Eleventh Circuit Court of Appeals - Published Opinions

Wednesday, July 27, 2011

Chavez: Lawyer misconduct not sufficiently egregious to toll

In Chavez v. Sec. Dep’t of Corrections, No. 10-13840 (July 25, 2011), the Court denied habeas relief to a Florida death row inmate because his petition was time-barred under AEDPA.

The Court found that defense counsel, whose delay in filing post-conviction motions caused Chavez’ ultimate federal petition to be untimely (because the one-year limitations period under AEDPA is only statutorily tolled during the period when a State post-conviction proceeding is pending) were merely negligent, and did not engage in the kind of “egregious attorney misconduct” that entitles habeas petitioners to equitable tolling. The Court also found that Chavez’ own lack of diligence in pursuing federal habeas relief precluded a finding of equitable tolling.

Friday, July 22, 2011

Cooper: Counsel's Failure to present mitigating evidence was ineffective

In Cooper v. Sec. Dep’t of Corrections, No. 09-12977 (July 21, 2011), the Court granted habeas relief to a Florida inmate sentence to death for murders committed in 1982, finding that counsel was ineffective for failing to present mitigating evidence at the sentencing phase.

The Court found that counsel were ineffective in talking only to Cooper’s mother and a doctor when conducting a background investigation. The lawyers failed to interview potential witnesses, such as Cooper’s brother or sister, who would have testified about the extent of the abuse Cooper suffered from his father during his youth – testimony that the mother could not provide, because she was away for periods of Cooper’s life when she and Cooper’s father were separated.

Citing the its recent decision in Johnson, the Court found that Cooper was prejudiced by his lawyers’ ineffectiveness: “There was a wealth of mitigating evidence that was not presented.” This evidence would have supported both statutory and nonstatutory mitigators.

Wednesday, July 20, 2011

Ly: Court must correct pro se defendant's misunderstanding of right to testify

In U.S. v. Ly, No. 09-12515 (July 20, 2011), the Court held that a district court is required to correct a pro se defendant’s obvious misunderstanding of his right to testify. The Court therefore reversed the convictions.

Ly, who represented himself pro se, misunderstood the nature of his right to testify: he did not know that he could testify on direct in narrative form, without being asked questions. The district said nothing to clear up his misunderstanding.

The Court held that where, as here, the district court (1) knew that the defendant had not “knowingly and intelligently” waived the right to testify, and (2) initiated a colloquy with the defendant on whether he would testify and reinforced the defendant’s mistaken view, the district court was required to correct the pro se defendant’s mistaken view.

The Court found that the error was not harmless. Ly “presented nothing” in his defense. “This absence deprived the jury of an alternative narrative.”

Thursday, July 14, 2011

Chaplin: $1.8 million forfeiture not excessive

In U.S. v. Chaplin’s, No. 10-10832 (July 13, 2011), the Court rejected an argument that a forfeiture order exceeded the Excessive Fines Clause of the Eighth Amendment.

Chaplin’s was a jewelry store in Atlanta, Georgia, convicted, after a government sting, of money laundering the proceeds of drug trafficking.

At sentencing, the Court imposed a $100,000 fine and ordered forfeiture of $1,877,262. Chaplin’s argued that the forfeiture was unconstitutionally excessive.

The Court noted that a fine is unconstitutionally excessive when it is “grossly disproportional to the gravity of a defendant’s offense.” The Court found that the $1,877, 262 forfeiture was not unconstitutionally excessive. The Court noted that the maximum fine was $1,500,000, and the Guideline range was $650,000 to $1,300,000. Even though Chaplin’s violation involved a government sting, it was a serious money laundering crime, and not an isolated event. The sentencing court stated that it imposed only a $100,000 fine because it had already ordered forfeiture of Chaplin’s jewelry inventory. Though the forfeiture exceeded the statutory maximum fine, the crime was more serious than the conduct in cases where courts found a forfeiture award excessive.

Stewart: 2255 Motion Not "Second or Successive"

In Stewart v. United States, No. 09-15821 (July 14, 2011), the Court held that a § 2255 petition was not “second or successive” under the AEDPA, and should not have been dismissed on this basis.

After being sentenced as a career offender based on past State convictions, Stewart commenced proceedings in Georgia State court seeking to have his prior convictions vacated. While his State proceedings were pending, Stewart filed a first § 2255 motion in federal court, which was dismissed as time-barred. Years later, Stewart succeeded in getting his past state convictions vacated by Georgia State courts. He then filed a second § 2255 petition, attacking his career offender status on the ground that his past state convictions had now been vacated.

The Court held that because the basis for the second § 2255 motion did not exist until the Georgia courts vacated Stewart’s prior Georgia convictions, and because Stewart acted diligently in obtaining vacatur of his Georgia convictions, his second § 2255 motion was not subject to the AEDPA gatekeeping limitations on “second or successive” § 2255 motions.

Wednesday, July 13, 2011

Borden: Procedural dismiss in habeas is equivalent to adjudication on merits

In Borden v. Allen, No. 09-14322 (July 12, 2011), the Court denied habeas relief to an Alabama death row inmate convicted of 1993 murders.

The Court agreed with Alabama courts that at the State post-conviction stage, Borden failed to adequately allege facts supporting his ineffective assistance of counsel claim at his state trial. The Court found that “nowhere” had Borden pled facts that would tend to show that he was prejudiced by his counsel’s allegedly deficient performance. The Court treated the dismissal by Alabama courts of Borden’s post-conviction proceedings as the equivalent of a determination on the merits, and it deferred to that determination as not unreasonable under AEDPA standards.

Ramierez-Garcia: Taking Indecent Liberties with a minor is a "Crime of Violence"

In U.S. v. Ramirez-Garcia, No. 10-13279 (July 12, 2011), the Court held that a prior State conviction for taking indecent liberties with a minor qualified as a “crime of violence” for purposes of a 16-level sentence enhancement under U.S.S.G. § 2L1.2(b)(1)(A).

The Guidelines provide that “sexual abuse of a minor” qualifies as a “crime of violence.” The Court noted that its precedent broadly defined “sexual abuse of a minor” as “a perpetrator’s physical or nonphysical misuse or maltreatment of a minor for a purpose associated with sexual gratification.” The Court rejected Ramirez-Garcia’s argument that it should revisit its definition of “sexual abuse of a minor” and adopt a new, narrower definition, based on a “generic” definition of the crime of “sexual abuse of a minor.” The Court found that coming up with such a generic definition would be difficult because of the variety of sex offense statutes in different States. Instead, the Court relied on the plain meaning of “sexual abuse of a minor,” and noted that the term encompassed conduct, like that covered by the State “taking indecent liberties” statute under which Ramirez-Garcia had been previously convicted.

Friday, July 08, 2011

Conner: No Procedural Bar to Mental Retardation Claim

In Conner v. Hall, No. 10-10928 (July 7, 2011), the Court reversed the denial of habeas relief to a Georgia inmate sentenced to death for a 1982 murder.

The district court had rejected Conner’s challenge to his execution on the grounds of mental retardation because it found that Conner had procedurally defaulted this claim in the Georgia state courts. The Court noted that the procedural default bar only applies to State procedural rules that were consistently applied. The Court found that Georgia did not consistently apply a procedural bar to persons who claimed they were mentally retarded and should not be executed. The Court therefore remanded the case to the district court.

Thursday, July 07, 2011

Bradley: Convictions Affirmed in $30 million medicaid fraud

In U.S. v. Bradley, No. 06-14934 (June 29, 2011), in a 195-page opinion the Court reserved some convictions and upheld others in a prosecution involving medicaid fraud in excess of $30 million.

The Court rejected sufficiency of the evidence challenges to the fraud charges. The Court found that there was sufficient evidence that the defendants knew that Medicaid had a policy not to reimburse twice for medications that had been dispensed, and went to great lengths to conceal the fact that the medications for which they obtained reimbursements had been recycled.

The Court also rejected a challenge to venue. The Court found that when a defendant is charged with failure to file a form, venue lies in a district where the form should have been filed, so long as the government’s choice of venue does not create a constitutional hardship. The Court denied another challenge to venue by noting that a defendant is vicariously responsible for the acts of any co-conspirator, and because some acts occurred in the Southern District of Georgia, venue was proper there.

The Court rejected the argument that the seizure of large numbers of computers and hard drives violated the Fourth Amendment, because the warrant that authorized seizure of “all business records” lacked the requisite particularity. The Court held that the “pervasive fraud” doctrine applied, even though the fraud involved a small percentage of the defendants’ business, because the fraud “infected” numerous individuals and businesses, spread amongst a “myriad of records.”

The Court also rejected the argument that the Fourth Amendment was violated when a law enforcement agent ordered employees to shut down the computer servers while a warrant was being obtained, to prevent the employees from erasing data during the period the warrant was obtained. The Court found that the concern about erasure of date created an exigent circumstance that warranted shutting down the servers without a warrant.

The Court rejected the argument that the admission of evidence of defendants’ wealth was unduly prejudicial, in violation of Fed. R. Evid. 403. The Court found the evidence probative of the defendants’ motive, “even if only slightly so.”

The Court recognized that the admission of extrinsic acts as impeachment evidence violated Fed. R. Evid. 404(b), because the government gave no prior notice of its intent to use this evidence. However, the error was harmless.

The Court rejected one defendant’s challenge to the trial court’s exclusion, on hearsay grounds, of the statements of interlocutors in conversations. The Court found that this defendant sought to introduce these statements to show their truth, in violation of the hearsay rule.

The Court found no abuse of discretion in the trial court’s failure to investigate a juror’s report that two other jurors on the fourth day of trial had prejudged the defendants guilty. The Court found that the trial court’s admonition to the jurors to refrain from premature deliberations sufficed, in light of one juror’s subsequent statement about juror impartiality, and the jury’s eventual conviction on some counts and acquittal on others.

The Court found no error in the dismissal of a juror who had taken painkillers to get through back pain during the trial. The Court found that the dismissal was based on the juror’s poor health, not, as the defense contended, because the juror was the “one holdout” in the defendant’s favor.

Turning to sentencing, the Court found that the district court erred in including patients among the number of victims of the defendants’ medicaid fraud. The district court also erred in enhancing the sentence pursuant to U.S.S.G. § 2B1.1(b)(4) because a defendant was a “fence,” when the defendant was “a thief and not a fence.” However, the enhancement errors did not affect one defendant’s sentence, because the Guideline range remained above the statutory maximum sentence the defendant received. The errors did affect another defendant’s sentence, and the Court vacated this sentence because this defendant might have received a lesser sentence.

The Court found that the district court failed, for purposes of determining the applicable guideline to find, beyond a reasonable doubt, which offense two defendants conspired to commit. The Court therefore vacated these sentences.

Finally, the Court reversed the district court’s appointment of a receiver to marshal the assets of the defendant corporations in order to collect restitution. The Court noted that the government’s authority to seize and garnish property, and ability to obtain discovery under the Rules of Civil Procedure, made the extraordinary remedy of appointment of a receiver “inappropriate.”