Eleventh Circuit Court of Appeals - Published Opinions

Friday, November 20, 2009

Hunter: Mental Retardation Tolls AEDPA deadline

In Hunter v. Ferrell, No. 08-16597 (Nov. 18, 2009), the Court held that despite the fact that an Alabama inmate missed the deadline for filing a federal habeas petition by eight years, because of his mental retardation he was entitled to an evidentiary hearing on whether the filing deadline should be equitably tolled on account of his retardation.

The Court noted that Hunter alleged that his mental retardation prevented him from timely filing his habeas petition. Moreover, the record supported this claim. First, his prior pro se filings were filed with the assistance of prison law clerks. Second, a mental health expert’s report “strongly suggests that Hunter’s well-documented, irreversible mental retardation is severe enough that Hunter, by himself, is not able to understand and comply with AEDPA’s filing requirements and deadlines.”

Monday, November 09, 2009

Hammond: Death penalty affirmed for Georgia inmate

In Hammond v. Hall, No. 08-11109 (Nov. 4, 2009) (Carnes, Marcus, Pryor), the Court affirmed the denial of habeas relief to a Georgia inmate sentenced to death for a 1988 murder.

The Court rejected Hammond’s Brady claim that the State suppressed its suspicions that the female accomplice who testified for the State against Hammond at trial had been his accomplice in prior assaults. The Court noted that this was not a record of prior convictions, nor “evidence.”

The Court also rejected Hammond’s request to have a shotgun tested in order to show that it was not the murder weapon. The Court noted that this request comes “years too late.”

The Court noted that an audiotape of witness testimony was suppressed, and that this audiotape might have shown that the witnesses disagreed about who had removed jewelry from the murder victim. But this discrepancy merely involved a “detail” in the evidence.

The Court also rejected the claim that the State failed to disclose the full scope of immunity of Hammond’s girlfriend, who was an accomplice in the charged murder and other Hammond crimes. The Court recognized that the failure to disclose a witness’ immunity requires a new trial if the witness is the State’s lead witness. But here there was other evidence against Hammond, and the jury knew at least of the witness immunity for the murder charge at issue.

Looking at the suppressed evidence as a whole, the Court concluded that “against the mountain of inculpatory evidence,” its confidence in the verdict was not undermined.

The Court rejected an ineffective assistance of counsel claim based on trial counsel’s failure to seek a mistrial during the sentencing phase of trial, when the prosecutor improperly warned the jury that if it did not sentence Hammond to death, he would someday be a free man. Under Georgia law, this improper argument triggers a right to a mistrial, but trial counsel instead accepted the trial court’s curative instruction. The Court deferred to the ruling of the Georgia courts that any ineffectiveness did not result in prejudice to Hammond, because of the aggravating circumstances and the trial court’s curative instruction. The Court found inadequate support in Supreme Court caselaw for defendant’s argument that the failure to obtain a mistrial is, of itself, prejudice. Further, the Georgia mistrial statute did not embody a constitutional right to not have the jury be aware of the possibility of parole if a death sentence is not imposed. Finally, the Court noted that the Georgia statute, by concealing truthful information about the defendant’s parole eligibility, does not make the sentencing process more fair or reliable.

Thursday, November 05, 2009

Brown: SORNA provides adequate registration requirement notice

In U.S. v. Brown, No. 08-17244 (Nov. 5, 2009), the Court affirmed a conviction for failure to register as a sex offender, as required by the Sex Offender Registration and Notification Act (SORNA), and the imposition of a sentence that included a life term of supervised release.

On plain error review, the Court rejected a challenge to the life term of supervised release was invalid. At his guilty plea colloquy, the court incorrectly told the defendant that he faced a maximum three-year term of supervised release. The PSI correctly stated the life term. The Court noted the error at the guilty plea colloquy was plain, but there was no prejudice because Brown did not establish that he would not have pled guilty had he known that the maximum supervised release term was life instead of three years.

The Court rejected the argument that Brown could not have violated SORNA by failing to register in Alabama when he moved to Alabama, as SORNA required, because Alabama had not yet implemented the SORNA requirements. The Court explained that Alabama’s requirements were different from Brown’s, and that Alabama already had a sex offender registry in place.

The Court also rejected Brown’s Due Process challenge to the registration requirement. The Court found that, by pleading guilty, he had waived the factual argument that he was prevented from registering. The Court also found that Brown received adequate notice of the registration requirement. The Court noted that Brown had actual knowledge of his duty to register in Alabama. Further, there were circumstances that would have prompted Brown to inquire further, including his own past compliance with the registration requirement in another state (North Carolina).

Tuesday, November 03, 2009

Harris: Fleeing Police at High Speed is "Crime of Violence"

In U.S. v. Harris, No. 08-15909 (Nov. 3, 2009), the Court affirmed reliance on a prior Florida state conviction for eluding a police officer at a high rate of speed as a “crime of violence” for Guidelines criminal history sentence enhancement purposes.

The Court noted that the elements of the offense were fleeing at high speed or a wanton disregard for safety, which are akin to crimes committed while aware that “violence might ensue.” The Court stated that a person who fled police at a high speed is the kind of person who might point a gun and pull the trigger. The crime displays a “callousness toward risk.” The conduct is also “aggressive” because highways are populated with people. The Court cited cases on other Circuits which reached the same conclusion.

Sanchez: Errors in 3559 sentence enhancements

In U.S. v. Sanchez, No. 06-15143 (Oct. 30, 2009), the Court affirmed convictions of several defendants relating to the attempted burglary of a marijuana grow-house.

The Court rejected defense challenges to the admission of cell phone records, finding them to be reliable business records. The Court also rejected challenges to the use of summaries of this evidence during trial, pointing out that the trial court had instructed the jury that the summaries were not evidence and that the evidence was the call records.

Turning to sentencing, on plain error review, the Court vacated sentences based on the federal “three strikes” law, 18 U.S.C. § 3559(c). As the government conceded, one defendant’s prior drug-trafficking conviction did not qualify as a prior drug trafficking offense for purposes of § 3559 because the drug quantity was unspecified, and § 3559 requires prior convictions of quantities above a specified amount in the cross-referenced federal drug statute.

The Court remanded to the district court another defendant’s argument that his prior “escape” conviction did not qualify as a crime of violence for § 3559 purposes. The Court noted that the district court had erroneously believed that the defendant could not raise this challenge to his sentence.

Finally, the Court found no procedural or substantive error in the district court’s upward departure and upward variance based on his criminal history. The Court noted that the district court had stated that it had considered the § 3553 factors.

Monday, November 02, 2009

Tate: 946-month sentence affirmed for bank robber

In U.S. v. Tate, No. 09-10288 (Oct. 30, 2009), the Court affirmed a defendant’s convictions for multiple bank robberies and firearm-possessions.

The Court rejected Tate’s challenge to the warrantless search of his home. The Court pointed out that probable cause suffices to justify search of a home when one would expect the defendant to have hidden stolen materials at his home. Here the circumstances established probable cause.

The Court also rejected Tate’s argument that the district court should have invited defense counsel to state whether he had any Batson challenges before the jury is sworn. The Court declined to create a new rule requiring the Court to ask for Batson objections.

Turning to sentencing, and recognizing a Circuit conflict on the issue, the Court held that 18 U.S.C. § 924(c) requires that sentence for using a firearm during the commission of a crime of violence be imposed consecutively. The Court also rejected Tate’s challenge to the reasonableness of his 946-month sentence, pointing out that it was within the Guideline range, and noting Tate’s escalating criminal history since his teenage years.