Eleventh Circuit Court of Appeals - Published Opinions
Tuesday, February 09, 2016
In Danny v. Sec., Fla. Dep’t of Corrections, No. 14-15522 (Feb. 3, 2016), the Court affirmed the denial of habeas relief, holding that a Florida inmate’s petition for belated post-conviction appeal did not toll the one-year statute of limitations. The Court explained that the statute of limitations is only tolled when an application for “collateral review” is pending in the state courts. But the Court held that an application for a belated appeal is not an application for “collateral review,” as it does not challenge any ruling in the criminal case.
Monday, February 01, 2016
In Patterson v. Sec., Fla. Dep’t of Corrections, No. 12-12653 (Jan. 29, 2016) (2-1), the Court held that a habeas petition was not subject to the restrictions on “second and successive” petitions because the state court had amended the judgment to eliminate a requirement of chemical castration, and the petition was the first habeas petition from this amended judgment. The Court analogized Patterson’s case to Magwood v. Patterson, 561 U.S. 320 (2010) and Insignares v. Secretary, 755 F.3d 1273 (11th Cir. 2014), cases in which an amended judgment meant that the subsequent habeas petition, challenging the amended judgment, was not second or successive.
Friday, January 29, 2016
In Overstreet v. Warden, No. 13-14995 (Jan. 27, 2016), the Court (Black, Martin, and Anderson., JJ.) reversed the denial of habeas relief to a Georgia inmate.. The Court held that Georgia appellate counsel was constitutionally ineffective in failing to raise on appeal, in the Georgia appellate courts, the issue that convictions for the crime of “kidnapping” should be reversed, because intervening Georgia law held that the asportation of victims during a robbery did not constitute “kidnapping.” The Court noted that appellate counsel has no duty to raise every non-frivolous issue and reasonably weed out weaker (albeit meritorious) arguments. Only when ignored arguments are “clearly stronger than those presented” will appellate representation be ineffective. The Court noted: “In many (perhaps most) cases, counsel may err without being deficient or may be deficient without causing prejudice.” But in light of intervening Georgia caselaw, Overstreet’s kidnapping convictions would have been reversed. Therefore, appellate counsel’s representation was “undeniably ineffective.”
Wednesday, January 27, 2016
In U.S. v. Bowers, No. 14-11585 (January 22, 2016), the Court affirmed the convictions for eight Hobbs Act violations and eight counts of carrying, using a firearm in violation of 18 U.S.C. § 924(c), and a sentence of 332 months. Bowers had filed an untimely motion for severance of the counts of the Indictment. Reviewing this issue for plain error on account of the untimeliness (and finding that waiver did not apply under newly-amended Fed. R. Crim. P. 12), the Court found no plain error. The Court dismissed as “speculation” Bowers’ argument that the jury may have cumulated evidence from joined counts. The Court noted that to the contrary the relatedness of the robberies permitted the jury to use identity evidence from other counts to determine the robber’s identity. Though recognizing that the sufficiency of the evidence challenge presented a “close case,” the Court found that the common modus operandi of the robberies and the totality of the identity evidence sufficed to convict Bowers. The Court recognized that a scientific inference from DNA evidence might have been problematic, but concluded that the additional identity evidence and the modus operandi evidence made an inference based on DNA “permissible.” The Court rejected Bowers’ challenges to his sentence, including his claim that the sentence was cruel and unusual under the Eighth Amendment. The Court noted that in Harmelin v. Michigan, the Supreme Court rejected an Eighth Amendment challenge to a sentence of life without parole for possession of cocaine.
Thursday, January 21, 2016
In McCarthan v. Warden, FCC Coleman, No. 12-14989 (Jan. 20, 2016), the Court held that the savings clause of 28 U.S.C. 2255(e) did not permit the district court to entertain a petition under 28 U.S.C. § 2241 challenging an ACCA sentence. The Court explained that even after disqualifying two of the prior convictions that had qualified McCarthan as an armed career criminal at his original sentencing – in light of intervening Supreme Court caselaw – three qualifying convictions still supported the ACCA enhancement. Consequently, McCarthan could not obtain subject matter jurisdiction to decide his § 2241 petition.
In U.S. v. Lockett, No. 14-15084 (Jan. 21, 2016), the Court vacated the sentence of a defendant sentenced as an armed career criminal under ACCA. Lockett argued that his two prior conviction for “burglary” in South Carolina did not count as predicate “violent felony” offenses. The Court agreed. Noting that Descamps requires that a sentencing court to determine whether a statute is “divisible” or “indivisible” based on whether it requires proof of alternative elements, the Court concluded that South Carolina’s burglary statute was indivisible, because it merely requires proof of entry in a “dwelling,” and the type of dwelling is not an element of the offense. Under South Carolina law, the type of dwelling includes locales, for example, a “vehicle,” that are not “generic” burglary, that is, do not involve entry into a “building or structure.” In a footnote, the Court noted its precedent that had held, on plain error review, that the South Carolina statute was “divisible.” But Lockett preserved the issue, so review was de novo, not for “plain error” – and on de novo review, Lockett prevailed.
In U.S. v. Zitron, No. 14-10009 (Jan. 21, 2016), the Court affirmed convictions for filing false tax returns, use of an unauthorized access device, and aggravated identity theft. The Court rejected the argument that the counts charging identity theft, which involved stealing the identities of the defendant’s son and his ex-wife, should have been severed from the tax counts. The Court noted that the district court instructed the jury to treat the counts separately, and that evidence of one crime would have been admissible at a separate trial on the other crime. The Court rejected the argument that a government expert improperly commented on Zitron’s failure to testify when he said that absent an explanation from the defendant, the cash in his bank account would be treated as income. In context, the statement was not impermissible. Turning to the challenge of the sufficiency of the evidence on the aggravated identity theft, the Court noted that because defense counsel at trial did not make the “specific argument” in his Rule 29 motion that was being raised on appeal, the sufficiency issue would only be reviewed for “plain error.” The Court found no “plain error,” in light of testimony that Zitron did not have permission to use another’s identity. The Court rejected the argument that the calculation of the tax loss figure should only have included amounts deposited in Zitron’s bank accounts. All conduct violating the tax laws was the proper basis for the loss calculation. The Court also rejected Zitron’s challenge to his “organizer or leader” sentence enhancement, pointing out that both of the person Zitron directed knew that he was engaged in a scheme to hide the source of his income for tax purposes.
Friday, January 15, 2016
In U.S. v. Adams, No. 14-14329 (Jan. 12, 2016), the Court vacated the 15-year sentence of a defendant sentenced under the Armed Career Criminal Act (ACCA), because he had been sentenced under ACCA’s residual clause. Two of Adams’ prior convictions were for third-degree fleeing or attempting to elude, in violation of Fla. Stat. § 316.1935. In the trial court, Adams had objected that the residual clause was unconstitutionally vague, and, while his appeal was pending, the Supreme Court so held in Johnson. The Court noted that Adams’ § 315.1935 prior convictions, post-Johnson, could qualify as predicate offenses only if they qualified under other ACCA provisions, such as the elements clause. But the § 315.1935 offenses did not have as an element the use of physical force and did not otherwise qualify. Those prior convictions were no longer ACCA-qualifying offenses, as the government conceded. The Court noted that at sentencing the government “disavowed reliance on a fourth conviction to form the basis of the ACCA enhancement. Citing U.S. v. Canty, the Court held that the government thereby waived its opportunity to now rely on this fourth offense.
Monday, January 11, 2016
In U.S. v. Salmona, No. 15-12659 (Jan. 8, 2016), the Court held that the district court lacked subject matter jurisdiction to adjudicate an inmate’s claim that the government breached its plea agreement when it failed to make him serve his sentence in a federal prison, as opposed to a state prison. Salmona’s plea agreement provided that in exchange for his cooperation, the government would allow him to serve a state sentence in federal custody. The agreement also provided that in the event Salmona gave false testimony, the promise of immunity would be void. Salmona gave false testimony, and the government relied on this breach to rescind the plea agreement, including its promise to have Salmona serve his state sentence in federal prison. Salmona then brought an action in the district court, seeking to enforce the federal custody provision of his plea agreement. The Court found that the mandamus statute, 28 U.S.C. § 1361, was the only basis for Salmona’s claim, but this requires a showing that the government owed Salmona a clear nondiscretionary duty. Here, it was “disputable” whether the government could rescind the entire plea agreement, based on Salmona’s false testimony, because this was a “substantial” breach of the plea agreement. The Court noted a Second Circuit case holding that the government could rescind a plea agreement when the defendant was in material breach of the agreement. [Note: this Second Circuit case did not involve a plea agreement, as here, that specified the government’s remedy [voiding a promise of immunity] in the event the defendant gave false testimony]. Because it was disputable whether Salmona was entitled to relief, he did not satisfy the jurisdictional requirement of showing a clear non-discretionary duty.