Eleventh Circuit Court of Appeals - Published Opinions

Monday, January 12, 2015

Howard: Defendant merely subject to "dead-docketed" indictment not "in custody" for habeas purposes

In Howard v. Warden, No. 13-12831 (Jan. 9, 2015), the Court held that a person subject, without more, to a Georgia “dead-docketed” indictment – a process by which prosecution is postponed indefinitely but may be reinstated any time at the pleasure of the court – is not “in custody” for habeas corpus purposes. The Court therefore affirmed the dismissal of Howard’s petition. Howard was subject since 1995 to a dead-docketed indictment for burglary. Evidence of this 1995 burglary was introduced at a 1997 trial for an unrelated offense, but it was never used to enhance any sentence. The record showed no relationship between the 1995 indictment and Howard’s current custody. Though recognizing that the caselaw broadly construed the term “in custody” for habeas purposes to include situations where a person is not in actual, physical custody, the Court found that Howard had not shown that he was subject to some type of restraint that was not shared by the general public. Consequently, the Court lacked jurisdiction to consider his habeas claims.

Thursday, January 08, 2015

Reese: No Sixth Amendment Confrontation Right in Supervised Release Revocation Hearing

In U.S. v. Reese, No. 14-10257 (Jan. 5, 2015), the Court held, on plain error review, that the Sixth Amendment right to confrontation was not violated at a hearing to revoke supervised release when the results of a lab test were admitted through the testimony of a police officer instead of the lab technician who performed the test. The Court found that the Sixth Amendment applies only in “criminal prosecutions” which does not include parole revocation hearings – which the Court equated with supervised release revocation. The Court noted that eight other circuits have held that the Sixth Amendment does not apply in hearings for the revocation of supervised release, probation, or parole.

Tuesday, December 23, 2014

Smith: No mens rea element required for prior drug offenses

In U.S. v. Smith, No. 13-15227 (Dec. 22, 2014), the Court rejected the argument that, for prior criminal history sentence enhancement purposes, prior drug convictions should not count as “serious drug offenses” or “controlled substance offenses,” because the prior convictions did not contain the requisite mens rea element. The Court explained that neither the statutory definition of a “serious drug offense,” nor the Guideline definition of a “controlled substance offense” expressed or implied an element of mens rea. The Court declined to presume that mental culpability was a required element, because the definitions were “unambiguous.” The Court distinguished cases that involved different definitions.

Baldwin: Rejecting Sufficiency challenges

In U.S. v. Baldwin, No. 13-12973 (Dec. 17, 2014), the Court affirmed the convictions and sentences of defendants convicted of the unauthorized use of personal identifying information to obtain fraudulent tax refunds. The Court rejected a number of challenges to the sufficiency of the evidence, relying on evidence that the fraudulent returns were submitted from the defendant’s addresses, the fraudulent activity took place within their residences, and one defendant was captured on video making an ATM withdrawal from a card that had been loaded with the proceeds of fraudulent returns. The Court rejected the argument that a constructive amendment occurred when the district court instructed the jury that “scrivener’s errors” in the last digits of the account numbers explained a discrepancy between the number charged in the indictment and the evidence at trial. The Court recognized that it might have been erroneous to allow the jury to convict as long as it found that a defendant “had used any means of identification belonging to any person.” But here the indictment charged the defendant with using names, and those charges were proven at trial. Consequently, the district court did not allow a shift in theory regarding the essential elements of the crime. The Court also rejected challenges to the sentences, finding sufficient evidence that the amount of the loss was reasonably foreseeable. The Court also affirmed the restitution order, finding that a defendant “agreed fully to participate in the broader scheme, rather than to engage in only a small handful of withdrawals.” Finally, the Court rejected the argument that the U.S.S.G. § 2T guidelines, applicable to fraudulent tax returns, instead of the § 2B guidelines, applicable generally to fraud, should have applied. The Court noted that the offense involved more than filing fraudulent tax returns, but stealing identities.

Wednesday, December 17, 2014

Velazco: no evidentiary hearing on counsel's ineffectiveness

In Velazco v. Dep’t of Corrections, No. 13-12525 (Dec. 16, 2014), the Court affirmed the denial of an evidentiary hearing to a habeas petitioner who claimed that counsel was ineffective for failing to investigate two defense witnesses to the murder whose credibility was impeached at trial. The Court found that the Florida courts could have reasonably concluded that Velazco failed to establish prejudice regarding his trial counsel’s failure to investigate, because these two witnesses were, in fact, helpful to the defense, and because of the overwhelming evidence that defeated his defense of self-defense.

Wilson: Counsel not ineffective for failing to present mitigating evidence

In Wilson v. Warden, No. 14-10681 (Dec. 15, 2014), the Court affirmed the denial of habeas relief to a Georgia inmate sentenced to death for a 1996 murder. The Court rejected the argument that trail counsel were ineffective because they failed to investigate his background and present mitigation evidence at sentencing. The Court found that Supreme Court of Georgia could have reasonably concluded that new evidence of Wilson’s background would not have changed the overall mix of evidence at his trial. For example, evidence that Wilson was more of a follower than a leader was contradicted that he had “risen to the rank of ‘God damn chief enforcer’” of a local gang.

Monday, December 08, 2014

Cruanes: Youth Offender Act required automatic set aside of prior conviction

In U.S. v. Cruanes, No. 13-15057 (Dec. 5, 2014), the Court issued a writ of mandamus ordering a district court to set aside a defendant’s conviction as of December 1, 1983. The Court noted that under the (then effective, now-repealed) Federal Youth Corrections Act, the conviction of a youth offender is “automatically set aside” when the offender is discharged by the Parole Commission or by the court. Here, Cruanes had been discharged in 1983, but the district court never issued a certificate setting aside his conviction. The Court noted that the district court erred in ruling only the Parole Commission was authorized to issue this certificate.

Monday, December 01, 2014

Brown: Upward variance supported by depraved online chats

In U.S. v. Brown, No. 13-13670 (Nov. 25, 2014), the Court affirmed a 240-month sentence for possession and receipt of child pornography. The Court recognized that as a result of an upward variance, the 240-month sentence was well above the applicable Guidelines range of 78 to 97 months. But Brown failed to show that the upward variance was unreasonable. The Court noted the district court’s reference to the self-evident danger to society posed by Brown, as demonstrated by his “depraved” online chats and interest in the abduction, sexual molestation, murder, and cannibalization of children.

McIlwain: Prior Commitment to mental institution satisfies 922(g)(4)

In U.S. v. McIlwain, No. 14-10735 (Nov. 25, 2014), the Court held that the defendant, prior to possession of a firearm, had been “committed to a mental institution” within the meaning of 18 U.S.C. § 922(g)(4), and therefore affirmed his conviction under this statute. The Court noted that McIlwain received a formal hearing before the state probate court, was represented by counsel, and the court heard sworn testimony and made substantive findngs of fact that it included in its formal order of commitment. The Court further noted that, just as a convicted felon could not mount a collateral attack on the validity of a prior state conviction under § 922(g)1), McIlwain was not allowed to mount a collateral attack on an underlying state order of commitment under § 922(g)(4).

Thursday, November 20, 2014

Tanzi: Counsel not ineffective in failing to present evidence of XYY abnormality

In Tanzi v. Sec., Fla. Dep’t of Corrections, No. 13-12421 (Nov. 19, 2014), the Court affirmed the denial of habeas relief to a Florida inmate sentenced to death for a murder committed in 2000. The Court rejected the argument that counsel was ineffective in failing, among other things, to present evidence of Tanzi’s XYY abnormality. The Court noted that men with XYY chromosones tend to have diminished socialization skills, but do not automatically become antisocial. The Court also noted a defense mental expert’s testimony that knowledge that Tanzi had an extra & chromosome would not have changed any of the opinions he expressed during the penalty phase. Tanzi therefore failed to satisfy the prejudice prong of Strickland’s ineffective assistance of counsel standard.