Lugo: Untimely federal habeas petition

In Lugo v. Sec. Fla. Dep’t of Corrections, No. 11-13439 (April 24, 2014), the Court held that the habeas petition of a Florida death row inmate was time-barred, and not subject to equitable tolling. The Court recognized that during a certain time period, the actions of Lugo’s counsel were disturbing, this conduct mostly occurred during a time period when the AEDPA statute of limitations was already tolled. [Concurring, Judge Martin cited statistics showing that 8% of Florida death row inmates miss the AEDPA deadline for filing habeas petitions, and discussed possible solutions to this problem, notably the timely appointment of federal habeas counsel].

Jeffries: Suspect credibility regarding mailing

In Jeffries v. U.S., No. 13-10730 (April 23, 2014), the Court affirmed the denial of a motion under 28 U.S.C. § 2255 on the ground that it was untimely. Jeffries claimed that he timely filed a supplement to his § 2255 motion. However, the prison employee in charge of the mailroom at the prison testified that there was no entry under Jeffries’ name in the mailroom book log on the date Jeffries claimed he mailed his supplement. In addition, Jeffries’ credibility was suspect because he claimed to have mailed his original § 2255 motion certified mail, but did not do so with his purported supplement mailing.

Tellis: Career offender not eligible for Amendment 750 reduction

In U.S. v. Tellis, No. 12-12596 (April 18, 2014), the Court affirmed the denial of a sentence reduction under 18 U.S.C. § 3582(c)(2) for a defendant serving an 188-month sentence for conspiracy to sell crack cocaine. The Court found that the PSR at Tellis’ original sentencing stated that Tellis was a career offender. The Court noted that while Tellis’ sentence was previously reduced pursuant to Guideline Amendment 706, because it was in effect based on his drug quantity level, the more recent Guideline Amendment, Amendment 750, did not apply because Tellis’ career offender guideline range was now higher than his drug offense level. The Court reaffirmed prior Circuit precedent which rejected the argument that the Supreme Court’s decision in Freeman had abrogated the rule that career offenders are not eligible for retroactive reductions to the crack cocaine guidelines.

Fowler: Sentencing Package requires repackaging after vacatur

In U.S. v. Fowler, No. 12-15818 (May 21, 2014), the Court rejected the argument that a district court, on resentencing, was not authorized to re-impose a life sentence. As the result of his murder of a Florida police officer, Fowler was originally convicted of witness-tampering in violation of 18 U.S.C. § 1512(a)(1)(C) and using a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c). At sentencing, the district court imposed a Guidelines life sentence on the witness-tampering count, and a mandatory 10-year consecutive sentence on the § 924(c) count. The witness-tampering conviction was ultimately dismissed after the Supreme Court ruled that the witness-tampering statute required a “reasonable likelihood” that the victim would make a communication to a federal law enforcement officer. At resentencing, the district court imposed a life sentence on the § 924(c) count. Fowler challenged the life sentence on appeal, claiming that the district court lacked authority to increase his sentence on the § 924(c) count from ten years to life. The Court rejected this argument, pointing out that the Court “on direct appeal, without hesitation and as a matter of course, vacated entire sentences and remanded for resentencing on all surviving counts.” “The sentence package that has been unpackaged by a reversal is to be repackaged at resentencing using the guidelines and the § 3553(a) factors.” The Court rejected Fowler’s reliance on “outmoded” cases involving vacaturs under § 2255. The Court also rejected Fowler’s reliance on the “aggregate remainder approach” of U.S. v. Monaco, 702 F.2d 860 (11th Cir. 1983). Under this approach, a district court, after vacatur of one of several counts, was not authorized under North Carolina v. Pearce to increase the total sentence attributable to all remaining counts. The Court noted that Monaco was a pre-Guidelines case, and held that it was not applicable to “package sentences” under the Guidelines. The Court explained that the North Carolina v. Pearce presumption of vindictiveness only arose when the total sentence was increased. Here, the original sentence was life, and the new sentence was also life. Moreover, the sentence was not “vindictive” because the district court explained that it would never have imposed a ten-year sentence on the § 924(c) count in the absence of a life sentence on the other count.

Ransfer: Testimony summarizing investigation can raise serious concerns

In U.S. v. Ransfer, No. 12-12956 (April 14, 2014) (Martin, Jordan & Baylson by designation), the Court found insufficient evidence to support convictions for one Hobbs Act robbery, but otherwise affirmed the convictions of defendants convicted of a series of robberies of businesses in Florida. As in its recent decision in U.S. v. Smith, 741 F.3d 1211 (11th Cir. 2013), the Court rejected the argument that the district court should have suppressed evidence obtained as a result of the warrantless installation of a GPS tracking device on a vehicle to track the vehicle’s movements. The Court explained that the police in good faith relied on long-standing Circuit precedent, prior to the Supreme Court’s decision in U.S. v. Jones, that it did not violate the Fourth Amendment to install an electronic device on the outside of a vehicle without a warrant. Because the error would have been harmless in light of other evidence admitted at trial, the Court did not reach the merits of whether it was erroneous to allow a police officer to testify at length, based on hearsay information he gathered during the investigation, about how the investigation proceeded. The Court noted in a footnote that other Circuits “have raised serious concerns with overview witnesses, when an introductory prosecution witness summarizes the findings of an investigation, thereby “painting a picture of guilt before the evidence has been introduced.” The Court found any error would have been harmless because each hearsay statement by the police officer was presented through other evidence, so the jury “would likely have reached the same verdict if [the hearsay testimony] had been excluded.” Turning to the sufficiency of the evidence with regard to one defendant who was charged with acting as a lookout for the robberies, the Court found that the text messages between this defendant and other defendants, the video surveillance, cell phone records, and the fact that his repeated presence at the scene of the robberies could not have been an “innocent coincidence.” As to one robbery, however, the Court found insufficient evidence, because there was no evidence that this defendant was ever inside the store that was robbed, and evidence of his presence in the vicinity was insufficient to convict him for aiding and abetting the robbery.

Davila: Magistrate Judge's "Highly Improper" Comments did not pressure guilty plea

In U.S. v. Davila, Nos. 10-15310 & 11-10224 (April15, 2014), on remand from the Supreme Court, see U.S. v. Davila, 133 S.Ct. 2139 (2013) (a court’s improper participation in plea discussions does not by itself demand automatic vacatur of a plea), the Court held that in light of the “full record” Davila had not established prejudice from a Magistrate Judge’s comments encouraging him to plead guilty, and therefore affirmed the conviction. The Court noted that it was reviewing the issue for plain error because Davila did not object to the Magistrate Judge’s comments. The Court noted that it applied the contemporaneous objection rule even in situations where counsel may have no desire to object. Further, TDavila did not object during the months when he represented himself pro se. The Court noted that the Magistrate Judge’s remarks encouraging Davila to plead guilty constituted error, and the error was plain. But the Court found that the error did not affect Davila’s substantial rights. Citing its recent decision on a similar issue in U.S. v. Castro, the Court determined that Davila pled guilty “to shorten the duration of his inevitable sentence.” Davila stated at his change-of-plea hearing that no one pressured him to plead guilty. The Court found some merit in Davila’s claim that his plea was a “desperate gambit” when everyone seemed aligned against him, but ultimately found that he pled guilty “simply because he had negotiated a better deal” than was initially offered. The Court also noted the lapse of time between the Magistrate Judge’s comments and the guilty plea. Though recognizing that the Magistrate Judge’s comments regarding the desirability of a guilty plea were “emphatic and highly improper,” the Court found that this was not enough to show prejudice, in light of the full record.

Osley: Counsel not ineffective in failing to advise of mandatory minimum

In Osley v. U.S., No. 11-14989 (April 11, 2014), the Court affirmed the denial of a motion under 28 U.S.C. § 2255 that alleged that counsel was ineffective in failing to advise the defendant during plea negotiations that his sex trafficking of a minor offense carried a statutory mandatory minimum. During plea negotiations, Osley was informed that there was no mandatory minimum sentence for his offenses, a statutory maximum of life, and that the prosecution would ask for an 80 months sentence if he pled guilty, which would result in Osley facing as little as 59.5 months with good behavior. In reality, unbeknownst to Osley, because of a recent change in the statute, Osley was subject to 15-year mandatory minimum. Osley declined the plea offer and went to trial. The jury convicted him on all counts. At sentencing, Osley was subject on an advisory Guidelines sentence of 210- 262 months. Based on the nature of the crime and Osley’s lack of remorse, the Court varied upward and imposed a 365 months sentence. Rejecting Osley’s claim that his defense counsel was ineffective for having failed to inform him of the 15-year statutory minimum, the Court pointed out that Osley turned down a plea offer with a much lesser sentence. The Court said it was hard-pressed to accept the claim that Osley would have accepted a 15-year sentence, even had he known about this statutory minimum. The Court further noted that Osley could not establish that the district court would have accepted the lesser sentence, noting that the district court would necessarily have vacated a plea agreement that recommended a sentence below a mandatory minimum. The Court also found that Osley did not establish that his sentence would have been less severe, pointing out that the district court likely would have learned of the egregious circumstances surrounding the crime in the PSI, and therefore imposed as severe a sentence as it did after trial. The Court also rejected the claim that counsel was ineffective in failing to advise Osley that he was subject to a life term of supervised release, pointing out that Osley still went to trial knowing that he faced a life sentence. Finally, the Court rejected the claim that counsel was ineffective in failing to object to “double counting” in the imposition of separate enhancements, one based on a Guideline cross-reference, another based on a Guideline specific characteristic, that accounted for the harm Osley caused. The Court found that one enhancement was for “sexual abuse of the victim,” and the other was for the “aggravated nature of that abuse.” In addition, even if double counting occurred, this would not have changed the result because the district court would have imposed the same sentence even without the alleged double counting.

Rodriguez: State must serve Appendix on habeas petitioner

In Rodriguez v. Fla. Dep’t of Corrections, No. 12-10887 (April 7, 2014), the Court held that the State is required to serve on a habeas petitioner the exhibits included in the Appendix referenced in the State’s answer. The Court rejected the argument that the Appendix was not an “attachment” or an “exhibit’ to the Answer. The Court pointed out that the Attorney General referenced the documents “because they were relevant to her argument,” and the Answer therefore depends on the Appendix’s referenced documents to support and lend meaning to the arguments it presents.

Grzybowicz: Distribution requires more than sending images to oneself

In U.S. v. Grzybowicz, No. 12-13749 (April 4, 2014), the Court affirmed two child pornography convictions and reversed a third one. The Court rejected Grzybowicz’s challenge to the sufficiency of the evidence for producing and possessing child pornography in violation of 18 U.S.C. § 2252A, noting that it would have been utterly contrary to the evidence for the jury to have found that the photos at issue were not a “lascivious exhibition of the genitals or pubic area.” The Court, however, found merit in Grzybowicz’s challenge to the sufficiency of the distribution count. The Court noted that Grzybowicz sent images from his cellphone to his computer. Thus “there is no evidence that Grzybowicz sent the images of child pornography to anyone other than himself.” The images on the computer were not stored in a shared folder accessible to other and were not uploaded to any publicly accessible website. Noting that “[w]e do not commonly speak of delivering to ourselves things that we already have,” the Court distinguished cases involving allowing access to images on a computer through a peer-to-peer program.

Travis: Vehicular Flight is a "Crime of Violence"

In U.S. v. Travis, No. 13-10400 (April 4, 2014), relying on Sykes v. U.S., held that vehicle flight in violation of Fla. Stat. § 316.1935(1) constitutes a crime of violence for purposes of the career offender sentencing guideline. The Florida statute, like the one at issue in Sykes, required nothing more than using a vehicle to flee after an officer has ordered the driver to stop. The Court held that even though § 316.1935(1) violations do not involve high speeds or other reckless conduct, they are an inherently risky enterprise because they can end in violent confrontations between the offender and police. They therefore qualify as offenses presenting “a serious potential risk of physical injury to another.”

Brown: Magistrate Judges Lack Statutory Authority to Enter Final Judgment in 2255 cases

In Brown v. U.S., Nos. 11-15149 & 12-10293 (April 7, 2014), the Court held that entry of final judgment on a motion to vacate a sentence under 28 U.S.C. § 2255 falls outside the grant of statutory authority to Magistrate Judges delegated in 28 U.S.C. § 636(c). Declining to reach the issue whether Article III of the Constitution prohibits a Magistrate Judge from entering final judgment on a § 2255 motion, the Court analyzed at length the history of the magistrate system and Supreme Court caselaw regarding Magistrate Judge authority. The Court noted that Magistrate Judges are appointed by District Courts, and would not be expected to evaluate the District Courts’ conduct at trial in a § 2255 motion. The Court also noted that it was constitutionally troublesome for Magistrate Judges to exercise a Judicial Power reserved for Article III courts. The Court therefore vacated the Magistrate Judge’s order denying Brown’s § 2255 motion and, expressing no views on the merits of Brown’s underlying claims for § 2255 relief, remanded the case to the District Court for disposition.

Feliciano: Credibility is for the jury to decide

In U.S. v. Feliciano, No. 12-15341 (April 3, 2014), the Court agreed with the government’s concession that the evidence was insufficient to support a conviction for using a firearm during a bank robbery, in view of the lack of evidence that Feliciano possessed a firearm during the robbery – but affirmed convictions on all other counts. The Court rejected Feliciano’s challenge to the credibility of the cooperating witnesses who testified against him. Though noting that there was a valid basis for these credibility challenges, the Court concluded that the issue of credibility was ultimately for the jury to decide. The Court agreed with Feliciano that the district court improperly denied him his request for expert assistance in interpreting an MRI and establishing that his back injury made it impossible for him to have been the bank robber who jumped over a teller window. But the Court found that the denial of this assistance did not have a substantial and injurious effect on the jury’s verdict, pointing out that a doctor testified at trial that Feliciano was not physically capable of jumping over the teller window. The Court rejected Feliciano’s claim that the district court erred in allowing a portion of a phone call between him and his brother to be played during the government’s rebuttal case, without the brother being on the stand, after the brother had testified at trial. Feliciano argued that the call should not have been admitted as substantive evidence, and without the brother being present. The Court noted that Rule 613(b) does not specify a particular sequence for the admission of a prior inconsistent statement. Further, the statement was actually exculpatory, so was not substantive evidence against Feliciano. The Court found no reversible error in the prosecutor’s statement in closing argument that the jury had not seen recent MRIs – knowing that the district court had denied Feliciano’s request for expert assistance in receiving a recent MRI. The Court noted, however, that “[t]his conduct does not meet the standard we expect of United States prosecutors.” [Dissenting from this portion of the decision, Judge Pryor faulted the majority for “nitpick[ing]” the prosecutor’s closing argument.