Eleventh Circuit Court of Appeals - Published Opinions

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.

Monday, November 17, 2014

Spencer: Misapplication of Career Offender Guideline is not cognizable under 2255.

In Spencer v. U.S., No. 10-10686 (Nov. 14, 2014), the Court (en banc) (5-4) held that a defendant cannot attack a misapplication of the career offender Guideline in a collateral attack on his sentence under 28 U.S.C. § 2255. The Court first noted that it had erroneously granted Spencer a certificate of appealability, because such a certificate may only issue if the applicant has made a “substantial showing of the denial of a constitutional right.” Here, there was no underlying constitutional issue. Nevertheless, the Court declined to vacate the certificate “at this late hour,” because the matter had been litigated before a panel and was now before the en banc Court. The Court warned that it would not be so lenient in the future. Turning to the merits, the Court noted that under § 2255, a district court lacks the authority to correct a claimed sentencing error unless the claimed error constitutes a “fundamental defect” which inherently results in a “complete miscarriage of justice.” The Court held that the Guideline error Spencer alleged did not qualify as a complete miscarriage of justice. The Court pointed out that Spencer’s sentence was below the statutory maximum sentence for his offense. The sentence was therefore “lawful.” Because the Guidelines are advisory, the district court could reimpose the same sentence on remand, and the error therefore cannot be a complete miscarriage of justice. The Court noted that even if Spencer’s sentence on direct appeal would be viewed as “substantively unreasonable” – the incorrect application of the career offender Guideline nearly doubled his Guideline range, from a range of 70-87 months to a range of 151-180 months – this would not qualify as a “complete miscarriage of justice” because the sentence was still below the statutory maximum. The Court declined to equate “legal innocence” of a prior qualifying conviction under the career offender Guideline with “factual innocence,” because Spencer still committed a “serious” prior crime: felony child abuse (at the age of 18, Spencer had sex with a 14-year old). The sentencing judge could still consider the seriousness of this conviction at resentencing. The Court distinguished cases where a prior conviction had been vacated, finding that this vacatur constitutes a "new fact" with which the petitioner can challenge his sentence. Spencer merely presented an argument of "legal innocence." (Martin, J,, dissenting noted that the ruling will increase costs in the criminal justice system to the extent that the U.S. taxpayer will have to spend dozens of thousands of dollars incarcerating Spencer for time he should not be in prison). (Jordan, J., dissenting, argued that the mistaken career offender designation was a complete miscarriage of justice, noting that the 81-month increase in Spencer's sentence is roughly the time needed to complete both college and law school).

Thursday, November 13, 2014

Lucas: No requirement for affirmative instruction that jury unanimity is not required for mitigating factor

In Lucas v. Warden, No. 13-11909 (Nov. 12, 2014), the Court affirmed the denial of habeas relief to a Georgia inmate sentenced to death for three 1998 murders. The Court rejected Lucas’ ineffective assistance of counsel claim, finding that counsel did not fail to develop expert testimony that Lucas’ intoxication on the day of the murders rendered his confession unreliable. The Court pointed out that Lucas professed and exhibited a memory of the murders during his videotaped confession. The Court also rejected the argument that counsel failed to present Lucas life history as mitigation, finding that quite the opposite counsel presented substantial testimony of family history. The Court also rejected Lucas’ Brady claim, agreeing with the Georgia state courts that the testimony of a witness would have been cumulative at best. The Court rejected the request for a new trial based on the prosecutor’s improper statement during cross-examination during the penalty phase that prison escapes happen “every day.” The Court noted that the defense witness challenged this statement, and that the statement was “far less egregious” than what said by prosecutors in other cases in which no prejudice was held to have occurred. The Court rejected the argument that the jury should have been instructed that mitigating factors need not be found unanimously. The Court recognized that it is error to instruct a jury that it must agree unanimously on mitigating factors. But it found no requirement that an affirmative instruction must be given when the trial court has not otherwise suggested that unanimity is mandatory.

Thursday, October 09, 2014

Cole: Habeas petition untimely

In Cole v. Warden, Georgia State Prison, No. 13-12635 (Oct. 6, 2014), the Court held that a habeas petition was correctly dismissed for being untimely. Cole claimed that a habeas petition filed more than fifteen years after the limitations period had expired should be deemed timely, because he only discovered a violation at his guilty plea at this time. The Court noted that the written plea form Cole signed referred to the constitutional rights that Cole claimed were not mentioned at his plea colloquy. Cole failed to establish due diligence in discovering the violation. The Court also rejected Cole’s equitable tolling argument, again finding he failed to exercise reasonable diligence.

Friday, October 03, 2014

Winthrop-Redin: Allegations of death threats to plead guilty "incredible"

In Winthrop-Redin v. U.S., No. 13-10107 (Sept. 23, 2014), the Court affirmed the denial of 2255 relief to a defendant who pled guilty to possessing cocaine with intent to distribute, rejecting the claim that the defendant was coerced to plead guilty by death threats from other members of the crew of ths ship on which the cocaine was seized. The Court found that the claim that the plea was involuntary was based only on conclusory and incredible allegations, noting that the defendant at his plea colloquy said that he was not pressured, and waited more than two years after he pled guilty to say anything about alleged threats. Further, the defendant did not specifically allege that he told his attorney about the death threats.

Reed: Failure to investigate "incredible" witness not deficient

In Reed v. Sec., Fla. Dep’t of Corrections, No. 13-10900 (Sept. 24, 2014), the Court reversed a grant of habeas relief to a Florida inmate who claimed counsel was deficient in failing to investigate and call a witness at trial. The Court noted that the witness was unavailable around the time of trial. In addition, the witness, who had eight felony convictions, admitted he had memory problems. The State court had reasonable grounds for concluding that the witness was not credible. Further, the witness’ testimony would not have directly exculpated Reed. Finally, there was substantial remaining evidence implicating Reed.

Friday, September 26, 2014

Mathis: Search of 2011 cellphone valid even if based on 2004 calls

In U.S. v. Mathis, No. 13-13109 (Sept. 24, 2014), the Court affirmed convictions of enticing a minor to engage in sexual activity, and the 480-month sentence. The Court rejected the argument that the search of Mathis’ cellphone violated his Fourth Amendment rights because the affidavit submitted in support misleadingly claimed that one could recover information from a different cellphone in 2011 evidence of a crime committed in 2004. The affidavit noted that Mathis had maintained the same phone number since 2004, and that law enforcement reasonably believed that the cell phone would contain incriminating information. Alternatively, the Court found that the police relied in good faith on the search warrant. The Court also rejected the argument that a second search of the cellphone was invalid because it occurred eight months after the expiration of the warrant’s ten-day search period. The Court noted that a search conducted after a warrant’s expiration date does not necessarily require suppression. The Court rejected the argument that the Confrontation Clause was violated when the district court admitted in evidence a non-testifying victim’s text messages. The text messages were not statements to government officers, and were not made under circumstances that would lead an objective witness reasonably to believe that they would be available for use at a later trial. Turning to sentencing, the Court rejected the argument that the U.S.S.G. § 2G2.1(b)(6) enhancement for an offense involving a computer did not apply because Mathis merely used a cellphone. Deciding an issue of first impression, the Court held that the electronic high speed data processing of a cellphone meets the definition of a computer. The Court also rejected Mathis’s argument that a prior Florida conviction for lewd or lascivious conduct with a minor did not qualify as the basis for a aggravating sentence enhancement, because the offense did not require actual touching. The court noted that 18 U.S.C. § 2251(e) merely requires a prior offense “relating to” sexual abuse of a minor.

Wednesday, September 17, 2014

Kirk: "Remaining in" burglaries qualify as ACCA predicates

In U.S. v. Kirk, No. 13-15103 (Sept. 16, 2014), the Court held that prior burglary offenses counted as violent felonies under the Armed Career Criminal Act (ACCA). The Court rejected the argument that because the Florida burglary statute criminalized merely “remaining in” a structure with the intent to burglarize, as distinct from “entering” the premises, it did not qualify as a “violent felony.” The Court cited contrary Supreme Court and Circuit precedent involving “remaining in” burglaries, involving the “same risks” of injury. The Court also rejected the argument that the prior convictions were not committed on occasions different from one another. “[T]he charging documents submitted by the government show that Kirk pled guilty to burglarizing seven different dwellings, located at seven different addresses and owned by seven different people, on or about separate dates.” Finally, the Court rejected the argument that the government failed to prove that it is unconstitutional for a federal statute to punish purely intrastate conduct like firearm and ammunition possession that “substantially affected” interstate commerce. The Court cited precedent holding that a “minimal nexus” of the firearm being manufactured outside the state satisfied the jurisdictional element of § 922(g), which in turn defeated a challenge to the statute’s constitutionality.