Lynd: No habeas relief for lack of mental health expert

In Lynd v. Terry, No. 06-11374 (Nov. 28, 2006), the Court denied habeas relief to a Georgia inmate sentenced to death for a 1988 murder.
The Court rejected the claim that Lynd was deprived of his right to the assistance of competent experts in violation of Ake v. Oklahoma, 470 U.S. 68 (1985). The Court found that much of Lynd’s claim was procedurally barred because he failed to raise it earlier, in state proceedings. Further, the Court held that the Georgia state courts did not deviate from federal precedent when they held that Lynd was not entitled to call a mental health expert to testify on his behalf when he refused to submit to an examination by an expert hired by the State of Georgia.
The Court also rejected the argument that counsel was ineffective in advising Lynd to refuse to submit to a state mental health examination, finding that it was Lynd himself who so decided. The Court also found that counsel adequately investigated Lynd’s background and mental health.
The Court further rejected the claim that counsel failed to investigate whether the victim would have not have regained consciousness after being shot in the head twice and placed in the trunk of a car, thereby obviating a kidnapping conviction. The Court found that this argument was developed and presented to the jury.
Finally, the Court rejected the argument that counsel’s representation, years earlier, of the victim’s mother’s ex-husband in a bankruptcy proceeding created a conflict-of-interest.

Ayers: Catchall Instruction ok for Death Sentence

In Ayers v. Belmontes, No. 05-493 (Nov. 13, 2006), the Supreme Court held that there was no reasonable likelihood that jurors in the penalty phase of a capital case interpreted the court’s "catchall" instruction, which directed the jurors to consider "[a]ny other circumstance which extenuates the gravity of the crime" to preclude consideration of the petitioner’s evidence that he would lead a constructive life if incarcerated. The Court held that in light of the arguments of both defense counsel and the prosecution during the penalty phase regarding the petitioner’s potential for improvement, it was implausible that the jury would have understood the instruction to preclude its consideration of rehabilitation evidence. Consequently, the instruction was consistent with the constitutional right to present mitigating evidence in a capital proceeding.

Williams: 5-kilo conspiracy plus priors = mandatory life

In U.S. v. Williams, No. 06-10302 (Nov. 13, 2006), the Court affirmed the imposition of a mandatory life sentence for conspiracy to possess five or more kilos of cocaine, pursuant to 21 U.S.C. § 841(b)(1)(A)(ii).
The Court rejected Williams’ argument that his five-kilo conspiracy conviction could not be treated as having occurred after two or more prior felony convictions became final, because the five-kilo transaction occurred before the one of his prior convictions became final. The Court pointed out that conspiracy is a continuing crime, and that here the conspiracy to distribute cocaine, of which the five-kilo transaction was but one object, continued after the prior drug conviction became final. Hence, it was correct to count this prior conviction against Williams for purposes of imposing a mandatory life punishment.
Reviewing Williams’ second challenge to his sentence for plain error, the Court rejected the argument that the prior conviction should not have been counted as "final" because the time for appealing this conviction extended to a date less than two months before Williams’ arrest for the instant offense. The Court noted that the focus is not on the passage of time, but on the degree of continued criminal activity. Here, Williams’ attempt to obtain two kilograms of cocaine, though prevented by the actions of law enforcement, occurred after the prior conviction became final, and was a sufficient degree of criminal activity to justify triggering a life imprisonment.

Chavers: Judgment, Not Mandate, Starts AEDPA period

In Chavers v. Sec. Dep’t of Corrections, No. 05-15163 (Oct. 31, 2006), the Court affirmed the denial of habeas relief to a Florida inmate whose petition it found to be time-barred under AEDPA’s one-year limitations period.
The Court rejected the argument that the one-year statute of limitations begins to run 90 days after a mandate issues from the final decision of a Florida appellate court on direct review of a conviction. [Note: Unlike Lawrence v. Florida, presently pending in the U.S. Supreme Court, which involves the AEDPA statute of limitations after collateral review in the State courts, Chavers’ case involves the limitations period after direct review in the State courts]. Instead, the 90-day period begins to run after the entry of judgment by a Florida appellate court. This latter date is the date on which the 90-day period commences for filing a certiorari petition in the United States Supreme Court. Accordingly, it is the date of the entry of the judgment, not the date of the issuance of the mandate, that commences the one-year statute of limitations. Using this latter date as the starting point, Chavers’ federal habeas petition was time-barred.

Alderman: "Lingering Doubt" Theory Not Deficient Performance

In Alderman v. Terry, No. 04-14595 (Oct. 30, 2006), the Court affirmed the denial of habeas relief to a Georgia death row inmate convicted of the 1974 murder of his wife.
The Court rejected Alderman’s argument that his counsel was ineffective in the penalty phase of his sentencing proceedings by failing to investigate and to present to the jury his social-history background.
The Court noted that counsel’s strategy was to rely on a "lingering doubt" as to culpability basis for avoiding a sentence of death. Further, counsel presented numerous character witnesses. The Court rejected Alderman’s argument that counsel misunderstood that the law would permit a further mitigating case based on life-history evidence. The Court pointed out that as a result of the character witnesses the jury heard about Alderman’s social-history background. Further, the over-arching "lingering-doubt" strategy was one that satisfied Alderman’s right to competent representation.
The Court further noted that Alderman did not suffer "prejudice" as a result of any deficiency in counsel’s representation.

Revolorio-Ramo: No Due Process Violation in Unintentional Destruction of Evidence

In U.S. v. Revolorios-Ramo, No. 03-14361 (Oct. 26, 2006), the Court rejected the argument that Due Process required the dismissal of an indictment for conspiracy to possess cocaine while on board a vessel, in violation of 46 U.S.C. app. § 1903, because the U.S. Navy destroyed, for unseaworthiness, the fishing vessel on which the defendants were apprehended off the coast of Guatemala, thereby destroying the exculpatory evidence that the vessel was merely a fishing vessel, and that the defendants did not intend to be involved in drug trafficking.
The Court noted that some evidence of hooks and bait aboard the vessel was presented at trial. Therefore, the question was whether this equipment was of genuine fishing quality. The potentially excuplatory evidence aboard the vessel would merely have bolstered the defendants’ defense. Further, the defendants had an opportunity to cross-examine the law enforcement officers about the nature of the fishing equipment.
In addition, the law enforcement agent did attempt to preserve evidence, though his photographs did a "singularly poor job." But his bad photos were not taken in bad faith. Thus, there was no evidence of "official animus." "In short, the government clearly attempted, albeit unsuccessfully and perhaps incompetently, to document the contents of a vessel deemed unseaworthy by the Coast Guard prior to destroying her." No Due Process violation occurred.

Sweet: Habeas Petition is Untimely

In Sweet v. Secretary, Dept’ of Corrections, No. 05-15199 (Oct. 23, 2006), the Court affirmed the denial of habeas relief to a Florida inmate sentenced to death for a 1990 murder.
The Court found that the federal habeas petition was untimely because Sweet’s most recent state post-conviction filing was itself untimely under state rules and therefore not "properly filed," and therefore did not toll the time period for filing for federal habeas relief. Citing Pace v.DiGuglielmo, 544 U.S. 408 (2005), the Court noted that a filing which has been held untimely by a state court is not properly filed within the meaning of the AEDPA’s time computation provisions.
The Court rejected Sweet’s equal protection argument. Sweet pointed out that even though the Supreme Court of Florida had denied him relief, it had addressed on the merits the claims of identically-situated inmates, untimeliness notwithstanding. Finding that Sweet failed to allege "invidious" discrimination, the Court rejected this claim.
The Court also rejected the argument that the State waived its untimeliness argument by failing to raise it in their initial response. The Court pointed out that the State raised untimeliness in a summary judgment motion filed 36 days after its response. Citing Day v. McDonough, 126 S.Ct. 1675 (2006), the Court reasoned that since a Magistrate Judge could sua sponte point out to the State the untimeliness of a habeas petition, it was necessarily unproblematic for the State to raise the objection on its own, 36 days after its initial response.

Grossman: No habeas relief for Florida death row inmate

In Grossman v. McDonough, No. 05-11150 (Oct. 16, 2006), the Court affirmed the denial of habeas relief to a Florida inmate sentenced to death for a 1984 murder.
The Court rejected Grossman’s habeas challenge based on the admission of a co-conspirator’s inculpatory confession. Though recognizing, as did the Florida courts, that the evidence should not have been admitted under Bruton and its progeny, the Court held that the error was harmless in light of the overwhelming evidence of guilt.
The Court also rejected Grossman’s Brady claim. The Court found that even if there had been improper withholding of evidence by the prosecution, no Brady violation occurred because there was no possibility that the outcome of the proceeding would have been different.
Finally, the Court rejected the argument that defense counsel was ineffective at the penalty phase. The Court found that the many "post-hoc" affidavits of potential witnesses did not demonstrate deficient performance. Even if performance was ineffective, prejudice did not result. The Court also found no "golden rule" violation by the prosecutor, finding that the prosecutor merely described the circumstances of the victim’s death – circumstances which were "plainly relevant to whether the murder was henious, atrocious, or cruel."

Osborne: Habeas Denied: Counsel Not Ineffective

In Osborne v. Terry, No. 04-16751 (Oct. 16, 2006), the Court affirmed the denial of habeas relief to a Georgia inmate sentenced to death for two 1990 murders.
The Court rejected claims that trial counsel was ineffective during the guilt phase for failing to put on exculpatory evidence regarding the manner in which the victims were killed. The Court noted that since the defendant confessed to the killings, much of the evidence regarding the killings would have been irrelevant, or not of sufficient significance to alter the outcome of the trial.
The Court also rejected claims that counsel was ineffective during the penalty phase. The Court noted that counsle was not ineffective for failing to put on evidence of Osborne’s use of drugs, when Osborne himself had denied any drug use to his attorney.
The Court also affirmed the state trial court finding that there was no evidence to support Osborne’s claim that his attorney failed convey to him a plea of life, on account of the attorney’s racial animosity toward Osborne. The Court affirmed the finding that the offer was conveyed, and declined by Osborne. Further, the claim was procedurally barred.

Matthews: Florida 3rd-Degree Burglary is "Violent Felony"

In U.S. v. Matthews, No. 05-13447 (Oct. 12, 2006), the Court resolved a question it recently left open in U.S. v. Day, 2006 WL 2739348, * 4 n. 4 (11th Cir. Sept. 27, 2006): whether a third-degree burglary under Florida law qualifies as a violent felony under the Armed Career Criminal Act because the offense involves "conduct that presents a serious potential risk of physical injury to another."
The Court held that third-degree Florida burglary does qualify as a violent felony, even though this offense can merely involve an intrusion upon the curtilage of a structure. The Court noted that Florida defined the term curtilage narrowly, to include only an enclosed area surrounding a structure. "Regardless of whether a burglar breaches the roofed portion of a structure, his unlicensed entry into the enclosed area surrounding that structure may bring him into close physical proximity with the same persons he might encounter were he to enter the structure." Just an attempt to commit burglary can qualify as a "violent felony," a Florida third-degree burglary can also so qualify.

Bradberry: Gang Affiliation Not Unduly Prejudicial

In U.S. v. Bradberry, No. 06-11757 (Oct. 11, 2006), the Court affirmed the conviction and sentence of a defendant convicted of possession of a firearm in a school zone, in violation of 18 U.S.C. § 922(q)(2)(A).
The Court rejected the argument that the admission of evidence of Bradberry’s gang affiliation was unduly prejudicial. The Court noted that evidence that the defendant and others were part of the same gang made the government’s theory of the case "more likely." The balancing of the prejudicial impact of the testimony against its probative value presented a close question. The district court’s decision thereforre fell within the ambit of harmless error.
The Court also rejected Bradberry’s challenge to the obstruction of justice enhancement. The Court noted that the enhancement was based on perjurious testiomny put on by Bradeberry’s witnesses. It was permissible to make Bradberry to suffer the consequences of suborned testimony he put on.http://www.ca11.uscourts.gov/opinions/ops/200611757.pdf

Hristov: Suitcase contents can be basis for sentence increase

In U.S. v. Hristov, No. 05-14122 (Oct. 4, 2006), the Court rejected the argument that a district court, for sentencing purposes, improperly relied on the quantity of drugs inside a suitcase, when the defendant claimed that he was given the suitcase not knowing what it contained.
The Court noted that the knowledge element of a violation of a criminal statute can be proved by demonstrating deliberate ignorance. Here, there was sufficient evidence of deliberate ignorance. Hristov was paid $5000 to transport a briefcase, in his own car, from Las Vegas NV to St. Petersburg FL. He received the briefcase from someone he had never previously met and delivered it to someone from whom he would later purchase cocaine. He admitted that transporting the briefcase made him nervous, and that cocaine could have been in the briefcase.
The Court also rejected the argument that the time frame of his conduct fell outside the period of the indictment. The Court noted that an open-ended start date can be alleged in an indictment, as was done here. Moreover, the defendant never objected at sentencing to the time period outlined in the PSR.

Eckhard: Upholding Obscene Phone calls conviction

In U.S. v. Eckhardt, No. 95-12211 (Oct. 4, 2006), the Court affirmed convictions of violating the Communications Decency Act, 47 U.S.C. § 223.
The Court rejected the argument that § 223(a)(1)(C)’s prohibition on "annoying, abusive, harassing, or threatening" telephone calls infringed the First Amendment and was unconstitutionally vague. Here, the "overarching purpose" of Eckhard 200 "sexually laced" calls in one year to a victim was "to harass and to frighten." This type of speech is not constitutionally protected. The statute was not too vague because "citizens need not guess what terms such as ‘harass’ and ‘intimidate’ mean."
The Court also rejected a sufficiency challenge to the convictions for violating § 223(a)(1)(A), which criminalizes "obscene" use of a telecommunications device. The Court concluded that Eckhardt’s phone calls were obscene. His "scant comments about union activity were incidental inclusions in his attempt to annoy and harass."
The Court rejected a Rule 404(b) challenge to the admission of phone calls made 10 years earlier than, and three years after, the charged phone calls. The Court noted that recordings of these calls were admissible to prove the identity of the caller (which Eckhard contested). Further, proof of a prior conviction of similar conduct was admissible to "show a criminal purpose."
The Court also rejected a challenge to improper comments during the prosecutor’s closing, finding them to limited to demonstrate a trial replete with errors. Moreover, the weight of the evidence would have led to a conviction regardless of the prosecutor’s statements.
The Court further rejected a challenge to the jury instruction which added the words "lewd, lascivious, filthy or indecent" to the definition of obscenity. Though recognizing that the words were not in the statute, and that Eckhardt correctly asked that they be removed from the jury instruction, the Court found that the words did not impair Eckhard’s chosen defense, which was that he did not make the alleged phone calls. The Court also rejected a challenge to the jury instruction based on their failure to charge proof of specific intent. The Court noted that Eckhardt had not challenged the instruction at trial. Further, the hundreds of obscene phone calls would allow any reasonable juror to find an intent to harass.
Turning to sentencing, the Court upheld the district court’s reliance on uncharged phone calls, which occurred 10 years earlier than the charged offenses, as a basis for enhancing the sentence. Noting the failure of counsel to object at sentencing, and the lack of precedent interpreting the Guidelines in this specific context, the Court held that any error would not be "plain."

Smith: Habeas untimely where no GA St. Ct review sought

In Pugh v. Smith, No. 05-12100 (Sept. 29, 2006), the Court held that a habeas petition was untimely. After a first direct appeal of his Georgia conviction, the defendant did not seek review of his Georgia conviction in the Georgia Supreme Court. Consequently, the "conclusion of direct review" – that is, the date on which the one-year period for filing a habeas petition began to run – occurred not at the conclusion of the 90-day period for filing a certiorari petition with the United States Supreme Court. Rather, since no U.S. Supreme Court review was available to Smith (because he never sought review in the Georgia Supreme Court), the period began to run 10 days after the adverse ruling of the Georgia Court of Appeals, that is, on the date after which he could no longer seek review of his conviction in the Georgia Supreme Court.
The Court also found no basis for "equitable tolling."

Machado: Untimely Request for Return of Forfeited Property

In U.S. v. Machado, No. 05-11420 (Oct. 2, 2006), the Court rejected a defendant’s appeal of a forfeiture order.
The defendant claimed that the district court lacked subject matter jurisdiction when it entered the forfeiture order, because it entered the order nearly one year after entering the judgment of conviction, in violation of Fed. R. Crim. P. 32(d)(2), which requires forfeiture orders to be "included" in the judgment. Dismissing this appeal, the Court pointed out it lacked jurisdiction to consider the issue, because the appeal was filed outside the time limits of Fed. R. App. P. 4.
The Court also rejected Machado’s appeal of the denial of his Fed. R. Crim. P. 41(g) motion for the return of property. Noting that a district court has equitable jurisdiction over an untimely 41(g) motion, the Court found that since Machado was seeking return of the fruits of his crime, it would have been inequitable to grant him relief. Further, the claim was time-barred, because it was brought more than six years, outside the time limit for suits against the government set forth at 28 U.S.C. § 2401(a).
Finally, the Court rejected Machado’s reliance on the All Writs Act, 28 U.S.C. § 1651(a). This law empowers courts to fashion remedies in extraordinary cases. But: "This is not an extraordinary case that merits use of extraordinary authority."

Day: No ACCA conviction where defendant did not plead guilty to the charged burglary

In U.S. v. Day, No. 05-15676 (Sept. 27, 2006), the Court held that the district court should not have relied on a prior Florida third-degree burglary conviction as a basis for sentencing the defendant as an armed career criminal, and vacated the sentence.
Three prior "violent felonies" qualify a defendant for sentencing as an armed career criminal. 18 U.S.C. § 924(e)(1). One of Day’s prior convictions arose out of a case where he was charged in Florida State court with second-degree burglary, but pled guilty only to a lesser offense, third-degree burglary, which could not have involved a dwelling and not have qualified as a violent felony. The guilty plea to third-degree burglary contained insufficient information to determine whether Day was convicted of burglarizing a structure or a conveyance. The district court relied on the charging document, which charged second-degree felony.
Reversing, the Court recognized that charging documents are among the materials a court can ordinarily look to in determining whether a prior offense is the type of burglary that qualifies as a violent felony. Here, however, reliance on the charging document was improper, because the defendant pled guilty to a different offense than the one with which he was charged.

Davis: No habeas relief on Giglio/Brady

In Davis v. Terry, No. 04-13371 (Sept. 26, 2006), the Court affirmed the denial of habeas relief to a Georgia death row inmate.
The Court noted that it was reaching the merits of Davis’ challenges to the fairness of his trial, even though he procedurally defaulted these issues by failing to raise them on direct appeal of his state sentence, because Davis accompanied these arguments with a claim of actual innocence.
The Court rejected the Giglio claim that the prosecution presented knowingly false testimony. The Court noted that there was no evidence the State knew the evidence was false when it presented it.
The Court also rejected a Brady claim that the State failed to disclose exculpatory material during trial. The Court noted that the exculpatory evidence was revealed during the trial, and that defense counsel declined to recall a witness to the stand to go over this evidence. Thus, the defense was aware of the evidence, and the failure initially to advise the defense of the evidence was not material because the defense elected not to recall the witness.
Finally, the Court rejected an ineffective assistance of counsel claim, pointing out that the defense presented a viable defense of mistaken identity. Moreover, none of the testimony which Davis asserted should have been elicited would have changed the outcome of the trial.

Arevalo-Juarez: Fast-Track Disparity Not Unwarranted

In U.S. v. Arevalo-Suarez, No. 05-16313 (Sept. 15, 2006), the Court, on a government sentencing appeal, reversed the district court’s grant of a four-level sentence reduction based on the sentencing disparity resulting from the unavailability of a fast-track sentencing departure in the Southern District of Georgia. The fast-track program makes defendants who plea guilty early eligible for a sentence reduction, but only in districts designated by the Attorney General.
Citing U.S. v. Anaya-Castro, 455 F.3d 1249 (11th Cir. 2006), which held that a district court was not required to depart based on the disparity caused by the fast-track program, and citing caselaw in other circuits, the Court held that the fast-track program disparity was not "unwarranted" because it was adopted pursuant to Congressional authorization. Hence, the district court erred in relying on the disparity as a basis for its sentence reduction under 18 U.S.C. § 3553(a).

Owens: No error in higher sentence than co-conspirators

In U.S. v. Owens, No. 06-11448 (Sept. 15, 2006), the Court rejected the argument that a sentence was unreasonable because the district court failed to consider the sentences given to other defendants in the case.
The Court noted that the district court had stated that it thought the sentence was reasonable and it had consulted the 18 U.S.C. § 3553(a) factors. The district court acknowledged that Owens’s sentence was longer than some of others arising out of the same fraudulent scheme, but specifically found that other § 3553(a) factors outweighed this problem. The Court found the sentence reasonable, noting that Owens’s cooperation, while "admirable," did not "undo the harm he had caused."

Wilks: Roper does not affect treatment of youthful offenses

In U.S. v. Wilks, No. 05-14262 (Sept. 13, 2006), the Court affirmed a 212-month sentence imposed on a defendant convicted of drug-trafficking.
The Court rejected the argument that reliance on youthful offenders convictions to qualify for enhanced sentences under the career offender guideline and the Armed Career Criminal Act violated Roper v. Simmons, 543 U.S. 551 (2005), which held that the Eighth Amendment prohibits the execution of individuals who were under 18 at the time the offense was committed.
The Court noted that its precedent since Roper had affirmed reliance on youthful offenders convictions. Further, Roper "does not deal specifically – or even tangentially – with sentence enhancement."
The Court also rejected the argument that several youthful offender convictions should have deemed "related" because Wilks was sentenced for them on the same day in State court. The Court noted that offenses are considered separate and not related if there is an intervening arrest. Here, there was an intervening arrest, and the fact that Wilks’ State sentencing for multiple offenses occurred at the same time did not alter the analysis.
Finally, the Court rejected the challenge to the sentence as "unreasonable," pointing out that the sentence was fifty months shorter than the low-end of the Guideline range.