In Philmore v. McNeil, No. 07-13637 (July 23, 2009), the Court affirmed the denial of habeas relief to a Florida inmate sentenced to death for a 1997 murder.
The Court rejected Philmore’s ineffective assistance of counsel claim. Philmore argued that his defense counsel in a bank robbery case was ineffective in allowingd him to speak to law enforcement. In his discussions, Philmore divulged information that incupalted him in a murder with which he had not (yet) been charged. The Court held that defense counsel in the bank robbery could not have been constitutionally deficient in the murder case, because Philmore had not been charged with murder, and no Sixth Amendment right had yet attached.
The Court also found no ineffectiveness in counsel’s failure to prevail on a Batson claim when a member of the jury panel was struck by the prosecution. The Court pointed out that counsel challenged the strike.
The Court found no ineffectiveness in failing to call an expert on Philmore’s mental impairment, as his testimony would have contradicted other defense experts.’
Finally, the Court noted that Philmore’s challenge to the state court’s failure to taking account of the mitigating evidence of mental disturbance was procedurally defaulted.
Friday, July 24, 2009
Thursday, July 23, 2009
Carroll: Atkins does not compel post-conviction hearing
In Carroll v. Sec. DOC, No. 08-14317 (July 17, 2009), the Court found no constitutional violation in a Florida state court’s denial of an evidentiary hearing, in post-conviction hearings, to a death row inmate who claimed his mental retardation exempted him from the death penalty.
The Court found no support for Carroll’s argument that the Supreme Court’s decision in Atkins v. Virginia, prohibiting the execution of the mentally retarded, compelled Florida state courts to grant an evidentiary hearing in post-conviction proceedings, particularly where three prior proceedings had considered his claim of mental retardation.
The Court also rejected Carroll’s argument that Atkins must be extended to the mentally ill, not just the mentally retarded. This would be a new rule of constitutional law, which are not created on habeas review.
The Court found no support for Carroll’s argument that the Supreme Court’s decision in Atkins v. Virginia, prohibiting the execution of the mentally retarded, compelled Florida state courts to grant an evidentiary hearing in post-conviction proceedings, particularly where three prior proceedings had considered his claim of mental retardation.
The Court also rejected Carroll’s argument that Atkins must be extended to the mentally ill, not just the mentally retarded. This would be a new rule of constitutional law, which are not created on habeas review.
Monday, July 13, 2009
Dasher: A piece of foolish advice
In Dasher v. Witt, No. 08-10363 (11th Cir. July 13, 2009), the Court granted habeas relief based on ineffective assistance of counsel
Dasher decided to reject a plea offer to be sentenced to 13 months, and opted to plead guilty to cocaine trafficking charges "straight up," that is, without any agreement, based on his attorney’s advice that he doubted the sentence would exceed 13 months, and might be less. Once the judge learned of Dasher’s criminal history, he imposed a 10-year sentence.
The Court held that counsel was not ineffective in failing to investigate Dasher’s criminal history. The record supported an implicit finding that counsel asked Dasher about his prior criminal record. Moreover, failure to undertake an independent investigation was not constitutionally ineffective when counsel relied on information apparently in the hands of the prosecutor.
However, it was "a piece of foolishness" to advise Dasher that if he pled "straight up" he would receive little more than 12 months. Counsel was aware of other felonies to which Dasher was pleading guilty to, around the same time. Nor was the bad advice cured by the judge’s advice to Dasher that he had "total discretion" to sentence him up to 30 years, because Dasher would not have been worried this possibility, given counsel’s advice. "Whether or not he had a lengthy prior criminal record, Dasher was clearly risking a sentence of substantially more than thirteen months, and there was certainly no reason to believe he would do better.
Because Dasher had already served all but five months of his sentence, the court modified the State sentence to time-served. "Our discretion to formulate such a remedy, without disturbing the judgment of conviction, derives from 28 U.S.C. § 2243, which authorizes federal habeas courts to ‘dispose of the matter as law and justice requires.’"
Dasher decided to reject a plea offer to be sentenced to 13 months, and opted to plead guilty to cocaine trafficking charges "straight up," that is, without any agreement, based on his attorney’s advice that he doubted the sentence would exceed 13 months, and might be less. Once the judge learned of Dasher’s criminal history, he imposed a 10-year sentence.
The Court held that counsel was not ineffective in failing to investigate Dasher’s criminal history. The record supported an implicit finding that counsel asked Dasher about his prior criminal record. Moreover, failure to undertake an independent investigation was not constitutionally ineffective when counsel relied on information apparently in the hands of the prosecutor.
However, it was "a piece of foolishness" to advise Dasher that if he pled "straight up" he would receive little more than 12 months. Counsel was aware of other felonies to which Dasher was pleading guilty to, around the same time. Nor was the bad advice cured by the judge’s advice to Dasher that he had "total discretion" to sentence him up to 30 years, because Dasher would not have been worried this possibility, given counsel’s advice. "Whether or not he had a lengthy prior criminal record, Dasher was clearly risking a sentence of substantially more than thirteen months, and there was certainly no reason to believe he would do better.
Because Dasher had already served all but five months of his sentence, the court modified the State sentence to time-served. "Our discretion to formulate such a remedy, without disturbing the judgment of conviction, derives from 28 U.S.C. § 2243, which authorizes federal habeas courts to ‘dispose of the matter as law and justice requires.’"
Friday, July 10, 2009
Land: Prosecutor Speculation in Closing Argument Error, but Not Reversible Error
In Land v. Allen, No. 08-15254 (July 10, 2009), the Court affirmed the denial of habeas relief to an Alabama inmate sentenced to death for murder.
The Court held that despite evidence that a statement was taken from Land by Alabama police while he was in a semi-fetal position, with his hands covering his face, the totality of the circumstances did not indicate that his statement was involuntary.
The Court recognized that the trial court erred when it instructed the jury that "I determine the voluntariness of the statement [given by Land to police]." However, in view of the remainder of the instructions, this instruction by itself did so infect the entire trial so as to violate due process.
The Court also recognized that the prosecutor, in a case where the facts were all circumstantial, made improper closing argument when he speculated about the words that Land exchanged with the victim before murdering her. While the Court did not "condone the prosecutor’s behavior," it found that this misconduct did not so infect the trial as to make the resulting conviction invalid.
Finally, the Court did not find ineffective assistance of counsel in the failure to put on mitigating evidence about Land’s upbringing, noting the strategic decision behind it.
The Court held that despite evidence that a statement was taken from Land by Alabama police while he was in a semi-fetal position, with his hands covering his face, the totality of the circumstances did not indicate that his statement was involuntary.
The Court recognized that the trial court erred when it instructed the jury that "I determine the voluntariness of the statement [given by Land to police]." However, in view of the remainder of the instructions, this instruction by itself did so infect the entire trial so as to violate due process.
The Court also recognized that the prosecutor, in a case where the facts were all circumstantial, made improper closing argument when he speculated about the words that Land exchanged with the victim before murdering her. While the Court did not "condone the prosecutor’s behavior," it found that this misconduct did not so infect the trial as to make the resulting conviction invalid.
Finally, the Court did not find ineffective assistance of counsel in the failure to put on mitigating evidence about Land’s upbringing, noting the strategic decision behind it.
Thursday, July 09, 2009
Goings: Ok for Georgia police to chase into Florida unauthorized
In U.S. v. Goings, No. 08-15705 (July 7, 2009), the Court, citing the Supreme Court’s recent decision in Virginia v. Moore, 128 S.Ct. 1598 (2008) (no Fourth Amendment violation when police officer makes an arrest prohibited by state law but based on probable cause), held that no Fourth Amendment violation occurred when Georgia police, in a hot pursuit car chase, crossed into Florida without authorization and apprehended a defendant. The Court noted that it was undisputed that the Georgia police had probable cause to arrest Goings. It was therefore irrelevant whether the chase into Florida was authorized by Florida law.
Wednesday, July 08, 2009
Valencia-Trujillo: No Extradition Treaty, No Standing
In U.S. v. Valencia-Trujillo, No. 07-10524 (July 7, 2009), the Court affirmed the conviction and sentence of a defendant extradited from Colombia for cocaine trafficking.
The Court rejected the defendant’s "rule of specialty" argument, which claimed that he had been prosecuted in the United States for crimes outside the scope of Colombia’s extradition. The Court found that the defendant lacked "standing" to make this argument, because standing depended on the text of an extradition treaty, and the defendant was not extradited under an extradition treaty, but merely pursuant to an "extradition agreement."
The Court also rejected the argument that the jury convicted Valencia-Trujillo of predicate acts for a CCE conspiracy that were not charged in the indictment. The original indictment included "including, but not limited to" language with respect to the predicate acts, language which was broad enough to cover the predicate acts which were later added at trial.
The Court also rejected the defendant’s Franks challenge to the validity of the affidavit used by the FBI to support his extradition from Colombia. The Court found that the Fourth Amendment does not apply to improper seizures in Colombia.
Finally, the Court found no Batson violation in the government’s striking of the only Colombian-American member of the venire, noting that the person might fear retaliation against his family in the event of a guilty verdict, even though the family lived in Bogota and the defendant was from Cali.
The Court rejected the defendant’s "rule of specialty" argument, which claimed that he had been prosecuted in the United States for crimes outside the scope of Colombia’s extradition. The Court found that the defendant lacked "standing" to make this argument, because standing depended on the text of an extradition treaty, and the defendant was not extradited under an extradition treaty, but merely pursuant to an "extradition agreement."
The Court also rejected the argument that the jury convicted Valencia-Trujillo of predicate acts for a CCE conspiracy that were not charged in the indictment. The original indictment included "including, but not limited to" language with respect to the predicate acts, language which was broad enough to cover the predicate acts which were later added at trial.
The Court also rejected the defendant’s Franks challenge to the validity of the affidavit used by the FBI to support his extradition from Colombia. The Court found that the Fourth Amendment does not apply to improper seizures in Colombia.
Finally, the Court found no Batson violation in the government’s striking of the only Colombian-American member of the venire, noting that the person might fear retaliation against his family in the event of a guilty verdict, even though the family lived in Bogota and the defendant was from Cali.
Thursday, July 02, 2009
Moran: No Notice Required Pre-Sentencing for Supervised Release Conditions
In U.S. v. Moran, No. 08-16987 (July 1, 2009), the Court found no error in the sentencing court’s imposition, without prior notice in advance of sentencing, of special conditions of supervised release to address a defendant’s proclivity to sexual misconduct.
The Court reasoned that supervised release, by its nature "comes with conditions." Based on his criminal history, which involved allegations of sexual misconduct, Moran knew that this would come up at this sentencing – and he did not request a continuance.
The Court also upheld the conditions imposed. The requirement to participate in a mental health program for sex offenders was justified by Moran’s documented history of sex-related offenses. Such a condition could be imposed even though it was unrelated to Moran’s firearm possession conviction. The condition was justified by Moran’s prior failure to register as a sex offender. Further it was proper to require Moran to register as a sex offender, given the new requirements of the Sex Offender Registration and Notification Act. The Court also upheld the restriction on Moran’s access to the internet.
The Court reasoned that supervised release, by its nature "comes with conditions." Based on his criminal history, which involved allegations of sexual misconduct, Moran knew that this would come up at this sentencing – and he did not request a continuance.
The Court also upheld the conditions imposed. The requirement to participate in a mental health program for sex offenders was justified by Moran’s documented history of sex-related offenses. Such a condition could be imposed even though it was unrelated to Moran’s firearm possession conviction. The condition was justified by Moran’s prior failure to register as a sex offender. Further it was proper to require Moran to register as a sex offender, given the new requirements of the Sex Offender Registration and Notification Act. The Court also upheld the restriction on Moran’s access to the internet.
Thomas: Law of the case doctrine does not preclude certain 2255 issues
In Thomas v. U.S., No. 06-15651 (June 30, 2009), the Court held that the "law of the case" doctrine did not preclude a federal inmate, in a § 2255 proceeding, from raising a claim of (1) ineffective assistance of counsel, and (2) infirmity of a prior state convictions which called into question his "career offender" status.
The Court noted that the "law of the case" doctrine only precludes relitigation of issues the were decided explicitly, or by necessary implication, in a prior appeal. The doctrine does not preclude consideration of matters that could have been, but were not, resolved in earlier proceedings.
Thomas had lost a prior appeal of his conviction and sentence, after his counsel filed an Anders brief and he filed a pro se brief. However, the ineffective assistance issue was not raised on direct appeal. Similarly, the invalid state court conviction was not presented on appeal, neither in the Anders brief nor in the pro se brief. Consequently, these two issues were not precluded from § 2255 consideration.
The Court noted that the "law of the case" doctrine only precludes relitigation of issues the were decided explicitly, or by necessary implication, in a prior appeal. The doctrine does not preclude consideration of matters that could have been, but were not, resolved in earlier proceedings.
Thomas had lost a prior appeal of his conviction and sentence, after his counsel filed an Anders brief and he filed a pro se brief. However, the ineffective assistance issue was not raised on direct appeal. Similarly, the invalid state court conviction was not presented on appeal, neither in the Anders brief nor in the pro se brief. Consequently, these two issues were not precluded from § 2255 consideration.
Tagg: Pipe Bombs Not Protected by Second Amendment
In U.S. v. Tagg, No 08-16860 (June 30, 2009), the Court affirmed the conviction of a defendant charged with aiding and abetting in the possession of a pipe-bomb.
The Court rejected Tagg’s challenge to the sufficiency of the evidence, pointing out that his conduct in helping persons purchase gunpowder, watching them build pipe bombs in his garage, and telling them to go light the bombs somewhere else, sufficed.
The Court also rejected Tagg’s argument that the Second Amendment protected his activity. Unlike handguns "pipe bombs are not typically possessed by law-abiding citizens for lawful purposes."
The Court rejected Tagg’s challenge to the sufficiency of the evidence, pointing out that his conduct in helping persons purchase gunpowder, watching them build pipe bombs in his garage, and telling them to go light the bombs somewhere else, sufficed.
The Court also rejected Tagg’s argument that the Second Amendment protected his activity. Unlike handguns "pipe bombs are not typically possessed by law-abiding citizens for lawful purposes."
Gari: I-123 Immigration forms if Confrontation Clause error, harmless error
In U.S. v. Gari, No. 08-10014 (June 30, 2009), the Court affirmed certain Cuban alien-smuggling convictions, reversed others, and remanded for resentencing.
The Court found sufficient evidence to convict the defendants of several counts of alien smuggling. However, as to one alien smuggling count, the evidence established that she had prior authorization to enter the United States through a designated port of entry. Accordingly, the convictions of the defendants for smuggling this alien (including the defendant who did not raise the issue on appeal) were set aside, as the statute required the government to prove that she entered without prior authorization.
The defendants challenged the government’s reliance on the aliens’ I-213 Forms as violative of the Confrontation Clause, because the defendants did not have an opportunity to cross- examine the aliens whose responses were recorded on these forms. Declining to reach the issue on the merits, the Court held that any error in admitting the forms was harmless, in view of the other evidence.
The Court rejected a defendant’s Rule 404(b) challenge to the admission of prior bad act, because the alien smuggling episode in question was "not very remote in time from the date of the charged conduct."
The Court disagreed with the government that one defendant had waived his motion to sever, pointing out that the district court had "implicitly denied" it, but agreed with the government that the denial of severance was not an abuse of discretion, pointing out that the court gave the jury a limiting instruction as to how the evidence should be considered on a defendant-specific basis.
In light of its vacatur of two convictions, the Court remanded the entire case for resentencing.
The Court found sufficient evidence to convict the defendants of several counts of alien smuggling. However, as to one alien smuggling count, the evidence established that she had prior authorization to enter the United States through a designated port of entry. Accordingly, the convictions of the defendants for smuggling this alien (including the defendant who did not raise the issue on appeal) were set aside, as the statute required the government to prove that she entered without prior authorization.
The defendants challenged the government’s reliance on the aliens’ I-213 Forms as violative of the Confrontation Clause, because the defendants did not have an opportunity to cross- examine the aliens whose responses were recorded on these forms. Declining to reach the issue on the merits, the Court held that any error in admitting the forms was harmless, in view of the other evidence.
The Court rejected a defendant’s Rule 404(b) challenge to the admission of prior bad act, because the alien smuggling episode in question was "not very remote in time from the date of the charged conduct."
The Court disagreed with the government that one defendant had waived his motion to sever, pointing out that the district court had "implicitly denied" it, but agreed with the government that the denial of severance was not an abuse of discretion, pointing out that the court gave the jury a limiting instruction as to how the evidence should be considered on a defendant-specific basis.
In light of its vacatur of two convictions, the Court remanded the entire case for resentencing.
Wednesday, July 01, 2009
Doorball: State waiver dooms federal habeas petition
In Doorbal v. Dept. of Corrections, No. 08-15869 (June 29, 2009), the Court affirmed the denial of habeas relief to a Florida inmate sentenced to death for 1994 and 1995 murders.
The Court found that the Florida Supreme Court had earlier ruled that Doorbal’s claim of ineffective assistance of counsel was waived because he failed to present the issue on appeal in the Florida state courts. Doorbal could not overcome this procedural default in federal courts, because it was an independent and adequate state ground for denying federal review.
The Court found that the Florida Supreme Court had earlier ruled that Doorbal’s claim of ineffective assistance of counsel was waived because he failed to present the issue on appeal in the Florida state courts. Doorbal could not overcome this procedural default in federal courts, because it was an independent and adequate state ground for denying federal review.
Wilk: Self defense not available when defendant had reason to know law enforcement was entering his home
In U.S. v. Wilk, No. 07-14176 (June 29, 2009), the Court affirmed the conviction and sentence of a defendant charged with killing a state law enforcement officer assisting in a federal investigation.
Law enforcement officers, suspecting Wilk of possession of impeding a federal investigation, forcibly entered Wilk’s home. Wilk shot and killed one officer. His defense at trial was that he feared being attacked because he previously been a victim of anti-gay vandalism, suffered from neurological disorders, and he acted in self-defense.
The Court rejected Wilk’s challenge to the exclusion of evidence that the victim was on steroids at the time of the shooting. The Court agreed with the district court that this fact was ultimately irrelevant. The Court reached the same conclusion with respect to the exclusion of evidence that the police failed to follow proper police procedure during entry into Wilk’s residence, noting that the self-defense claim rested on Wilk’s state of mind, not the officer’s procedures.
The Court also rejected the argument that Wilk’s medical records should have been excluded, pointing out that Wilk relied on his mental status in his defense, and that the confidentiality of his records was limited if release was "required by law" – as it was here, when the grand jury subpoenaed the records.
The Court also found no error in the self-defense jury instruction. The instruction stated that, to overcome a self-defense claim, the government need oly show that the defendant "had reason to know" that the victims were law enforcement officers engaged in the performance of their duties. Wilk argued that this weakened the self-defense claim in relation to Circuit precedent. The Court rejected this argument, noting that only in "extraordinary" cases would the government be required to prove that the defendant "knew of" the victim’s status.
Law enforcement officers, suspecting Wilk of possession of impeding a federal investigation, forcibly entered Wilk’s home. Wilk shot and killed one officer. His defense at trial was that he feared being attacked because he previously been a victim of anti-gay vandalism, suffered from neurological disorders, and he acted in self-defense.
The Court rejected Wilk’s challenge to the exclusion of evidence that the victim was on steroids at the time of the shooting. The Court agreed with the district court that this fact was ultimately irrelevant. The Court reached the same conclusion with respect to the exclusion of evidence that the police failed to follow proper police procedure during entry into Wilk’s residence, noting that the self-defense claim rested on Wilk’s state of mind, not the officer’s procedures.
The Court also rejected the argument that Wilk’s medical records should have been excluded, pointing out that Wilk relied on his mental status in his defense, and that the confidentiality of his records was limited if release was "required by law" – as it was here, when the grand jury subpoenaed the records.
The Court also found no error in the self-defense jury instruction. The instruction stated that, to overcome a self-defense claim, the government need oly show that the defendant "had reason to know" that the victims were law enforcement officers engaged in the performance of their duties. Wilk argued that this weakened the self-defense claim in relation to Circuit precedent. The Court rejected this argument, noting that only in "extraordinary" cases would the government be required to prove that the defendant "knew of" the victim’s status.
Barner: Prosecutor misled court on reasons for not giving 5K1.1 reduction
In U.S. v. Barner, No. 08-10080 (June 29, 2009), the Court affirmed the conviction of a defendant charged with possession of ecstasy, but reversed the sentence.
The Court rejected Barner’s claim that statements were obtained from him in violation of Miranda. The Court found that even though one statement was obtained while Barner was in jail, Barner himself initiated the discussion, and was not compelled to do so.
The Court also rejected Barner’s challenge to the use of statements he made during a "drive-around" Atlanta identifying locations of his past home invasions, finding this evidence was not of significance to the ultimate ecstasy distribution conviction.
Turning to sentencing, the Court rejected the government’s argument that any error in the sentencing guidelines calculation was harmless. The Court found that the district court did not clearly state that it would have imposed the same sentence under § 3553(a). Further, the district court imposed a sentence within the guidelines, and an error in applying the guidelines cannot be said to be harmless, even under § 3553(a).
The Court found two errors in the calculation of the sentence. First, the district court was misled by the prosecutor regarding the reasons for its withdrawal of a promised § 5K1.1 substantial assistance motion for sentence reduction. These statements may have caused the district court to sentence based on clearly erroneous facts.
Second, the court incorrectly denied an acceptance of responsibility sentence reduction, even though Barner proceeded to trial. Barner had cooperated with law enforcement, and had offered to plead guilty to the only count of a ten-count indictment for which he was subsequently convicted.
However, the Court affirmed sentence enhancements, including assigning criminal history points based on a prior Georgia conviction. The Court pointed out that this conviction was considered a prior conviction under Georgia law.
The Court rejected Barner’s claim that statements were obtained from him in violation of Miranda. The Court found that even though one statement was obtained while Barner was in jail, Barner himself initiated the discussion, and was not compelled to do so.
The Court also rejected Barner’s challenge to the use of statements he made during a "drive-around" Atlanta identifying locations of his past home invasions, finding this evidence was not of significance to the ultimate ecstasy distribution conviction.
Turning to sentencing, the Court rejected the government’s argument that any error in the sentencing guidelines calculation was harmless. The Court found that the district court did not clearly state that it would have imposed the same sentence under § 3553(a). Further, the district court imposed a sentence within the guidelines, and an error in applying the guidelines cannot be said to be harmless, even under § 3553(a).
The Court found two errors in the calculation of the sentence. First, the district court was misled by the prosecutor regarding the reasons for its withdrawal of a promised § 5K1.1 substantial assistance motion for sentence reduction. These statements may have caused the district court to sentence based on clearly erroneous facts.
Second, the court incorrectly denied an acceptance of responsibility sentence reduction, even though Barner proceeded to trial. Barner had cooperated with law enforcement, and had offered to plead guilty to the only count of a ten-count indictment for which he was subsequently convicted.
However, the Court affirmed sentence enhancements, including assigning criminal history points based on a prior Georgia conviction. The Court pointed out that this conviction was considered a prior conviction under Georgia law.
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