - A Colorado offense that prohibits a non-medical person administering a drug without the person's consent is an intentional offense that poses a substantial risk of injury to another and so is a crime of violence under § 4B12(a)(2). The 10th has held in U.S. v. Rodriguez-Enriquez, 518 F.3d 1191 (10th Cir. 2008) that the same offense is not a crime of violence under § 2L1.2, but that was because it does not involve the use of physical force. § 4B1.2 includes the additional "serious potential risk of physical injury" component.

U.S. v. Mach. 2012 WL 1302582 (4/17/12) (Col.) (unpub'd) - A troubling application of the 4th prong of the plain error test. The defendant argued that his conviction for violating a Colorado statute prohibiting the possession of a short shotgun was not a conviction for a crime of violence as defined under § 4B1.2, comment. 1. He contended the offense did not involve a firearm as described in § 5845(a) because the Colorado statute criminalized short shotguns even if they were not modified and, according to the defendant, § 5845(a) requires a modification. The 10th refuses to address the legal question presented. Instead, it finds that the enhancement did not result in a miscarriage of justice because an unmodified short shotgun is as "especially dangerous" as one that was modified. That the defendant's sentence may have been 6 offense levels longer because of the legal error makes no impression on the 10th.

U.S. v. Lucas, 2012 WL 1302587 (4/17/12) (Okl.) (unpub'd) - It didn't matter that the woman who let the officers into the defendant's house told the officers she didn't live there. Once the officers were in and before they saw anything incriminating, the defendant, who did have actual authority to consent, consented to their presence and their search of the place.

U.S. v. Granados, 2012 WL 1302584 (4/17/12) (Col.) (unpub'd) - A preservation warning. The defendant's argument that she was entitled to a downward variance because it wasn't foreseeable that her co-conspirator would use the money she gave him for drugs did not preserve her appellate argument that the d. ct. mistakenly counted those drugs to calculate her offense level. And, anyway, it was foreseeable, even though she denied knowledge on that score in the plea agreement.

Rezaq v. Federal Bureau of Prisons, 2012 WL 1372151 (4/20/12) (Col.) (unpub'd) - The plaintiffs' complaint about being transferred to the Administrative Maximum Prison ("ADX") in Florence, Colo., is not moot, even though they are no longer incarcerated there. The fact that they were transferred may explain their current less-than-ideal conditions of confinement and they may be entitled to additional due process. But there is no due process violation here because they did not have a liberty interest in avoiding the transfer. For such an interest to be triggered the prisoner must suffer atypical and significant hardship. To determine whether such hardship is suffered the prisoners' conditions must be compared to those ordinarily experienced by inmates with records and sentences similar to the prisoners. Here the prisoners have been convicted of terrorism offenses and non-disciplinary administrative segregation is the sort of confinement inmates should reasonably anticipate receiving at some point. Penological interests may be considered in deciding if the requisite hardship has been incurred. Here, while the ADX is "undeniably harsh" [23 hours a day in a cell], there were some fabulous benefits: they had control of the cell lights; they got outdoor recreation, albeit all alone in a fenced-in area slightly larger than their cells; they had regular contact with staff and occasional opportunities to communicate with other inmates; and they got five no-contact social visits and 2 15-minute calls per month. Because things weren't so bad and there were regular reviews of their placement [but none that resulted in release from ADX for many years] the prisoners had no liberty interest.

US v. Cabrera-Zetina, 2012 WL 1327820, No. 11-6237 (10th Cir. 4/18/2012) (unpublished): reentry defendant's above-guideline sentence of 84 months was substantively reasonable where he had been deported five times and had 14 criminal convictions in the US, including a felony drug offense and convictions for assault with a dangerous weapon.

US v. Ortiz, 2012 WL 1327818, No. 11-4110 (10th Cir. 4/18/12) (unpublished): Defendant, facing a mandatory minimum sentence of 10 years for PWID meth, reached a plea agreement in which the government agreed to recommend application of the safety valve statute. The friendly probation officer determined that defendant was a leader/organizer and therefore ineligible for safety valve, and the government filed a non-objection to that report, and did not recommend safety valve. The district court agreed and imposed the 10 year sentence. The COA affirms, finding that the sentencing court did not clearly err and refusing to reweigh the evidence or the trial court's rejection of the defendant's testimony indicating he was not a leader. The COA is clearly somewhat disturbed by the government's change of position, and explicitly observes that it is not considering whether the government's actions might justify a remand because the defendant specifically stated he wasn't making that argument.

U.S. v. Johnson, 2012 WL 1183972 (4/10/12) (Col.) (unpub'd) - The 10th suggests that some weapons possessions could be crimes of violence under the Career Offender guidelines definitional provision, § 4B1.2, but not under the statutory Armed Career Criminal Act, 18 USC §924(e). In this case, the offense of possessing a knife in a prison was a crime of violence under § 4B1.2

U.S. v. Garcia-Roman, 2012 WL 1130646 (4/5/12) (Kan.) (unpub'd) - In a rare moment of candor, the 10th allows some reality to filter in. The 10th dismisses a defendant's appeal because it was untimely, despite the defendant's claim that counsel, who is currently on disability inactive status, failed to file a timely appeal, despite his request that counsel do so. In a footnote, the 10th acknowledges that judicial resources might have been saved if the government had not insisted on relying on the untimeliness of the appeal. It notes the defendant will now file a § 2255 petition and the case will eventually come back to the 10th where such defendants' appeals are "often unmeritorious."

Prisoner Held in Harsh Administrative Confinement Is Entitled to Meaningful Periodic Review

Toevs v. Reid, 2012 WL 1085802 (4/2/12) (Col.) (Published) - Following the prison defendants' petition for rehearing, the same result as in Toevs v. Reid, 646 F.3d 752 (10th Cir. 2011): the 10th [Ebel, Matheson and McKay] holds that a prisoner in administrative confinement under conditions that constitute an atypical and significant hardship for about seven years, with the sole justification of encouraging the prisoner to modify his behavior, is entitled under the Due Process Clause to periodic meaningful reviews; the prisoner did not receive meaningful review, but because the law was not clearly established that due process required such reviews, the defendants are immune.

The 10th explains in this version of the decision that it could just go to the immunity part of the decision, but it feels it's important to help develop constitutional precedent and promote law-abiding behavior by telling prisons what due process requires. The 10th takes back its discussion about why the prisoner's conditions constituted atypical and significant hardship so as to trigger due process protection. Instead, it rules the government's failure to contest that notion in its opening brief waived the issue. Helpfully, it says the waiver rule should apply equally to the government as it does to prisoners. The prison violated due process because it either gave no explanation for why the prisoner remained at a particular level or it provided no review at all. At the very least, the prison should say circumstances have not changed, if that is what happened, rather than "relying on a meaningless, repetitive, and rote response." Meaningful review was required even where the prison changed the name of the prisoner's custody to "close custody" rather than "administrative segregation." The conditions were the same under either name.

Divided Court Affirms Large Upward Variance For Supervised Release Violation Eventhough Sentence was "Plain Error"

U.S. v. Collins, 2012 WL 1130640 (4/5/12) (N.M.) (unpub'd) - The majority assumes the d. ct. committed plain error in extending the defendant's prison term [41 months where the top of the range was 10 months] for a supervised release violation, in order to allow the defendant time to avail himself of sex offender treatment. But it finds the defendant did not show the d. ct. would have imposed a different sentence absent the error. The d. ct.'s "formulaic" reference to all the § 3553(a) factors, including the need for correctional treatment, did not matter. The d. ct. relied on the defendant's repeated failures to abide by his conditions and his danger to society.

Judge Holloway, importantly, explains why U.S. v. Tsosie, 376 F.3d 1210 (10th Cir. 2004), which held a d. ct. could lengthen a prison term to promote rehabilitation upon supervised release revocation, is no longer good law in light of Tapia. The logic of Tapia, in particular the point that district courts have no power to order rehabilitation in prison, undermined Tsosie. And, Judge Holloway determined, the d. ct. did rely on rehabilitation when it imposed the sentence, especially because the government sought the exact sentence imposed based on the need for the defendant to undergo sex offender treatment in prison. The 4th prong of the plain-error test was satisfied because allowing the sentence to stand suggests "courts may usurp Congress's authority to lay down the foundations of the sentencing process." Judge Holloway concluded he "respectfully but emphatically dissented."

Elliott v. Martinez, -- F.3d --, 2012 WL 1153488 (4/9/12) - The New Mexico statutory requirement that an individual be informed that he or she is a target of a grand jury investigation constitutes a procedural limitation which does not create a substantive liberty interest protected by the Fourteenth Amendment Due Process Clause. Because the plaintiffs did not have a constitutional right to compliance with the grand jury procedures, they were not entitled to relief under § 1983.

U.S. v. Cano, 2012 WL 1010330 (3/27/12) (Wyo.) (unpub'd) - The 10th denies appellate counsel's request to withdraw under Anders because the government conceded the d. ct. applied the wrong guideline range based on an un-noticed misreading of the guideline sentencing table [offense level 21 and criminal history II is 41-51 months, not 51-63]. But the 10th rejects the defendant's other claims he raised pro se, even though an attorney never argued on behalf of those issues.

U.S. v. Viera, 2012 WL 1021923 (3/28/12) (Kan.) (unpub'd) - A plea agreement waiver of the right to pursue § 2255 relief waives the right to an IA claim that counsel failed to pursue an appeal, despite the defendant's request that counsel do so. Thus, the 10th's decision in U.S. v. Garrett, 402 F.3d 1262 (10th Cir. 2005), finding it to be IA to fail to appeal after the defendant requests an appeal, despite an appeal waiver, means nothing if there is also a § 2255 waiver.

Schubler v. Holder, 2012 WL 1021957 (3/28/12) (unpub'd) - The reference in the petty offense exception to inadmissibility, 8 U.S.C. § 1182(a)(2)(A)(ii)(II), to "the maximum penalty possible for the crime" means the statutory maximum, not the top of the applicable guideline range. So, the exception did not apply to the alien's conviction for wire fraud, which has more than a one year stat max.

U.S. v. Espinoza-Aguilar, 2012 WL 1059739 (3/30/12) (Wyo.) (unpub'd) - Defense counsel had no conflict of interest after it was discovered counsel had given the defendant information the court had ordered counsel not to give him. [The co-defendant complained the defendant was threatening him after the defendant received the information]. Counsel became hysterical when the government threatened to hold counsel in contempt. But there was no evidence counsel's representation changed after the discovery, says the 10th.

U.S. v. House, No. 11-4102 (3/23/12) (Ut.) (unpub'd) - A reversal of a suppression denial. Although it established the defendant was armed, the government did not meet its burden to prove the defendant was dangerous so as to justify a frisk for weapons. An officer investigates a woman's complaint that she heard noises coming from her basement. The officer finds no evidence of a forced entry and nothing was missing. As the officer walked towards his car, he noticed the defendant walking towards the woman's house. As another patrol car approached the area, the defendant did an immediate turnaround and walked in the opposite direction he had been walking. From several feet behind, the investigating officer asks the defendant if he can ask a few questions. At first, the defendant continues walking and talking on his cell phone. The officer asks a second time and this time the defendant ended his call and turned around. The defendant kept his left hand in his coat pocket. There was a bulge in the pocket that made it seem like there was something in there in addition to a hand. The defendant denied he had any weapons, but he had a folded, folding knife protruding from his right pocket. Up to this time, the encounter was consensual, the 10th rules.
Then the officer frisks the defendant and finds a gun the defendant wasn't supposed to possess. The 10th assumes, without deciding, that an officer can frisk even if there's no reasonable suspicion ("RS") criminal activity was afoot. Importantly, the 10th says this issue is not resolved in the 10th; the statements about the legality of a patdown in U.S. v. Manjarrez, 348 F.3d 881 (10th Cir. 2003) were just dicta. The officer had reasonable suspicion the defendant was armed because of the knife and the bulge. But there was no indication the defendant was presently dangerous. Nothing suggested the defendant's involvement in a crime [he was walking toward the woman's house, not away from it]. Unlike another case, the defendant did not refuse to remove his hand from his pocket. He was fully compliant. A folded knife is not a danger to an officer 6-8 feet away. Many law-abiding folks would not consider a folded knife a weapon when asked by an officer if they had a weapon. The majority distinguishes this case from a situation where the defendant is detained. Then the defendant might have been dangerous. The government's position affords too little protection for people's Fourth Amendment and Second Amendment [perhaps the key here] rights. Just because you're armed doesn't make you dangerous. Judge Baldock in dissent worries that the decision exposes officers to unreasonable dangers. First, Judge Baldock finds no RS of a crime is needed to frisk someone. Second, he sees officers under the majority's holding consensually approaching only harmless people and avoiding dangerous ones. Third, an armed person is usually dangerous except maybe if the person is a retired police officer or a cooperative citizen licensed to carry a gun. And the court shouldn't second-guess the officer's split-second judgment that the defendant lied when he denied having a weapon, where he obviously had a knife. And knives are dangerous even from 6 feet and guns certainly are. And the officer shouldn't have to ask a person to remove his hand from his pocket before frisking.

U.S. v. Hunt, 2012 WL 936202 (3/21/12) (Okl.) (Published) - The 10th answers the question left open in U.S. v. Hernandez, 655 F.3d 1193 (10th Cir. 2011): a d. ct. may impose a term of imprisonment up to the max established by § 3583(e)(3) each time the defendant violates. There is no aggregation of prior revocation prison terms. The language in § 3583(e)(3) allowing a court to require the defendant to serve in prison "all or part of the term of supervised release authorized by statute for the offense that resulted in such term of supervised release" does not require aggregation by its plain language. The 10th follows the reasoning of U.S. v. Hampton, 633 F.3d 334 (5th Cir. 2011). § 3583(h) prevents indefinite revocation sentencing by calling for aggregating of prison terms in determining how long a supervised release term the d. ct. can impose. Of course, if the defendant receives a life-time term, there could be a problem.

U.S. v. Irvin, 2012 WL 974887 (3/22/12) (Kan.) (Published) - Doubtless you're thinking: "wasn't this case already reported on August 31, 2011?" The answer is: "yes it was, but the 10th granted a rehearing petition.' Not to help the defendant in any way, but to clarify the law on adopted business records. Originally the panel ruled the 10th had already held in U.S. v. Carranco, 551 F.3d 1197 (10th Cir. 1977), that a record prepared by one company and adopted into the records of the witness's company satisfies the business records hearsay exception. But now the 10th holds the government is wrong to suggest that's what Carranco stands for. The Carranco court merely assumed there was such a thing as an adoptive business record exception. But any error in admitting the evidence was harmless error,