In Lott v. Florida Attorney General, No. 09-14196 (Jan. 25, 2010), the Court held that a habeas petitioner had not made a substantial showing of the denial of a constitutional right, and therefore was not entitled to a certificate of appealability from the denial of a habeas petition.
Lott claimed that his counsel was ineffective for failing to put on an alibi defense. However, counsel investigated the alibi defense and found no support for it. A potential alibi witness declined to testify because she would not “lie for Lott anymore.” Moreover, Lott himself voluntarily chose not to testify in support of his alibi defense.
Friday, January 29, 2010
Arnaiz: Habeas Not a Vehicle For Challenging Restitution
In Arnaiz v. Warden, No. 07-12649 (Jan. 26, 2010), the Court held that the writ of habeas corpus under 28 U.S.C. § 2241 does not encompass claims that challenge the restitution portion of a judgment of conviction. The Court reasoned that habeas is about release from custody. A challenge to restitution is not related to custody. The Court noted that offenders who are not sentenced to a term of incarceration are not entitled to challenge orders of restitution, and saw no reason to treat Arnaiz differently simply because his judgment subjected him to both incarceration and restitution.
Thursday, January 28, 2010
Thompson: 2254 Petition Timely
In Thompson v. Sec. Dep’t of Corrections, No. 08-10540 (Jan. 27, 2010), the Court held that a § 2254 habeas petition was timely filed, and reversed the dismissal of the petition.
The timeliness of Thompson’s federal habeas petition turned on whether his prior “habeas” filings in Florida State courts were “properly filed” for the purpose of tolling the one-year statute of limitations of AEDPA. The State argued that they were not properly filed because Florida law requires such challenges to be made in a motion under Fla. R. Crim. P. 3.850, not in a “habeas petition.” The “properly filed” inquiry, however, goes to whether a court has “initial jurisdiction” over the filing. Here, Thompson “invoked the wrong statutory vehicle” but he filed in the “proper courts.” The State argued that Thompson filed in the wrong County. But the Court rejected this argument, because it went to a condition to obtaining relief, as opposed to a condition to filing.
The Court also rejected the argument that the state habeas petition should not toll the AEDPA time-limit because it incorrectly attacked his convictions, rather than challenging “unlawful detention.” The Court pointed out that Thompson alleged “that he was being illegally detained based on his unlawful convictions.”
The timeliness of Thompson’s federal habeas petition turned on whether his prior “habeas” filings in Florida State courts were “properly filed” for the purpose of tolling the one-year statute of limitations of AEDPA. The State argued that they were not properly filed because Florida law requires such challenges to be made in a motion under Fla. R. Crim. P. 3.850, not in a “habeas petition.” The “properly filed” inquiry, however, goes to whether a court has “initial jurisdiction” over the filing. Here, Thompson “invoked the wrong statutory vehicle” but he filed in the “proper courts.” The State argued that Thompson filed in the wrong County. But the Court rejected this argument, because it went to a condition to obtaining relief, as opposed to a condition to filing.
The Court also rejected the argument that the state habeas petition should not toll the AEDPA time-limit because it incorrectly attacked his convictions, rather than challenging “unlawful detention.” The Court pointed out that Thompson alleged “that he was being illegally detained based on his unlawful convictions.”
Caraballo: Biographical Information In I-213 Immigration Forms Do Not Violate Confrontation Clause
In U.S. v. Caraballo, No. 09-10428 (Jan. 27, 2010), the Court affirmed alien smuggling convictions.
The Court found probable cause for the defendant’s arrest, and affirmed denial of the motion to suppress: Law enforcement observed a fishing boat displaying inconsistent types of fishing rods; two persons aboard were nervously scanning the shoreline; once at the boat ramp the persons were moving as quickly as possible to load the boat onto a truck; they gave inconsistent answers to questions; and they appeared “very nervous.” Further, the agents were justified in undertaking a “protective sweep” of the boat (without a warrant): the conduct of the persons questioned by law enforcement gave reason to believe that there may have been another person on board (eleven illegal aliens were found, stowed away together in a cabin). In addition, under Florida law, an officer does not need probable cause to stop a boat to check for fishing permits, and opening a cabin door falls under that authorization.
The Court rejected the argument that the admission of biographical information regarding the eleven illegal aliens from the I-213 Immigration Forms violated the hearsay rule and the Confrontation Clause’s prohibition on the admission of testimonial statements. The Court found that “the basic biographical information recorded on the I-213 Form is routinely requested from every alien entering the United States.” It mattered not, therefore, that the information was later used in a criminal prosecution. The primary purpose of the questioning of the aliens is to elicit biographical information required of every foreign entrant. Moreover, any error in admitting the I-213s was harmless because the presence of eleven people, only one of whom could speak English, crammed into the closed cabin of a boat in August in South Florida, coupled with the cooperating witnesses’ testimony that they knew they were engaging in illegal smuggling, established alienage.
Turning to sentencing, the Court affirmed the “reckless endangerment” enhancement. “Caraballo smuggled eleven aliens on a five-and-one-half-hour open water voyage from the Bahamas to Miami in August in a small and enclosed cabin, on a twenty-five-foot fishing boat that was not equipped with enough life jackets.”
The Court also affirmed a supervisory role sentence enhancement, noting evidence that Caraballo recruited the others.
Finally, the Court affirmed the denial of an acceptance of responsibility sentence reduction, pointing out that Caraballo contested his guilt at trial, and maintained that he was an “innocent bystander.”
The Court found probable cause for the defendant’s arrest, and affirmed denial of the motion to suppress: Law enforcement observed a fishing boat displaying inconsistent types of fishing rods; two persons aboard were nervously scanning the shoreline; once at the boat ramp the persons were moving as quickly as possible to load the boat onto a truck; they gave inconsistent answers to questions; and they appeared “very nervous.” Further, the agents were justified in undertaking a “protective sweep” of the boat (without a warrant): the conduct of the persons questioned by law enforcement gave reason to believe that there may have been another person on board (eleven illegal aliens were found, stowed away together in a cabin). In addition, under Florida law, an officer does not need probable cause to stop a boat to check for fishing permits, and opening a cabin door falls under that authorization.
The Court rejected the argument that the admission of biographical information regarding the eleven illegal aliens from the I-213 Immigration Forms violated the hearsay rule and the Confrontation Clause’s prohibition on the admission of testimonial statements. The Court found that “the basic biographical information recorded on the I-213 Form is routinely requested from every alien entering the United States.” It mattered not, therefore, that the information was later used in a criminal prosecution. The primary purpose of the questioning of the aliens is to elicit biographical information required of every foreign entrant. Moreover, any error in admitting the I-213s was harmless because the presence of eleven people, only one of whom could speak English, crammed into the closed cabin of a boat in August in South Florida, coupled with the cooperating witnesses’ testimony that they knew they were engaging in illegal smuggling, established alienage.
Turning to sentencing, the Court affirmed the “reckless endangerment” enhancement. “Caraballo smuggled eleven aliens on a five-and-one-half-hour open water voyage from the Bahamas to Miami in August in a small and enclosed cabin, on a twenty-five-foot fishing boat that was not equipped with enough life jackets.”
The Court also affirmed a supervisory role sentence enhancement, noting evidence that Caraballo recruited the others.
Finally, the Court affirmed the denial of an acceptance of responsibility sentence reduction, pointing out that Caraballo contested his guilt at trial, and maintained that he was an “innocent bystander.”
Tuesday, January 26, 2010
Marquez: Extradition Arguments Not Raised Pre-Trial Are Waived
In U.S. v. Marquez, No. 08-12588 (Jan. 22, 2010), the Court affirmed the conviction of a defendant convicted of a RICO conspiracy in violation of 18 U.S.C. § 1962(c).
Marquez argued his extradition to the United States violated the “rule of specialty” and the “rule of dual criminality.” The Court pointed out, however, that Marquez failed to raise these objections prior to trial, as required by Fed. R. Crim. P. 12(b)(3)(A), (c). Because a challenge to extradition is a challenge to the means by which personal jurisdiction is obtained – not a matter of subject matter jurisdiction – it is waivable. Here, it was waived. Consequently, Marquez waived his “rule of specialty” and “dual criminality” challenges to his conviction.
Marquez argued his extradition to the United States violated the “rule of specialty” and the “rule of dual criminality.” The Court pointed out, however, that Marquez failed to raise these objections prior to trial, as required by Fed. R. Crim. P. 12(b)(3)(A), (c). Because a challenge to extradition is a challenge to the means by which personal jurisdiction is obtained – not a matter of subject matter jurisdiction – it is waivable. Here, it was waived. Consequently, Marquez waived his “rule of specialty” and “dual criminality” challenges to his conviction.
Bernal: No Improper Prosecution Bolstering
In U.S. v. Bernal-Benitez, the Court affirmed the convictions and sentences of defendants convicted of attempted cocaine-trafficking.
The Court rejected the argument that the evidence was insufficient because the government failed to establish that the cocaine “was actually cocaine,” noting that the government only had to prove that Bernal intended to obtain cocaine.
The Court also rejected Batson challenges to the government’s strike of a black juror, finding that the lower court could properly rely on the justification that the struck juror was “less educated” than the others in the venire.
The Court also rejected a challenge to the prosecutor’s improper “bolstering” arguments. The Court found that when the prosecutors asked why the FBI agents would lie and “put their badges on the line” when they testified, they were “merely acknowledging that adverse legal consequences would flow from lying under oath.”
The Court also rejected the argument that the prosecutors shifted the burden of proof when they argued that “nobody has submitted any evidence . . . to suggest to you why federal agents with years of experience [would lie].” The arguments focused on defense counsel’s ability rather than obligation to introduce evidence to support their credibility arguments.
The Court rejected the argument that one co-defendant’s Miranda rights were violated. The Court noted that even though the defendant had not signed his Miranda waiver form, this was not conclusive evidence. The district court therefore justifiably credited the agents’ testimony that the defendant had orally waived his Miranda rights.
The Court also rejected the defendant’s challenge to the voluntariness of his statement. The defendant pointed out that his written statement was in English, a language he did not speak. The Court, however, credited the agents’ testimony that the statement was translated for him.
Turning to sentencing, the Court rejected two defendants’ challenges to the denial of a minor role sentence reduction. The defendants pointed out that they remained in the vehicle while the drug buy was being negotiated, and had played no role in its planning. Further, they only brought cash in the amounts of $3,000 and $8,000 to a meeting to buy $35,000 of drugs. The Court found that all defendants “were engaged in a joint enterprise and that contributing $3,000 or $8,000 to a $35,000 drug buy was significant involvement.”
The Court rejected the argument that the evidence was insufficient because the government failed to establish that the cocaine “was actually cocaine,” noting that the government only had to prove that Bernal intended to obtain cocaine.
The Court also rejected Batson challenges to the government’s strike of a black juror, finding that the lower court could properly rely on the justification that the struck juror was “less educated” than the others in the venire.
The Court also rejected a challenge to the prosecutor’s improper “bolstering” arguments. The Court found that when the prosecutors asked why the FBI agents would lie and “put their badges on the line” when they testified, they were “merely acknowledging that adverse legal consequences would flow from lying under oath.”
The Court also rejected the argument that the prosecutors shifted the burden of proof when they argued that “nobody has submitted any evidence . . . to suggest to you why federal agents with years of experience [would lie].” The arguments focused on defense counsel’s ability rather than obligation to introduce evidence to support their credibility arguments.
The Court rejected the argument that one co-defendant’s Miranda rights were violated. The Court noted that even though the defendant had not signed his Miranda waiver form, this was not conclusive evidence. The district court therefore justifiably credited the agents’ testimony that the defendant had orally waived his Miranda rights.
The Court also rejected the defendant’s challenge to the voluntariness of his statement. The defendant pointed out that his written statement was in English, a language he did not speak. The Court, however, credited the agents’ testimony that the statement was translated for him.
Turning to sentencing, the Court rejected two defendants’ challenges to the denial of a minor role sentence reduction. The defendants pointed out that they remained in the vehicle while the drug buy was being negotiated, and had played no role in its planning. Further, they only brought cash in the amounts of $3,000 and $8,000 to a meeting to buy $35,000 of drugs. The Court found that all defendants “were engaged in a joint enterprise and that contributing $3,000 or $8,000 to a $35,000 drug buy was significant involvement.”
Thursday, January 14, 2010
Reed: Not Ineffective To Agree Not to Put On Evidence
In Reed v. Sec. Dep’t of Corrections, No. 09-10059 (Jan. 11, 2010), the Court affirmed the denial of habeas relief to a Florida inmate sentenced to death for a 1986 murder.
The Court rejected the argument that counsel was ineffective at the penalty phase when he agreed with the prosecutor not to put on any mitigating evidence in exchange for the prosecutor’s agreement not to present aggravating evidence. The Court noted that counsel had done a reasonable investigation of Reed’s background, that the mitigating evidence would not have changed the outcome, and that Reed himself had instructed counsel not to put on mitigating evidence. Moreover, Reed could not show that he suffered prejudice as a result of counsel’s decision, pointing out that evidence about Reed’s background that would have come in would have included “devastating” instances of his attacks on his grandmother.
The Court rejected the argument that counsel was ineffective at the penalty phase when he agreed with the prosecutor not to put on any mitigating evidence in exchange for the prosecutor’s agreement not to present aggravating evidence. The Court noted that counsel had done a reasonable investigation of Reed’s background, that the mitigating evidence would not have changed the outcome, and that Reed himself had instructed counsel not to put on mitigating evidence. Moreover, Reed could not show that he suffered prejudice as a result of counsel’s decision, pointing out that evidence about Reed’s background that would have come in would have included “devastating” instances of his attacks on his grandmother.
Wednesday, January 13, 2010
Ward: Bailiff-Juror Communication Requires New Penalty Phase Hearing
In Ward v. Hall, No. 07-11360 (Jan. 4, 2010), the Court granted habeas relief to a Georgia death-row inmate based on improper bailiff-jury communications during the penalty phase.
During jury deliberations in the penalty phase, the jurors were having difficulty imposing the death penalty, and three jurors asked the bailiff whether life without parole was an option. See generally, Reining in Juror Misconduct: Practical Suggestions for Judges and Lawyers, 84 Fla. B. J. 9 (Jan. 2010). The bailiff responded that it was not an option. Under Georgia law, if the jury so inquires of the trial judge, the judge is required to inform the jury that it is not to consider the question of parole. “By advising that life without parole was not an option, the bailiff left the [false] impression that Ward could or would be released on parole if the jury sentenced him to life imprisonment.” The Court added: “We do not take lightly our decision to reverse a death sentence rendered eighteen years ago. Nevertheless the record establishes that the improper bailiff-juror communication violated Ward’s constitutional rights and prejudiced him. Accordingly he is entitled to a new penalty phase hearing.”
During jury deliberations in the penalty phase, the jurors were having difficulty imposing the death penalty, and three jurors asked the bailiff whether life without parole was an option. See generally, Reining in Juror Misconduct: Practical Suggestions for Judges and Lawyers, 84 Fla. B. J. 9 (Jan. 2010). The bailiff responded that it was not an option. Under Georgia law, if the jury so inquires of the trial judge, the judge is required to inform the jury that it is not to consider the question of parole. “By advising that life without parole was not an option, the bailiff left the [false] impression that Ward could or would be released on parole if the jury sentenced him to life imprisonment.” The Court added: “We do not take lightly our decision to reverse a death sentence rendered eighteen years ago. Nevertheless the record establishes that the improper bailiff-juror communication violated Ward’s constitutional rights and prejudiced him. Accordingly he is entitled to a new penalty phase hearing.”
Boyd: New mitigating evidence would not have changed outcome
In Boyd v. Allen, No. 07-14098 (Jan. 8, 2010), the Court (2-1) (Barkett, J., dissenting) reversed a grant of habeas relief to an Alabama inmate sentenced to death for two 1986 murders. The Court recognized that the inmate’s trial counsel were ineffective for failing at the penalty phase to present mitigating evidence based on Boyd’s troubled childhood. However, balancing this evidence de novo against the aggravating evidence against Boyd of the brutal nature of his murders, the Court found no reasonable probability that the mitigating evidence would have changed the outcome of the penalty phase of the proceedings.
Monday, January 11, 2010
White: Firearm Possession Prohibition on Domestic Violence Convicts Valid post-Heller
In U.S. v. White, No. 08-16010 (Jan. 11, 2010), the Court affirmed a conviction for possession of a firearm by a person convicted of a misdemeanor crime of domestic violence.
The Court rejected the argument that one police officer’s recollection that he smelled marijuana was not credible, because the other arresting officer did not recall a smell of marijuana. Because the testimony was credible, the smell gave the officer reasonable suspicion for further investigation – which led him to find a firearm. In addition, the officers were outnumbered by the persons they found in a car, after getting a complaint about loud music in a high crime area late at night, and the occupants of the car could not produce identification.
The Court also rejected the argument that White’s prior conviction did not qualify under the firearm possession statute. White had been convicted of conduct involving a dispute in which he tried to choke his live-in girlfriend. A dispute with a live-in girlfriend qualifies as a “domestic dispute.”
Finally, the Court rejected the argument that the Supreme Court’s recent decision in Heller, striking down Washington D.C.’s firearm ban, made unconstitutional the statute criminalizing firearm possession by a person convicted of domestic violence. The Court found that this statute was one of the “longstanding prohibitions” on firearm possession that Heller did not call into doubt.
The Court rejected the argument that one police officer’s recollection that he smelled marijuana was not credible, because the other arresting officer did not recall a smell of marijuana. Because the testimony was credible, the smell gave the officer reasonable suspicion for further investigation – which led him to find a firearm. In addition, the officers were outnumbered by the persons they found in a car, after getting a complaint about loud music in a high crime area late at night, and the occupants of the car could not produce identification.
The Court also rejected the argument that White’s prior conviction did not qualify under the firearm possession statute. White had been convicted of conduct involving a dispute in which he tried to choke his live-in girlfriend. A dispute with a live-in girlfriend qualifies as a “domestic dispute.”
Finally, the Court rejected the argument that the Supreme Court’s recent decision in Heller, striking down Washington D.C.’s firearm ban, made unconstitutional the statute criminalizing firearm possession by a person convicted of domestic violence. The Court found that this statute was one of the “longstanding prohibitions” on firearm possession that Heller did not call into doubt.
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