McNeil: Extraordinary Attorney Negligence Tolls AEDPA period

In Downs v. McNeil, No. 05-10210 (March 24, 2008), the Court held that equitable tolling may apply to a Florida death row inmate’s otherwise untimely federal habeas petition.
The Court recognized that a showing of "ordinary" attorney negligence would not suffice to equitably toll AEDPA’s statute of limitations. Here, however, Downs showed "extraordinary" negligence and even wilful misconduct, including an instance where an attorney lied to him about having filed a document that would have tolled the running of his limitations period. In view of the "extraordinary circumstances" presented, the Court remanded the case for an evidentiary hearing to determine whether equitable tolling applied.

Maupin: Florida nolo contendere w/ adjudication withheld counts as prior conviction

In United States v. Maupin, No. 07-03341 (March 24, 2008), the Court held that a child pornography offender’s prior Florida nolo contendere plea with adjudication withheld to Florida child pornography charges counted as a prior conviction for purposes of the sentencing enhancement under 18 U.S.C. § 2252(A)(b)(1) and (b)(2).
The statute provided for enhancements for prior convictions "under the laws of any State." Maupin argued that under Florida state law, a nolo contendere plea with adjudication withheld is not considered a conviction, and that this plea should therefore not count under the federal statute. The Court rejected this argument, holding that as it had held with respect to the federal drug statute, the meaning of the word "conviction" has a federal meaning, unless Congress specifically provides otherwise. Under federal law, a nolo contendere plea with adjudication withheld counts as a prior conviction. Thus, Maupin’s prior nolo contendere plea with adjudication withheld counted as a prior conviction for federal sentencing purposes. The Court therefore affirmed the 480-month sentence.

Devine: No further duty to consult about appeal

In Devine v. U.S., No. 07-11206 (March 20, 2008), the Court held that defense counsel was not ineffective for failing to file a notice of appeal.
The defendant pled guilty. The plea was valid. His plea included an appeal waiver. The waiver provided that the only issue he could appeal was the legality of his sentence. The low-end Guideline range sentence was legal.
The defendant claimed that counsel failed to fully inform him about the advantages and disadvantages of an appeal. The Court assumed arguendo that counsel did not fully discuss the advantages and disadvantages of an appeal, but still found no ineffective assistance of counsel. First, the factual record below showed that the defendant did not reasonably demonstrate to counsel that he was interested in appealing. Second, no rational defendant would want to appeal in these circumstances. Thus, counsel had no duty to consult further with the defendant about an appeal.

Burgest: Dual Sovereignty Precludes Suppression

In U.S. v. Burgest, No. 06-11351 (March 13, 2008), the Court rejected the defendant’s argument that statements he gave to federal investigators should be suppressed, because his right to counsel had attached in State criminal proceedings for the same drug offense, and the statements were obtained in violation of his right to counsel.
The Court recognized that the right to counsel had attached on the State charges. However, the right to counsel is offense specific, here to the State charge. The federal offenses were distinct. The Court relied on the "dual sovereignty rule," and held that the State right to counsel did not attach to the federal charges.

Stratton: Kimbrough remand

In U.S. v. Stratton, No. 06-10080 (March 13, 2008), the Court remanded a case for resentencing on Kimbrough grounds. The Court noted that the defendant had preserved the Kimbrough issue by challenging the crack/powder disparity in his appeal. Further, the district court at sentencing specifically rejected Stratton’s argument that it had the authority to consider the crack/powder disparity as a basis for a sentence reduction.

Lawhorn: Habeas relief granted on ineffectiveness grounds

In Lawhorn v. Allen, No. 04-11711 (March 11, 2008), the Court (Barkett, Wilson, Cox), affirmed a district court’s grant of habeas relief to an Alabama death row inmate, on ineffective assistance of counsel grounds.
The district court had ruled that Lawhorn was entitled to habeas relief on the ground that a confession that he gave was the product of an unlawfully long five-day detention without access to counsel. The Court pointed out, however, that the state courts had found that Lawhorn’s confession was voluntary, based on the fact that he was twice given his Miranda warning. This finding was entitled to deference.
The Court found that counsel was ineffective in waiving the giving of a closing argument during the penalty phase of the proceedings. Counsel had waived closing argument based on a misunderstanding of the rules – he thought his waiver would preclude the prosecution from making rebuttal closing. The prosecution was in fact permitted to make a rebuttal closing. The fact that counsel misunderstood the law precluded a finding that he made a sound "strategic" decision. In addition, Lawhorn was prejudiced by the failure to give a closing argument, because he had a good argument that he was a victim of "domination" by the person who made him commit the murder.

Gordon: Counsel not ineffective in failure to insist on allocution

In Gordon v. U.S., No. 05-16703 (March 7, 2008), the Court held that the defendant did not establish ineffective assistance of counsel. Gordon claimed that his counsel was ineffective for failing to object to the district court’s failure to address Gordon personally at sentencing. The Court held that even though such a failure can constitute "plain error" on direct appeal, it would not presume prejudice to the defendant in a § 2255 context. Here, the defendant did not establish prejudice.
The Court also rejected Gordon’s request for an evidentiary hearing into his ineffective assistance of counsel claim. The Court noted that it could conceive of reasonable motivations for counsel’s failure to insist on the Gordon’s right to speak up at sentencing, to wit, Gordon’s remarks "might lead the court to consider [him] even less honest than it already considered him."

Michel: 2255 motion unsigned but timely

In Michel v. U.S., No. 06-13982 (March 11, 2008), the Court held that even though an inmate initially filed an unsigned § 2255 motion, and only later filed a signed motion – after the running of the statute of limitations – the timeliness of the initial unsigned prevented his motion from being dismissed on untimeliness grounds.
The Court noted that the Rules Governing § 2255 proceedings were specifically amended to provide that a clerk should file, instead of reject, an unsigned § 2255 motion. This amendment was not in effect at the time Michel filed his motions, but it was in effect at the time the district court dismissed his motion – which was the relevant time period. The Court also noted that the Rules Governing § 2255 proceedings trumped the Federal Rules of Civil Procedure, when these two differ, and the district court therefore erred in relying on Fed. R. Civ. P. 11 in dismissing Michel’s petition.

Aviles: Withdrawal determines which Guideline manual to apply in "constant" conspiracies

In U.S. v. Aviles, No. 05-14446 (March 4, 2008), the Court, on a government appeal, reversed the district court for possibly using the wrong Guidelines manual at sentencing.
A sentencing court should apply the Guidelines manual in effect at the time of sentencing, unless use of this manual would violate the Ex Post Facto Clause (because the punishment increased after the defendant committed the offense), in which case it should use the manual in effect at the time the crime was committed. This rule can raise issues in conspiracy cases, where the crime continues over time, somewhat indefinitely. Was the defendant still involved in the conspiracy at the time of the later manual? Or did he withdraw? Can the reasonably foreseeable acts of his co-conspirators extend the conspiracy, even if he withdrew, since these acts are part of the defendant’s "relevant conduct"? Are the acts of a co-conspirator reasonably foreseeable when the conspiracy itself is sporadic?
The Court held that only when a conspiracy is "sporadic" can the cessation of one defendant’s participation cut-off the time for applying a new Guidelines manual. When (as here) a conspiracy is constant and consistent, then only withdrawal from the conspiracy will avoid application of a new Guidelines manual (under ex post facto principles). Here, the district court failed to address the withdrawal question. The Court therefore remanded the case for consideration of when the defendants withdrew from the conspiracy.

Deverso: Mistake of Age not a 2252 defense

In U.S. v. Deverso, No. 06-16048 (March 5, 2008), the Court affirmed convictions for using a minor to engage in sexually explicit conduct outside the United States for the purpose of producing a visual depiction of such conduct within the United States.
The Court found that the birth certificate of a victim in the Philippines was adequately authenticated, as a foreign public document under FRE 902(3). Here, a government agent testified that he obtained the certificate from the Philippine National Census and Statistics Office and that he had the copy authenticated and certified at the United States Embassy in Manila. The document itself was accompanied by certificates from Embassy official verifying the document’s authenticity.
The Court rejected the defendant’s argument that he was entitled to a "mistake of age" jury instruction. The Court noted that the statute contained no element requiring the defendant to know the age of the victim, and added that the Constitution did not require such an element to be included in the statute.

Alexander: Fla. 3.800(c) motion does not toll AEDPA limitations

In Alexander v. Sec. Dep’t of Corrections, No. 06-12501 (March 3, 2008), vacating its prior opinion, the Court held that a motion under Florida Rule of Criminal Procedure 3.800(c) does not toll the AEDPA limitations period. Accordingly, the Court dismissed the Florida inmate’s § 2254 petition as untimely.
The Court noted that, unlike Fla. R. Crim. P. 3.850 motions, or even 3.800(a) motions, which challenge the legality of a judgment, a 3.800(c) motion merely invoked the leniency of the court and set forth no challenge of legal error. Consequently, this was not the type of State post-conviction application which tolled the AEDPA limitations period.

Dean: Accidental Discharge Still Triggers Higher Penalty

In U.S. v. Dean, No. 06-14918 (Feb. 20, 2008) (Hull, Pryor, Moore, KM, b.d.), the Court affirmed the conviction and sentences of defendants convicted as a result of an armed bank robbery which netted them $3,642.
Rejecting the challenge to a Hobbs Act conviction based on the government’s Confrontation Clause violation in proving up the fact of FDIC insurance, the Court held that no such proof was required. For Hobbs Act violations, unlike bank robbery, proof of FDIC insured status is not a required element of the offense.
The Court further rejected the argument that a sentence should not have been enhanced under 18 U.S.C. § 924(c)(1)(A)(iii) for "discharge" of a firearm, because here the discharge was "accidental." The Court noted that § 924(c) contains no separate intent element. Though noting a Circuit split on this point, the Court held that an accidental discharge sufficed to impose the higher penalty.
Finally, the Court rejected one defendant’s argument that the sentencing court improperly counted four separate prior convictions in the criminal history score, when they should have been treated as "related cases." The Court held that any error need not be addressed because the sentencing court stated that even if its calculation were wrong it would still impose the sentence it did, this time under its § 3553(a) sentencing discretion – and the Court found that such a sentence would have been "reasonable."

Fotopoulos: Not Ineffective Not to Challenge Inconsistent Theories

In Fotopoulos v. Secretary, Dep’t of Corrections, No. 07-11105 (Feb. 17, 2008), the Court reversed the grant of habeas relief to a Florida inmate sentenced to death for two 1989 murders.
The Court rejected the fact-finding that Fotopoulos’s counsel was ineffective for allowing the state to put on inconsistent theories regarding Fotopoulos’ guilty, one which emphasized his domination of his accomplice, and one which did not. The Court found that defense counsel’s testimony indicated that he made a reasonable strategic decision on how to address the inconsistent arguments of the State – and the district court should have deferred to the fact-finding by the State of Florida on this point. Finally, no prejudice to Fotopoulos occurred, as he acknowledged his "prime responsibility" for the murders.
The Court also rejected the district court’s conclusion that the State’s reliance on inconsistent theories violated Due Process. The Court noted that the Supreme Court of the United States had not squarely held that putting on inconsistent theories violated Due Process at the time of the State court decision affirming the death sentence. Consequently, under AEDPA, the State court judgment was not "clearly contrary" to Supreme Court precedent, and deserved deferrence.

De La Garza: No Plain Error in Gov't Violation of Plea Agreement

In U.S. v. De La Garza, No. 06-13396 (Feb. 15, 2008), the Court affirmed the conviction of a defendant who pled guilty to conspiracy to possess more than five kilos of cocaine with intent to distribute, in violation of the Marine Drug Law Enforcement Act ("MDLEA").
The Court first rejected the challenge to the guilty plea based on the defendant’s breach of the plea agreement. The Court agreed with De La Garza that the government breached the agreement when it argued that his credibility at sentencing was not "credible," when it had agreed in the plea to the very version of events to which De La Garza later testified. However, reviewing the issue for "plain error," the Court found no violation of De La Garza’ substantial rights, because the district court credited De La Garza’s testimony even as it imposed the sentence it did.
The Court also rejected De La Garza challenge to subject matter jurisdiction. The Court noted that the defendant, at the plea colloquy, admitted that his vessel was without nationality, and thus established the fact sufficient to establish subject matter jurisdiction.

Pugh: Five Years Probation Unreasonable for Child Pornography Possessor

In U.S. v. Pugh, No. 07-10183 (Jan. 31, 2008), in its first sentencing decision applying the Supreme Court’s recent Gall and Kimbrough holdings, the Court held that the district abused its discretionary by imposing a probationary sentence on a defendant convicted of possession of images of child pornography.
Despite a low-end recommended guideline range of 97 months, and supervised release, the district court sentenced Pugh to five years probation. The district court held two sentencing hearings, and concluded that Pugh had a low-risk of recidivism.
The Court faulted the sentencing court for relying on only one § 3553(a) sentencing factor – the history and characteristics of the defendant -- which suggested an unreasonable sentence because of the failure to consider "all" of the § 3553(a) factors. The Court faulted the sentencing court for not giving due emphasis to the fact that the some of the images were "grotesque," and for focusing on the defendant’s motivation, when his willfulness in committing the offense was undisputed.
Turning to the § 3553(a) factors, the Court found that the sentencing court had no adequately considered the "general deterrence," purpose of § 3553(a) – a factor particularly important in combating "the child pornography market." The Court also noted the "devastating" impact of child pornography on the children, and pointed out how Congress has progressively stiffened the penalties for child pornography. The district court’s sentence, therefore, "did not reflect the seriousness of the crime." The Court noted that the defendant himself was willing to submit to a lifetime of supervised release, a much greater period of supervision than five years of probation. This called into question whether adequate rehabilitation could be achieved.
The Court also noted that the sentence deviated sharply from the Guidelines sentence of 97 months at the low-end. This "major" departure was not supported by the sentencing court’s mere reliance on Pugh’s characteristics and motive. In addition, unlike the crack guidelines at issue in Kimbrough, the child pornography guidelines did not suffer from "criticisms." The Court also noted that its caselaw showed that offenders like Pugh typically receive much harsher sentences. Thus Pugh’s sentence created a disparity. The Court recognized that there might be cases where a non-custodial sentence would be reasonable for a child pornography offender, but this was not one of them.

Al-Arian: Promise not to Subpoena Must be Explicit in Plea Agreement

In U.S. v. Al-Arian, No. 06-16008 (Jan. 25, 2008), the Court held that when a plea agreement contains no agreement providing that a defendant is immune from a future grand jury subpoena, the plea agreement does not prevent the government from subpoenaing the defendant to testify before a grand jury.
The Court first addressed whether the appeal had become moot, because the district court judgment which had held Al-Arian in contempt for failure to comply with the subpoena, and pursuant to which he had been sentenced, had since been vacated. The Court noted that any time Al-Arian had served for the contempt would be credited toward the sentence he was serving on the guilty plea if the Court held that the district court erred by holding him in contempt. Hence the case was not moot.
The Court also held that it had subject matter jurisdiction. The Court held that a § 2255 motion can be used to enforce promises made in a plea agreement.
Al-Arian’s plea agreement contained no terms regarding whether he agreed to cooperate with the government in the future, or whether he could be required to do so. Al-Arian noted that the government agreed to omit the standard cooperation provision from the plea agreement, and argued that this removal of language in effect immunized him from having to give any future testimony. The Court rejected this argument. Looking only to the language of the plea agreement itself, which stated that no other promises were made other than those contained therein, the Court held that the plea agreement did not prevent the government from issuing a subpoena.

Masferrer: Bank CEO fraud conviction affirmed

In U.S. v. Masferrer, No. 06-14223 (Jan. 22, 2008), the Court affirmed the conviction and sentence of a bank CEO convicted of bank and securities fraud. The fraud arose out of Masferrer’s attempt to conceal bad bank investments in Russian assets.
The Court rejected the challenge to the technical violation of the recusal rules when the case was directly reassigned to another judge. The Court noted the failure to show any potential bias.
The Court also rejected the argument that evidence of the subsequent (higher) value of the assets – subsequent to the fraud – should have been admitted in Masferrer’s defense. The Court noted that the relevant time period was Masferrer’s belief and intent at the time of the fraud, not afterward.
Turning to sentencing, the Court rejected Masferrer’s challenge to the use of 2001 Guidelines, pointing out that these Guidelines predated the completion of the conspiracy and therefore presented no Ex Post Facto issue. The Court also rejected Masferrer’s challenge to the calculation of a loss between $20 and $40 million. The Court rejected the argument that $ 22 million should not have been included as a loss to the bank, because they represented Russian assets that were worthless before the fraud occurred, and the bank would have suffered that unrealized loss, and, in fact, did not do so as a result of his fraudulent conduct. "Masferrer may not have caused the Russian assets to decline in value, but his criminal activity did cause them to be sold when they were in fact worthless, and consequently, caused the $22 million to be realized by the bank."

Flint: Shelton Not Extended

In Flint v. Jordan, No. 06-11897 (Jan. 22, 2008), the Court held that a § 2255 petition was untimely, even though the prior state conviction which the defendant challenged had been obtained without the assistance of counsel. The Court noted that the Supreme Court’s decision in Alabama v. Shelton, 535 U.S. 654 (2002) held that a "suspended sentence" that may end up in the deprivation of a person’s liberty may not be imposed if the defendant does not receive the assistance of counsel. Here, Flint challenged a conviction which resulted in a sentence of probation, not one which resulted in a suspended sentence. Thus, Flint was asking for an "extension" of Shelton, not a direct application of it – and he could not therefore claim that Shelton was retroactively applicable, and avoid the AEDPA bar on his untimely § 2255 motion.

Johnson: State extension of time does not create federal equitable tolling

In Johnson v. Fla. Dep’t of Corrections, No. 07-12115 (Jan. 17, 2008), the Court held that a Florida death row’s federal habeas petition was untimely.
The state inmate claimed that there was a delay in the appointment of his post-conviction lawyer in Florida state court. The Court held that this was not an excuse for untimeliness because prisoners in capital cases have no constitutional right to post-conviction counsel. The Court also rejected the claim that the unavailability of requested documents was an impediment to the § 2254 proceeding. Finally, the court found the "equitable tolling" doctrine inapplicable, because, even though Johnson was granted an extension of time to file for state post-conviction relief, this did not affect the timeliness of his federal petition.

Dorsey: Failure to File 5K1.1 can be unconstitutional

In U.S. v. Dorsey, No. 06-16698 (Jan. 14, 2008), in a case of first impression in the Circuit, the Court held that the government’s alleged refusal to file a once-promised § 5K1.1 motion for reduction of sentence because the defendant elected to go to trial instead of pleading guilty could constitute an "unconstitutional motive," and could therefore be the basis for a district court’s downward departure based on the defendant’s cooperation, independent of a government motion.
The Court stated that unconstitutional vindictiveness could be established either by showing facts that gave rise to a presumption of vindictiveness, or by offering evidence of a prosecutor’s actual vindictiveness. Here, the government stated that it did not file a 5K1.1 because Dorsey’s assistance was not substantial and because he started dealing drugs, again. This overcame the presumption of vindictiveness. On remand, therefore, Dorsey would have to show "actual" vindictiveness. This showing is "exceedingly difficult." Dorsey would have to present evidence that the government acted solely to punish him for exercising his legal rights, and that the reasons proffered by the government were pretextual.