Evans: Brain Damage evidence is basis for habeas relief

In Evans v. Sec. Dep’t of Corrections, No. 10-14920 (May 23, 2012) (2-1) (Edmondson, J., dissenting), the Court reversed the denial of habeas relief to a Florida inmate sentenced to death for a 1998 murder.
The Court found that the Florida Supreme Court had unreasonably discounted the mitigation evidence that Evans’ trial counsel failed to present at his sentencing hearing. The evidence would have established Evans’ brain damage dating from an accident he had as a child. The Court pointed out that in Porter v. McCollum, the Supreme Court held that unpresented mitigating evidence must be considered by a reviewing court from the point of the view of the jury that never heard the evidence. The Florida Supreme Court failed to consider the possibility that competent counsel could have used the brain damage evidence in mitigation.

Perez: Lafler did not "break new ground"

In In Re Michael Perez, No. 12-12240 (May 25, 2012), the Court held that a § 2255 petitioner was not entitled to raise a claim of ineffective assistance of counsel in a second or successive § 2255 motion. Perez claimed that Missouri v. Frye and Lafler v. Cooper were “new rules of constitutional law” upon which he could rely in a second or successive § 2255 petition. The Court, however, found that these cases did not “break new ground,” because in Hill v. Lockhart the Supreme Court had already extended Strickland’s test for ineffective assistance to the plea bargaining process. In addition, the fact that the Supreme Court decided these two cases on habeas petitions eliminated any doubt as to whether they broke new ground, because, under AEDPA, habeas petitioners must show a decision contrary to “clearly established law” in order to prevail.

Schneider: Florida False Imprisonment is Violent Felony

In U.S. v. Schneider, No. 10-15863 (May 24, 2012), the Court held that a prior conviction for false imprisonment in violation of Fla. Stat. § 787.02(1)(a), qualifies as a violent felony for purposes of the Armed Career Criminal Act.



The Court rejected the government’s argument that the defendant waived the issue by failing to object to the underlying facts set forth in the PSI. The Court noted that while Schneider’s objection to the factual paragraph of the PSI focused on a legal argument rather than setting out any factual dispute, he did state that false imprisonment includes “nonviolent” conduct. In addition, the premise of the argument at sentencing was that the factual allegations did not suffice to support the ACCA enhancement.



The Court noted that in false imprisonment cases in which a defendant “secretly” – i.e., by ruse, abducted another person, a risk of injury can result once the victim might try to resist or escape. The Court analogized the risk to the risk of injury caused by a vehicular flight, which the Supreme Court found to be a violent felony in Sykes v. U.S. The Court rejected the defendant’s analogy to a perpetrator’s failure to report for scheduled weekend confinement, which Chambers v. U.S. held did not qualify as a violent felony.

Zuniga-Artega: Aggravated Identity Theft Can Involve Dead Person

In U.S. v. Zuniga-Arteaga, No. 11-673 (May 21, 2012), the Court held that aggravated identity theft in violation of 18 U.S.C. § 1028A(a)(1) can involve the identity of a person who is no longer living.
The statute makes it a crime to use a "means of identification of another person." The Court noted that the word "person" had no "definitive legal meaning." But the context of the use of the word indicated that the statute did not mean to distinguish between the living and the dead. The statute also criminalized use of a "false identification document," conduct that can involve a dead person. In addition, use of the identification of a dead person "has very real consequences for the living, such as the beneficiaries of the decedents."

Kaley: Defendant may not try case twice

In U.S. v. Kaley, No. 10-15048 (April 26, 2012), the Court held that, in a pretrial hearing on whether a post-indictment restraining order on a defendant’s disposition of assets encroaches on the defendant’s Sixth Amendment right to pay for his counsel of choice, the defendant may not challenge whether the conduct alleged in the indictment supports probable cause.
The Court found that the "paramount importance" of not forcing the government to "tip its hand" prematurely about the strength of its case outweighed the defendant’s constitutionally-protected right to counsel.
The Court recognized that it is Due Process that requires a hearing on the permissibility of a restraint on a defendant’s assets, as Congress neglected to provide for such a hearing by statute when it empowered the government to restrain a defendant’s assets pre-trial. To determine the requirements of Due Process, the Court cited the legislative history of the statute that neglected to provide for a hearing.
The Court explained that "defendants are not entitled to try their entire case twice," and pointed out that, even without counsel of choice that a defendant could pay for, at trial "the defendant will have counsel (appointed, if necessary)."

Stephens: Pleading guilty in mitigation not ineffective

In Stephens v. Sec. Fla. Dep’t of Corrections, No. 11-11727 (May 1, 2012), the Court denied habeas relief to a Florida inmate sentenced to death for a 1997 murder.
The Court rejected the argument that a death sentence for felony murder violated the Eighth Amendment prohibition on cruel and unusual punishment, pointing out that the jury was properly instructed to find the requisite mens rea.
The Court rejected ineffective assistance of counsel claims, including a claim that counsel was deficient at the penalty phase. The Court noted that counsel made a strategic decision to present Stephens as a "good guy," and that other evidence would have been adverse to this defense. The Court also did not fault counsel for convincing the defendant to plead guilty to certain charged to show mitigation at the penalty phase.

Register: Grouping does not require common scheme

In U.S. v. Register, No. 11-12773 (May 4, 2012), the Court held that the sentencing court erroneously failed to group all of Register’s tax related offenses into a single group pursuant to U.S.S.G. § 3D1.2(b) or (d).
The Court found that the offenses, though subject to two different Guidelines, were "of the same general type" and "closely related." The Court also noted the "substantial [factual] overlap" among the offenses. The Court noted that there is no requirement for grouping that counts involve a common criminal objective or a common scheme; the counts can arise from various schemes.

Mansfield: Miranda error Harmless under AEDPA

In Mansfield v. Sec. Dep’t of Corrections, No. 09-12312 (May 9, 2012),
the Court denied habeas relief to a Florida inmate sentenced to death for a 1995 murder.
At trial, a videotaped confession obtained in violation of Miranda was erroneously admitted. The Florida state courts concluded that the error was harmless.
The Court, viewing the harmless error "through the [deferential] lens of AEDPA," credited the Florida Supreme Court’s reliance on evidence in support of Mansfield’s conviction. The Court noted evidence that Mansfield went swimming shortly after committing the murder in order to wash off any blood, a mark on the victim left by Mansfield’s ring, and evidence linking Mansfield to the crime scene. This and other "substantial" evidence made the erroneous admission of the videotape harmless.

Peruz-Peruz: No safety valve for Title 46 offenses

In U.S. v. Pertuz-Pertuz, No. 10-15800 (May 11, 2012), the Court held that a defendant convicted of conspiring to possess cocaine while aboard a vessel subject to the jurisdiction of the United States, in violation of 46 U.S.C. § 70503, and penalized pursuant to 21 U.S.C. § 960, could not benefit from a safety valve sentence below the mandatory minimum sentence.
The Court noted that the safety valve statute, 18 U.S.C. § 3553(f), lists "offenses" for which a safety valve reduction may be available, and no offense in Title 46 is on the list. The Court rejected the argument that the defendant could qualify for safety-valve because his offense cross-referenced the punishment set forth a 21 U.S.C. § 960. The Court pointed out that the safety valve statute refers to offenses, not sentences.

Cook: No Miranda warnings for confession to father

In Cook v. Warden, No. 10-13334 (April 20, 2012),
the Court affirmed the denial of habeas relief, finding Cook’s claims of ineffective assistance of counsel to be unsupported by the record. The Court also rejected the argument that the petitioner’s confession to his father, an FBI agent, should have been suppressed, because he was not given Miranda warnings. "[N]o Miranda violation occurs when a suspect confesses to a family member who is employed in law enforcement, even when the family member – acting in his private capacity – urges the suspect to speak."

Hutchinson: Negligent habeas lawyers does not support equitable tolling

In Hutchinson v. Florida, No. 10-14978 (April 19, 2012), the Court held that a habeas petition was time-barred by AEDPA, and declined to apply the equitable tolling doctrine in the favor of a Florida death row inmate.
Despite entreaties from Hutchinson that they were going to miss the deadline for filing his state habeas petition within the one-year federal deadline that would toll the federal statute of limitations, Hutchinson’s lawyer believed that they had more time than they in fact did, and filed the state petition after the one-year deadline had lapsed. As a result, after the state courts denied habeas relief, Hutchinson’s federal petition was untimely. Hutchinson invoked equitable tolling, but the Court held that missing the statute of limitations could not be excused based on counsel’s negligence, pointing out that Hutchinson, though he protested that his state petition was being filed too late for federal purposes, never filed a federal habeas petition or took any action to preserve his federal petition for nearly four years. Consequently, he did not pursue his rights diligently.
Concurring, Judge Barkett argued that in death row cases, one should not adhere to the principle that an inmate must bear the consequences of his lawyer’s negligence.

Noriega: Remanding for suppression factfinding

In U.S. v. Noriega, No. 10-12480 (April 11, 2012),
http://www.ca11.uscourts.gov/opinions/ops/201012480.op2.pdf
the Court remanded a case to the trial court for additional factfindings regarding a suppression issue.
Alabama police, acting on a tip, obtained a warrant to search a house, and found a marijuana growing operation at this location. The police then arrived at a second home the tip had mentioned, and, without a search warrant, conducted a protective sweep of the property, and found evidence of a second growing operation. The police then obtained a warrant.
Before trial, the defendants moved to suppress the items found in the second search, arguing that the protective sweep was conducted without the requisite search warrant. The Court noted that even if the protective sweep was not permitted, the evidence could have been properly admitted if was obtained from an "independent source." Relying on this doctrine required excising from the second search warrant affidavit any information gained during the arguably illegal initial entry, and determining whether the remaining information sufficed to support a probable cause finding. If the police would have sought a warrant anyway, without regard to what they discovered during their protective sweep, the district court did not err in denying the motion to suppress. Because the district court made no finding on this issue, and it is its role, not the Court of Appeals’, to find facts, the Court remanded the case for this factfinding. If the police would not have sought the warrant anyway, the Court would decide whether the protective sweep violated the Fourth Amendment.
The panel retained jurisdiction over the appeal pending the district court’s factfinding.

Tobin: Internet Drug Distribution Convictions Affirmed

In U.S. v. Tobin, No. 09-13944 (April 12, 2012),
http://www.ca11.uscourts.gov/opinions/ops/200913944.pdf
the Court affirmed the convictions of five defendants convicted of distributing controlled substances over the internet, and vacated one defendant’s sentence.
The Court rejected the argument that the Controlled Substances Act was ambiguous, and unconstitutionally vague, with regard to the criminalization of distribution over the internet. The Court found that the CSA applied "regardless of the channel of distribution." The Court also rejected the argument that it was ambiguous whether the CSA incorporated state law standards requiring in-person prescriptions.
The Court rejected the argument that the defendants were erroneously precluded from arguing that they were unaware that their conduct violated the law. The Court explained that it is not necessary for conduct to be "willful" to violate the CSA; it is sufficient for a person to do so "knowingly."
The Court found no error in the district court’s rejection of the defense that a defendant subjectively believed that he was acting in accordance with professional standards, pointing out that this issue is decided from an objective, not subjective, viewpoint.
The Court found that the district erred in ruling that the conspiracy statute, 21 U.S.C. § 846, did not require a showing of a "willful" state of mind. However, these rulings had no effect on one defendant who did not identify any evidence that he would have presented in support of his "good-faith" defense, and on another who took the stand in his defense, and whom the jury therefore might have disbelieved on this basis alone.
Citing its narrow reading in Demarest of the Supreme Court’s fractured decision in Santos, the Court rejected the argument that, for purposes of the money-laundering statute, "proceeds" should have been defined to the jury as "profits." The Court read the money-laundering statute to refer to "profits" only when an illegal gambling business is involved.
The Court rejected one defendant’s argument that the district court should have granted a continuance when his counsel moved to withdraw six days before trial. The Court noted that the district court informed the defendant that new counsel could be appointed for him, and the defendant elected, knowingly, to proceed pro se.
The Court found no reversible error arising out of letters that the jury received during the case, from unknown sources, regarding the case. The district court examined jurors about one letter, and properly admonished the jury about not relying on extrinsic evidence.
The Court agreed with one defendant that in closing argument, a prosecutor argued facts that were not in evidence when it described a witness’s testimony, but found that the misstatement had not prejudiced the defendant.
The Court noted that on two occasions the district court addressed the issue of plea negotiations. The district court explicitly indicated that it would like the defendants to begin to engage in plea discussions. This violated the "categorical mandate" of Fed. R. Crim. P. 11, which prohibits such involvement. Even "innocuous" comments can violate Rule 11. "[A] district court’s suggestion that a defendant look into pleading guilty may give the impression that the district court has already taken a position regarding the question of guilty and . . . this can undermine the defendant’s confidence in the neutrality of the tribunal." The Court decided that a new trial was not the proper remedy, but ordered a new sentencing before a different judge.
The Court rejected challenges to the sentences, pointing that a district court may rely on acquitted conduct as a basis for punishment, and finding that defendants had not shown unwarranted sentencing disparities.

Chitwood: Georgia False Imprisonment qualifies as "crime of violence"

In U.S. v. Chitwood, No. 11-12054 (April 5, 2012),
http://www.ca11.uscourts.gov/opinions/ops/201112054.pdf
the Court held that the Georgia offense of false imprisonment qualified as a crime of violence for purposes of "career offender" treatment under U.S.S.G. § 4B1.1.
The Court recognized that the use or threat of physical force is not an element of Georgia false imprisonment. Consequently, the offense did not qualify under the "elements" test of the career offender guidelines. However, the offense did qualify under the "residual clause."
The Court pointed out that in Sykes v. U.S., 131 S.Ct. 2267 (2011), the Supreme Court had retreated from its statement in Begay v. U.S., 553 U.S. 137 (2008) that conduct must be "purposeful, violent and aggressive" in order to qualify under the residual clause. Sykes limited this inquiry to strict liability-type offenses. Offenses that are not strict liability, negligence or recklessness crimes qualify under the residual clause if they categorically pose a serious potential risk of physical injury that is similar to the risks of physical injury posed one of the crimes enumerated in the guideline.
Georgia cases make clear that false imprisonment ordinarily creates risks of physical injury to another similar to the risks of burglary, an enumerated offense. Arresting, confining, or detaining someone against his or her will presents a risk of serious physical injury similar to burglary.
The Court noted that statistical evidence is not required to prove the risk of injury. "Here, being without the benefit of empirical evidence, we rely on our common sense."

Rosales-Bruno: Florida "False Imprisonment" not a "crime of violence"

In U.S. v. Rosales-Bruno, No. 11-14293 (April 6, 2012), the Court held that the Florida offense of false imprisonment did not qualify as a "crime of violence" for purposes of the 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii).
The Court noted that "where the statutory definition of the prior offense encompasses both violent and nonviolent conduct, we look [to] whether the prior conviction falls under a particular statutory phrase that qualifies it as a ‘crime of violence.’" Looking to Florida caselaw interpreting the "false imprisonment" statute, the Court noted that the offense "can be committed without employing the type of ‘physical force’ contemplated in the Guidelines." Not all false imprisonments involve the use or threat of physical force.
Turning to the evidence regarding the offense, the Court rejected the government argument that it could rely on an arrest affidavit. The Court explained that this is not the type of document that can be relied on, citing Shepard v. U.S., 544 U.S. 12 (2005).
The Court also rejected the government’s argument that defense counsel had not objected to facts recited in a paragraph of the PSR with the requisite specificity. Though recognizing that "vague assertions of inaccuracies" are insufficient to preserve an objection, the Court found that the defense had adequately objected when the PSR Addendum stated: "The defendant also objects to paragraph 30 which contains the circumstances of the false imprisonment case."
Finally, the Court rejected the government’s argument that viewing all of the charges in the information together, one could draw an inference that the false imprisonment was violent. Citing Shepard, the Court noted the "dubious merit" of this approach, and rejected it because the other charges were non-violent.

Lebowitz: Child pornography production sentence affirmed

In U.S. v. Lebowitz, No. 10-13340 (April 5, 2012),
the Court affirmed convictions for producing child pornography, and affirmed a 320 months’ sentence.
The Court rejected the argument that a law enforcement agent violated Lebowitz’ Fourth Amendment rights when, after arresting Lebowitz at the residence of a minor that he had planned to meet through internet exchanges that mentioned oral stimulation and “an adventure,” she searched Lebowitz’ car without a warrant. The Court found that the good faith exception to the exclusionary rule applied, because the investigator relied on the Court’s precedent, which until recently allowed a search incident to a recent occupant’s arrest regardless of the occupant’s ability to access the passenger compartment.
Turning to sentencing, the Court rejected Lebowitz’ claim that his sentence was substantively unreasonable, noting: “Child sex crimes are among the most egregious and despicable of societal and criminal offenses.”

Keen: Sentencing Error to Group Fraud and Bribery

In U.S. v. Keen, No. 09-16027 (April 5, 2012), the Court affirmed all convictions arising out of bribery charges that stemmed from corruption in Dixie County, Florida, but vacated one sentence.
The Court rejected the argument that Keen did not qualify as an "agent" of Dixie County because he was not authorized to act with respect to the entity’s funds. The Court noted that such a narrowing reading of the term "agent" would only be needed to avoid an "absurd result." It sufficed that Keen was authorized to act on behalf of Dixie County.
The Court also rejected Keen’s statute of limitations challenge, pointing out that the government charged conduct within the limitations period, and that the limitations period could be measured from the date of Keen’s most recent bribery violation.
The Court recognized that it was a "serious error" for the prosecutor to introduce evidence of a prior conviction, but upheld the trial court’s decision not to grant a mistrial. The Court reminded the United States Attorney’s office of "the high level of conduct that has traditionally characterized [it]."
The Court rejected a claim of outrageous government conduct, pointing out that the district court gave the jury an entrapment instruction.
Turning to sentencing, the Court agreed with Keen that the sentencing court incorrectly grouped his fraud and bribery convictions. The Court rejected the government’s argument that Keen’s efforts to conceal his crime, or his violation of the "public trust," amounted to a continuation of the crime for grouping purposes. Because the incorrect grouping resulted in an erroneous six-level enhancement, the Court remanded for resentencing.

Reese: Ok to argue 'every woman's worst nightmare'

In Reese v. Sec., Fla. Dep’t of Corrections, No. 11-12178 (March 30, 2012), the Court denied habeas relief to a Florida inmate sentenced to death for a 1992 murder.
The Court rejected the argument that the prosecution engaged in improper closing argument when he argued that the manner of the killing was "every woman’s worst nightmare," suggested that the defendant would be released on parole absent a sentence of death, compared the defendant to a "cute little puppy" who grew up to be a "vicious dog," and urged the jury to show the defendant "the same pity" he showed the victim: "none."
The Court found no Supreme Court precedent that the Florida courts had applied unreasonably. In addition, even reviewing the prosecutor’s closing argument de novo, the Court found no improper closing. The Court found that the prosecutor "legitimately urged the jury to consider the victim’s experience" to determine whether the offense was "especially heinous." The prosecutor’s statement about the defendant’s eligibility for parole was a correct statement of the law. The "grew up into a vicious dog" comment was a proper rebuttal of defense witnesses who did not know the defendant as an adult. Reese’s counsel failed to object to the "same mercy" comment.

Price: Outcome would not have been different

In Price v. Allen, No. 09-11716 (March 30, 2012), the Court affirmed the denial of habeas relief to an Alabama death row inmate convicted of murder in1993.
The Court rejected Price’s argument that the Alabama courts erred in denying his request for a change of venue based on pretrial publicity regarding his case. The Court noted that the nine news reports upon which Price relied to show pretrial publicity were published more than a year before the trial, and did not contain a confession or any "blatantly prejudicial information."
The Court also rejected the claim that Price’s defense counsel had inadequately investigated the venue motion, finding no facts that counsel should have found.
Finally, the Court rejected the claim that counsel was ineffective at the sentencing phase, finding that the family information Price claimed should have been presented to the jury did not establish a reasonable probability that the outcome of the sentencing would have been different.

Lewis: No Fourth Amendment Violation

In U.S. v. Lewis, No. 10-13567 (March 23, 2012) (2-1) (Wilson, J., dissenting), on a government appeal of a district court granting a motion to suppress, the Court reversed, finding no Fourth Amendment violation.
http://www.ca11.uscourts.gov/opinions/ops/201013567.pdf
Orange County, Florida police officers entered the parking lot of a restaurant, in a high crime area. They observed four males standing in between two parked vehicles, "just hanging out." The officers approached the men and asked whether any of them were carrying guns. Two of the men responded affirmatively, one saying that a firearm was on his person, and another stating that a firearm was in a backpack in the trunk of the nearby vehicle. Two others (including the defendant Lewis) said nothing. The officers immediately drew their weapons and ordered all four men to sit down on the ground and show their hands. Lewis walked a few steps away from the other men. Lewis was ordered to slide over to the other three men. He complied. Lewis looked "extremely nervous." The officers examined the ground where Lewis was previously seated and saw a semi-automatic pistol underneath a vehicle. Lewis was charged with unlawful possession of this firearm.
The Court found that based on one of the four men’s admission that he was carrying a handgun, the officers had reasonable suspicion that this person was committing a crime under Florida law: carrying a concealed weapon. The Court found that it was reasonable under the circumstances to detain Lewis. The officers faced substantial, immediate danger when confronted with the known possession of the two firearms. The officers "were entitled to control the scene and exercise command over the situation."
Dissenting, Judge Wilson stated that the circumstances permitted a pat down for weapons of those suspected of criminal activity, but there were no "specific and articulable facts" that would give rise to the inference that Lewis was engaged in criminal activity.