In San Martin v. McNeil, No. 09-14311 (Feb. 23, 2011), the Court rejected as untimely the federal habeas petition filed by a Florida inmate sentenced to death for a 1991 murder.
San Martin filed his federal habeas petition two weeks after the one-year deadline of AEPDA. He argued that the limitations period should be equitably tolled, because of a two-week delay in his receipt of the decision of the United States Supreme Court that started the period running. Rejecting this argument, the Court noted that San Martin waited 349 days after receipt of the Supreme Court order before filing his state post-conviction claim. The Court also noted that, to invoke equitable tolling, a petitioner must show diligent attempts to ascertain the status of his case – which San Martin failed to do.
Thursday, February 24, 2011
Julian: 924(j) does not require consecutive sentences
In U.S. v. Julian, No. 09-13673 (Feb. 22, 2011), the Court vacated a sentence and remanded for resentencing, because the district court erroneously concluded that it was required by statute to impose consecutive sentences, and lacked discretion to impose concurrent sentences.
Julian pled guilty of several offenses, including a violation of 18 U.S.C. § 924(j), which makes it a crime for a person, in the course of a violation of 18 U.S.C. § 924(c) (use of a firearm during a crime of violence or a drug trafficking offense), to cause the death of a person. At sentencing, the district court concluded that § 924(c)(1)(D)(ii) required it to impose a consecutive sentence of life for the § 924(j) violation. Reversing, the Court held that the district court could impose a concurrent punishment for the § 924(k) violation.
The Court noted that the language of § 924(c) with regard to consecutive sentences referred to “this subsection,” i.e., 924(c), not 924(j). Further, the placement of the “cause of death” provision in a separate subsection of the statute indicated that it was a separate offense, not a sentencing enhancement. Further, the considerable increase in punishment for causing the death of a person indicated that the provision created a separate offense. In addition, the government itself treated causing death as something it had to prove to obtain a conviction, because this fact increased the statutory maximum, thus confirming that the provision was more than a sentencing enhancement. The Court recognized conflict with two other Circuits, but found those opinions unpersuasive.
Julian pled guilty of several offenses, including a violation of 18 U.S.C. § 924(j), which makes it a crime for a person, in the course of a violation of 18 U.S.C. § 924(c) (use of a firearm during a crime of violence or a drug trafficking offense), to cause the death of a person. At sentencing, the district court concluded that § 924(c)(1)(D)(ii) required it to impose a consecutive sentence of life for the § 924(j) violation. Reversing, the Court held that the district court could impose a concurrent punishment for the § 924(k) violation.
The Court noted that the language of § 924(c) with regard to consecutive sentences referred to “this subsection,” i.e., 924(c), not 924(j). Further, the placement of the “cause of death” provision in a separate subsection of the statute indicated that it was a separate offense, not a sentencing enhancement. Further, the considerable increase in punishment for causing the death of a person indicated that the provision created a separate offense. In addition, the government itself treated causing death as something it had to prove to obtain a conviction, because this fact increased the statutory maximum, thus confirming that the provision was more than a sentencing enhancement. The Court recognized conflict with two other Circuits, but found those opinions unpersuasive.
Wednesday, February 16, 2011
Lockley: Florida "Attempted Robbery" is "Crime of Violence"
In U.S. v. Lockley, No. 09-15728 (Feb. 11, 2011), the Court held that a prior conviction for “attempted robbery,” in violation of Fla. Stat. §§ 812.13(1) and 777.04(1) qualified as “crime of violence” for purposes of the career offender Guideline.
The Court noted that the career offender guideline expressly includes “robbery,” which refers to “generic” forms of robbery. The Court found that Florida’s “attempted robbery” offense is a generic form of robbery. The statute requires that a defendant take the money or property of another, with the intent to permanently deprive the person of it, using force, violence, or threats of force. The Court found that the “intimidation” element of the statute was generic.
The Court noted that Florida’s attempt statute, which requires that a “substantial step” be taken toward commission of the offense, falls within the generic meaning of “attempt” in the Guidelines.
The Court further noted that “attempted robbery” would also qualify under the “residual clause” of the career offender Guideline. The Court noted that attempted robbery is similar in degree to the offenses enumerated in the residual clause. Robbery is purposeful, and it is a potentially aggressive and violent act. The Court noted the difference between “robbery” and Florida’s lesser offense of “robbery by sudden snatching.”
The Court noted that the career offender guideline expressly includes “robbery,” which refers to “generic” forms of robbery. The Court found that Florida’s “attempted robbery” offense is a generic form of robbery. The statute requires that a defendant take the money or property of another, with the intent to permanently deprive the person of it, using force, violence, or threats of force. The Court found that the “intimidation” element of the statute was generic.
The Court noted that Florida’s attempt statute, which requires that a “substantial step” be taken toward commission of the offense, falls within the generic meaning of “attempt” in the Guidelines.
The Court further noted that “attempted robbery” would also qualify under the “residual clause” of the career offender Guideline. The Court noted that attempted robbery is similar in degree to the offenses enumerated in the residual clause. Robbery is purposeful, and it is a potentially aggressive and violent act. The Court noted the difference between “robbery” and Florida’s lesser offense of “robbery by sudden snatching.”
Tuesday, February 15, 2011
Ibarquen-Mosquera: DTVIA is Constitutional (Part 2)
In U.S. v. Ibarguen-Mosquera, No. 09-14476 (Feb. 10, 2011), the Court rejected challenges to the constitutionality of the Drug Trafficking Vessel Interdiction Act (DTVIA).
The Court rejected a challenge based on international law principles, noting that these principles only apply to laws that govern the conduct of flagged vessels, whereas the DTVIA applies to stateless vessels.
The Court rejected the argument that the terms “semi-submersible vessel” and “intent to evade” were void for vagueness. The Court found that the application of both terms to defendants was clear: “Defendants traveled in a Vessel that sat very low in the water, was painted ocean-blue, and had no headlights or signals.”
The Court also rejected the argument that the conspiracy and substantive offenses were double punishment for the same offense, noting that conspiracy involves “collaboration” to violate the statute while the substantive offense does not.
The Court ruled that the statute does not require that a defendant “knowingly” navigate on the high seas. The high seas element was merely a jurisdictional element of the statute.
The Court rejected a challenge based on international law principles, noting that these principles only apply to laws that govern the conduct of flagged vessels, whereas the DTVIA applies to stateless vessels.
The Court rejected the argument that the terms “semi-submersible vessel” and “intent to evade” were void for vagueness. The Court found that the application of both terms to defendants was clear: “Defendants traveled in a Vessel that sat very low in the water, was painted ocean-blue, and had no headlights or signals.”
The Court also rejected the argument that the conspiracy and substantive offenses were double punishment for the same offense, noting that conspiracy involves “collaboration” to violate the statute while the substantive offense does not.
The Court ruled that the statute does not require that a defendant “knowingly” navigate on the high seas. The high seas element was merely a jurisdictional element of the statute.
Saac: DTVIA is Constitutional (Part I)
In U.S. v. Saac, No. 09-14204 (Feb. 9, 2011), the Court upheld the constitutionality of the Drug Trafficking Vessel Interdiction Act of 2008 (DTVIA). The defendants were convicted under the DTVIA of operating a semi-submersible vessel in international waters.
The Court rejected the argument that the defendants’ unconditional guilty pleas waived their right to challenge the constitutionality of the DTVIA on appeal. The Court ruled that the constitutionality of a criminal statute to which a defendants pleads guilty is a jurisdictional issue that a defendant does not waive upon pleading guilty.
The Court rejected the argument that the “High Seas” clause of the Constitution, which vests Congress with power to define crimes on the High Seas, requires that the crime have a connection with the United States. The Court noted that drug trafficking is condemned universally by law-abiding nations.
Turning to sentencing, the Court found that, in the absence of a promulgated Guideline at the time of sentencing with respect to submersible vessels, the district court did not err in declining to impose sentence based on the Guideline governing tunnels and subterranean passages. The district court did not abuse its discretion in finding the tunnel guideline insufficiently “analogous” for sentencing purposes.
The Court rejected the argument that a sentence was excessive because the alien-defendant would not be eligible for certain vocational programs. The Court noted that the sentence was well below the statutory maximum.
The Court rejected the argument that the defendants’ unconditional guilty pleas waived their right to challenge the constitutionality of the DTVIA on appeal. The Court ruled that the constitutionality of a criminal statute to which a defendants pleads guilty is a jurisdictional issue that a defendant does not waive upon pleading guilty.
The Court rejected the argument that the “High Seas” clause of the Constitution, which vests Congress with power to define crimes on the High Seas, requires that the crime have a connection with the United States. The Court noted that drug trafficking is condemned universally by law-abiding nations.
Turning to sentencing, the Court found that, in the absence of a promulgated Guideline at the time of sentencing with respect to submersible vessels, the district court did not err in declining to impose sentence based on the Guideline governing tunnels and subterranean passages. The district court did not abuse its discretion in finding the tunnel guideline insufficiently “analogous” for sentencing purposes.
The Court rejected the argument that a sentence was excessive because the alien-defendant would not be eligible for certain vocational programs. The Court noted that the sentence was well below the statutory maximum.
Friday, February 04, 2011
Lee: Conspiracy not "Crime of Violence"
In U.S. v. Lee, No. 10-10926 (Feb. 2, 2011)
the Court held that a prior New Jersey conviction for conspiracy to commit armed robbery did not qualify as a “crime of violence” for purposes of the Guidelines career offender enhancement, but a prior New Jersey conviction for eluding police did so qualify.
The Court noted that it had previously held that a non-overt act conspiracy is not a “crime of violence” for career offender purposes. New Jersey’s statute criminalizing conspiracy to commit armed robbery did not require an overt act. It therefore did not qualify as a “crime of violence.”
As for the eluding police conviction, the Court noted that the offense involves a motorist who “knowingly” flees after receiving a signal from law enforcement, in a flight that “creates a risk of death or injury to any person.” The Court found that such a motorist poses a danger to himself, other drivers, passengers, pedestrians and law enforcement officers. The Court concluded that fleeing at high speed amounts to holding a finger on the trigger of a deadly weapon. The offense therefore qualified as a crime of violence..
the Court held that a prior New Jersey conviction for conspiracy to commit armed robbery did not qualify as a “crime of violence” for purposes of the Guidelines career offender enhancement, but a prior New Jersey conviction for eluding police did so qualify.
The Court noted that it had previously held that a non-overt act conspiracy is not a “crime of violence” for career offender purposes. New Jersey’s statute criminalizing conspiracy to commit armed robbery did not require an overt act. It therefore did not qualify as a “crime of violence.”
As for the eluding police conviction, the Court noted that the offense involves a motorist who “knowingly” flees after receiving a signal from law enforcement, in a flight that “creates a risk of death or injury to any person.” The Court found that such a motorist poses a danger to himself, other drivers, passengers, pedestrians and law enforcement officers. The Court concluded that fleeing at high speed amounts to holding a finger on the trigger of a deadly weapon. The offense therefore qualified as a crime of violence..
Friday, January 28, 2011
Preacher: Abandonment not applicable defense to using interstate facility for murder
In U.S. v. Preacher, No. 10-10492 (Jan. 28, 2011), the Court held that an abandonment defense was not available for the offense of using a facility of interstate commerce with the intent that a murder for hire be committed.
Preacher used a cell phone to contact someone with the idea of hiring someone to commit murder. Preacher later got scared and “cancelled the deal.” Nevertheless, the offense of using a facility of interstate commerce was complete. The defense of abandonment therefore was not available to Preacher. The Court affirmed his conviction.
Preacher used a cell phone to contact someone with the idea of hiring someone to commit murder. Preacher later got scared and “cancelled the deal.” Nevertheless, the offense of using a facility of interstate commerce was complete. The defense of abandonment therefore was not available to Preacher. The Court affirmed his conviction.
McDaniel: Child pornography possessor proximately causes harm
In U.S. v. McDaniel, No. 09-15038 (Jan. 28, 2011), the Court affirmed a judgment of restitution in favor of a victim of child pornography.
The Court noted that although the defendant did not create the child pornography in which the victim was pictured, he possessed the pornography, and was therefore part of the market that supported the creation of this pornography.
The Court noted that in order to recover restitution from a defendant, a victim must show that the defendant was the “proximate cause” of her monetary damages.
The Court found that McDaniel, though not the creator of the pornography that pictured the victim but only a possessor, nonetheless proximately caused the “slow acid drip” of trauma that exacerbated the victim’s emotional issues. The Court therefore affirmed the $12,750 restitution order.
The Court noted that although the defendant did not create the child pornography in which the victim was pictured, he possessed the pornography, and was therefore part of the market that supported the creation of this pornography.
The Court noted that in order to recover restitution from a defendant, a victim must show that the defendant was the “proximate cause” of her monetary damages.
The Court found that McDaniel, though not the creator of the pornography that pictured the victim but only a possessor, nonetheless proximately caused the “slow acid drip” of trauma that exacerbated the victim’s emotional issues. The Court therefore affirmed the $12,750 restitution order.
Wednesday, January 26, 2011
Shannon: Purchase is not Possession
In U.S. v. Shannon, No. 10-10599 (Jan. 26, 2011), the Court held that a prior conviction for the purchase of cocaine in violation of Florida law did not qualify as a “controlled substance offense” for purposes of “career offender” status under the Guidelines.
The Court noted that the Florida statute encompassed different conduct, but because the record before the district court did not indicate the statutorily prohibited act for which the defendant was convicted, the Court was required to assume that his act was the “least prohibited act,” i.e., “purchase.”
The Court rejected the government’s argument that purchase of cocaine was equivalent to “possession” of cocaine. The Court noted that the Florida statute distinguished between “purchase” and “possession.” In addition, the career offender Guideline referred to possession, not purchase.
The Court noted that the Florida statute encompassed different conduct, but because the record before the district court did not indicate the statutorily prohibited act for which the defendant was convicted, the Court was required to assume that his act was the “least prohibited act,” i.e., “purchase.”
The Court rejected the government’s argument that purchase of cocaine was equivalent to “possession” of cocaine. The Court noted that the Florida statute distinguished between “purchase” and “possession.” In addition, the career offender Guideline referred to possession, not purchase.
Tuesday, January 25, 2011
Jerchower: Amendment 732 was Clarifying Amendment
In U.S. v. Jerchower, No. 09-13795 (Jan. 25, 2011), the Court held that Amendment 732 was a “clarifying amendment” and therefore retroactively applicable.
Amendment 732 provides that the “undue influence” enhancement for defendants convicted of prohibited sexual conduct does not apply when the only “minor” was an undercover law enforcement officer.
The Court noted that substantive guideline amendments do not apply retroactively (unless the Sentencing Commission expressly so provides pursuant to USSG § 1B1.10(c)), while clarifying amendment do apply retroactively, and are available to defendants whose cases are on appeal.
In concluding that Amendment 732 was clarifying and not substantive, the Court noted that Amendment 732 resolved a Circuit conflict on whether the “undue influence” enhancement applied in cases where the minor who was the “victim” was in reality a law enforcement officer (Amendment 732 overruled Eleventh Circuit precedent which had held that the enhancement applied in such cases). In addition, Amendment 732 amended a Guideline commentary, not a Guideline. Further, the Commission’s explanation of the reason for the amendment made clear its clarifying nature. Amendment 732 clarified a meaning inherent in the original Guideline.
The Court held that Amendment 732 applied to Jerchower retroactively, and remanded the case for resentencing.
Amendment 732 provides that the “undue influence” enhancement for defendants convicted of prohibited sexual conduct does not apply when the only “minor” was an undercover law enforcement officer.
The Court noted that substantive guideline amendments do not apply retroactively (unless the Sentencing Commission expressly so provides pursuant to USSG § 1B1.10(c)), while clarifying amendment do apply retroactively, and are available to defendants whose cases are on appeal.
In concluding that Amendment 732 was clarifying and not substantive, the Court noted that Amendment 732 resolved a Circuit conflict on whether the “undue influence” enhancement applied in cases where the minor who was the “victim” was in reality a law enforcement officer (Amendment 732 overruled Eleventh Circuit precedent which had held that the enhancement applied in such cases). In addition, Amendment 732 amended a Guideline commentary, not a Guideline. Further, the Commission’s explanation of the reason for the amendment made clear its clarifying nature. Amendment 732 clarified a meaning inherent in the original Guideline.
The Court held that Amendment 732 applied to Jerchower retroactively, and remanded the case for resentencing.
Friday, January 14, 2011
Diaz: Involuntary Medication to Render Defendant Mentally Competent for Trial
In U.S. v. Diaz, No. 09-15421 (Jan. 12, 2011), the Court affirmed a district court’s grant of permission to medicate a defendant involuntarily in order to render him mentally competent to stand trial.
After reviewing at length the expert reports regarding Diaz’s schizophrenia, and statistical studies regarding the effectiveness of medication, the Court found a “substantial likelihood that anti-psychotic medication will restore Diaz to competency,” and that this medication “is not substantially likely to cause side effects that would interfere with Diaz’s ability to assist counsel.” The Court credited expert opinions that side effects “easily can be controlled with supplemental medication.” The Court also noted that if the side effects could not be controlled, Diaz would be switched to another treatment regimen.
The Court rejected Diaz’s argument that the government made only “token” efforts to take his medication voluntarily. The Court noted that Diaz had refused medication since 2008. The Court further noted that psychotherapy is not an effective alternative to treat schizophrenia in the absence of medication, because schizophrenia is caused by a biological condition, a chemical imbalance.
After reviewing at length the expert reports regarding Diaz’s schizophrenia, and statistical studies regarding the effectiveness of medication, the Court found a “substantial likelihood that anti-psychotic medication will restore Diaz to competency,” and that this medication “is not substantially likely to cause side effects that would interfere with Diaz’s ability to assist counsel.” The Court credited expert opinions that side effects “easily can be controlled with supplemental medication.” The Court also noted that if the side effects could not be controlled, Diaz would be switched to another treatment regimen.
The Court rejected Diaz’s argument that the government made only “token” efforts to take his medication voluntarily. The Court noted that Diaz had refused medication since 2008. The Court further noted that psychotherapy is not an effective alternative to treat schizophrenia in the absence of medication, because schizophrenia is caused by a biological condition, a chemical imbalance.
Diaz: Freedom qualified as "thing of value"
In U.S. v Townsend, No. 09-12 (Jan. 13, 2011), the Court affirmed convictions of a Miami-Dade County corrections officer, convicted for giving a defendant on pretrial release greater freedoms in exchange for bribes.
The Court found that giving greater freedom to a defendant on pretrial release qualified as a “thing of value of $5,000 or more” for purposes of the bribery statute, 18 U.S.C. § 666. The Court held that a thing of value can be “intangible.” Further, because the monetary value of the bribes paid to Townsend totaled $5,280, the value of this intangible (the defendant’s greater freedom) exceeded $5,000.
The Court rejected sufficiency of the evidence challenges to Townsend’ remaining convictions for obstruction of justice, finding that phone calls Townsend made to the defendant to warn him of a pending search of his home, and other evidence, proved these violations.
The Court found that giving greater freedom to a defendant on pretrial release qualified as a “thing of value of $5,000 or more” for purposes of the bribery statute, 18 U.S.C. § 666. The Court held that a thing of value can be “intangible.” Further, because the monetary value of the bribes paid to Townsend totaled $5,280, the value of this intangible (the defendant’s greater freedom) exceeded $5,000.
The Court rejected sufficiency of the evidence challenges to Townsend’ remaining convictions for obstruction of justice, finding that phone calls Townsend made to the defendant to warn him of a pending search of his home, and other evidence, proved these violations.
Monday, January 10, 2011
Ruff: Appeal Waiver is valid
In U.S. v. Ruff, No. 09-16304 (Jan. 5, 2011), the Court dismissed an appeal because the defendant signed an appeal waiver in connection with his guilty plea.
The Court noted that appeal waivers are enforceable if they are knowing and voluntary. Here, Ruff understood the full significance of his appeal waiver.
The Court noted two exceptions to Ruff's appeal waiver: the imposition of a sentence above the statutory maximum, or an upward departure. Because Ruff pled guilty to, inter allia, possession of a firearm in relation to a drug trafficking crime, an offense for which the statutory maximum was life, and to possession of firearms as a convicted felon, which also carried a maximum of life because Ruff qualified as an armed career criminal, and because his sentence was 19 years, Ruff’s sentence did not exceed the statutory maximum.
The Court rejected Ruff’s argument that the erroneous imposition of a consecutive sentence resulted in an upward departure, and therefore was not subject to his appeal waiver. The Court noted that Ruff’s sentence was below the Guideline range, and therefore was not an upward departure. The Court added that Ruff’s consecutive sentence challenge was now foreclosed by the Supreme Court’s 2010 decision in Abbott v. U.S
This e-mail contains PRIVILEGED and CONFIDENTIAL information intended only for use of the addressee(s) named above. If you are not the intended recipient of this e-mail, or an authorized employee or agent responsible for delivering it to the intended recipient, you are hereby notified that any dissemination or copying of this e-mail is strictly prohibited. If you have received this e-mail in error, please notify us by reply e-mail. Thank you for your cooperation.
The Court noted that appeal waivers are enforceable if they are knowing and voluntary. Here, Ruff understood the full significance of his appeal waiver.
The Court noted two exceptions to Ruff's appeal waiver: the imposition of a sentence above the statutory maximum, or an upward departure. Because Ruff pled guilty to, inter allia, possession of a firearm in relation to a drug trafficking crime, an offense for which the statutory maximum was life, and to possession of firearms as a convicted felon, which also carried a maximum of life because Ruff qualified as an armed career criminal, and because his sentence was 19 years, Ruff’s sentence did not exceed the statutory maximum.
The Court rejected Ruff’s argument that the erroneous imposition of a consecutive sentence resulted in an upward departure, and therefore was not subject to his appeal waiver. The Court noted that Ruff’s sentence was below the Guideline range, and therefore was not an upward departure. The Court added that Ruff’s consecutive sentence challenge was now foreclosed by the Supreme Court’s 2010 decision in Abbott v. U.S
This e-mail contains PRIVILEGED and CONFIDENTIAL information intended only for use of the addressee(s) named above. If you are not the intended recipient of this e-mail, or an authorized employee or agent responsible for delivering it to the intended recipient, you are hereby notified that any dissemination or copying of this e-mail is strictly prohibited. If you have received this e-mail in error, please notify us by reply e-mail. Thank you for your cooperation.
Harvey: Not Ineffective to concede client's guilt?
In Harvey v. Warden, No. 08-15868 (Jan. 6, 2011), the Court affirmed the denial of habeas relief to a Florida inmate sentenced to death for 1985 murders.
The Court found that Harvey’s defense counsel was not constitutionally ineffective in failing, during jury selection, to strike a juror for cause, or peremptorily, once the juror admitted that based on news accounts of the defendant’s confession she believed he was guilty. The Court noted that it would not presume that counsel failed to consult with the defendant on this point, nor that counsel was ineffective. The Court noted that counsel could reasonably have believed that in light of overwhelming evidence of guilt, the focus should be on the penalty phase, for which this juror might be reasonably receptive to arguments to spare the defendant’s life.
The Court recognized that the Supreme Court’s precedent could be read to presume prejudice when defense counsel, as Harvey’s counsel did, concedes his client’s guilt at trial without first consulting the defendant on this strategy. But the decision could also be read to make consent irrelevant. Accordingly, Harvey failed to show that the Florida Supreme Court’s application of Supreme Court caselaw was unreasonable. The Court found no actual prejudice in counsel’s tactical concession of guilt, in light of the overwhelming evidence.
The Court found that counsel’s "good person" strategy in the penalty phase was not constitutionally deficient on account of an inadequate investigation of the defendant’s past history, noting that counsel called 16 personal-history witnesses in Harvey’s defense.
Finally, the Court rejected the argument that counsel inadequately investigated Harvey’s mental history. The Court found that counsel was not unreasonable in relying on his expert’s advice that Harvey suffered from no organic brain damage. The Court noted the absence of a "smoking gun" that might have alerted counsel that his expert’s view was mistaken.
The Court found that Harvey’s defense counsel was not constitutionally ineffective in failing, during jury selection, to strike a juror for cause, or peremptorily, once the juror admitted that based on news accounts of the defendant’s confession she believed he was guilty. The Court noted that it would not presume that counsel failed to consult with the defendant on this point, nor that counsel was ineffective. The Court noted that counsel could reasonably have believed that in light of overwhelming evidence of guilt, the focus should be on the penalty phase, for which this juror might be reasonably receptive to arguments to spare the defendant’s life.
The Court recognized that the Supreme Court’s precedent could be read to presume prejudice when defense counsel, as Harvey’s counsel did, concedes his client’s guilt at trial without first consulting the defendant on this strategy. But the decision could also be read to make consent irrelevant. Accordingly, Harvey failed to show that the Florida Supreme Court’s application of Supreme Court caselaw was unreasonable. The Court found no actual prejudice in counsel’s tactical concession of guilt, in light of the overwhelming evidence.
The Court found that counsel’s "good person" strategy in the penalty phase was not constitutionally deficient on account of an inadequate investigation of the defendant’s past history, noting that counsel called 16 personal-history witnesses in Harvey’s defense.
Finally, the Court rejected the argument that counsel inadequately investigated Harvey’s mental history. The Court found that counsel was not unreasonable in relying on his expert’s advice that Harvey suffered from no organic brain damage. The Court noted the absence of a "smoking gun" that might have alerted counsel that his expert’s view was mistaken.
Wednesday, January 05, 2011
Mejia: "Conviction" under Immigration law
In Mejia v. U.S. Dep’t of Homeland Security, No. 09-14273 (Jan. 4, 2011), the Court held that a prior guilty plea, followed by a finding of guilt and a sentence of time served, in Florida court, qualified as a prior “conviction” for purposes of the immigration laws. Consequently, Mejia, an alien, was ineligible from protection from removal from the United States.
The Court recognized that no formal punishment was imposed. However, a finding of guilt, coupled with a sentence for time served, qualified as a “conviction,” because these two together brought finality to the case and constituted an “adjudication.” Moreover, there was no indication that adjudication had been withheld.
The Court recognized that under Florida law, a sentence of time served is not a sentence. However, federal law, not Florida law, controlled the inquiry. Under federal law, time served qualifies as a sentence.
The Court recognized that no formal punishment was imposed. However, a finding of guilt, coupled with a sentence for time served, qualified as a “conviction,” because these two together brought finality to the case and constituted an “adjudication.” Moreover, there was no indication that adjudication had been withheld.
The Court recognized that under Florida law, a sentence of time served is not a sentence. However, federal law, not Florida law, controlled the inquiry. Under federal law, time served qualifies as a sentence.
Tuesday, January 04, 2011
Gonzalez: Confrontation Clause Error Was Harmless
In Gonzalez v. Sec. Fla. Dep’t of Corrections, No. 09-15599 (Jan. 3, 2011), the Court affirmed the denial of habeas relief to a Florida inmate sentenced to death for a 1992 murder.
The Court did not reach the issue whether Gonzalez’ post-collateral motion in Florida State Court was “properly filed” for purposes of tolling the federal habeas statute of limitations, and instead denied the petition on the merits.
The Court rejected the argument that the Confrontation Clause error in admitting at trial the confession of Gonzalez’ non-testifying co-defendants was not harmless error. The Court agreed with the Florida Supreme Court that in light of Gonzalez’ own confession, and other evidence, the error in admitting this evidence was harmless.
The Court also rejected the argument that the Florida state courts erroneously disallowed two of Gonzalez’ peremptory challenges. The Court noted that the Supreme Court has held that entitlement to peremptory challenges is a matter of State law, and that there is no constitutional right to peremptory challenges. Consequently, the erroneous denial of a peremptory challenge cannot establish a constitutional violation.
The Court did not reach the issue whether Gonzalez’ post-collateral motion in Florida State Court was “properly filed” for purposes of tolling the federal habeas statute of limitations, and instead denied the petition on the merits.
The Court rejected the argument that the Confrontation Clause error in admitting at trial the confession of Gonzalez’ non-testifying co-defendants was not harmless error. The Court agreed with the Florida Supreme Court that in light of Gonzalez’ own confession, and other evidence, the error in admitting this evidence was harmless.
The Court also rejected the argument that the Florida state courts erroneously disallowed two of Gonzalez’ peremptory challenges. The Court noted that the Supreme Court has held that entitlement to peremptory challenges is a matter of State law, and that there is no constitutional right to peremptory challenges. Consequently, the erroneous denial of a peremptory challenge cannot establish a constitutional violation.
Thursday, December 30, 2010
Nix: Resisting Arrest with Violence is "Violent Felony"
In U.S. v. Nix, No. 09-15335 (Dec. 30, 2010), the Court adopted its unpublished opinion in U.S. v. Hayes, and held that a prior Florida conviction for resisting an arresting officer with violence, in violation of Fla. Stat. § 843.01, qualifies as a “violent felony” of purposes of the Armed Career Criminal Act, 18 U.S.C. § 924(e). The Court therefore found that Nix had the requisite three prior felony convictions and affirmed the 15-year sentence.
Tuesday, December 28, 2010
Gowdy: Violation of federal detainer is "escape"
In U.S. v. Gowdy, No. 09-15999 (Dec. 27, 2010), the Court held that, even though the defendant was never in federal prison, but only subject to a federal detainer after his federal conviction and sentencing, he could still be guilty of “escape from custody” under 18 U.S.C. § 751(a).
Gowdy was mistakenly released from State custody, at a time he was subject to a federal detainer to serve a federal sentence. Gowdy contended that his failure to turn himself in did not constitute “escape.”
The Court noted the “broad scope” of § 751(a), which reaches non-violent walkaways and failure to report for incarceration, or to return to custody. Here, Gowdy was in “constructive” federal custody by virture of a process issued under the laws of the United States by a federal district court. It did not matter that he was not “physically confined in an institution at the time of escape.”
Gowdy was mistakenly released from State custody, at a time he was subject to a federal detainer to serve a federal sentence. Gowdy contended that his failure to turn himself in did not constitute “escape.”
The Court noted the “broad scope” of § 751(a), which reaches non-violent walkaways and failure to report for incarceration, or to return to custody. Here, Gowdy was in “constructive” federal custody by virture of a process issued under the laws of the United States by a federal district court. It did not matter that he was not “physically confined in an institution at the time of escape.”
Rodriguez: Unauthorized Access of Computer
In U.S. v. Rodriguez, No. 09-15265 (Dec. 27, 2010), the Court affirmed a conviction for unauthorized accessing of a computer database, in violation of 18 U.S.C. § 1030(a)(2)(B).
Rodriguez was an employee of the Social Security Administration who made unauthorized use of Social Security computer databases to obtain personal information about persons he knew. The defendant claimed that his conduct did not violate the statute because he did not use the data for financial gain, or to commit a crime. The Court rejected the argument, pointing out that the (misdemeanor) statute criminalizes the unauthorized accessing of databases, and does not require financial gain, or commission of a crime.
Rodriguez also challenged the upward variance he received as unreasonable. The Court found that a variance was warranted by the number of victims and the extensive nature of Rodriguez’ unauthorized access.
Rodriguez was an employee of the Social Security Administration who made unauthorized use of Social Security computer databases to obtain personal information about persons he knew. The defendant claimed that his conduct did not violate the statute because he did not use the data for financial gain, or to commit a crime. The Court rejected the argument, pointing out that the (misdemeanor) statute criminalizes the unauthorized accessing of databases, and does not require financial gain, or commission of a crime.
Rodriguez also challenged the upward variance he received as unreasonable. The Court found that a variance was warranted by the number of victims and the extensive nature of Rodriguez’ unauthorized access.
Powell: District Court Must Hold Live Hearing to Reverse Magistrate Judge Credibility Determinations
In U.S. v. Powell, No. 09-11612 (Dec. 27, 2010), the Court vacated a conviction because the district judge declined to adopt a Magistrate Judge’s report and recommendation without holding a hearing.
Powell moved to suppress statements he made following his arrest, claiming that he was not read his Miranda rights after he requested counsel. A Magistrate Judge held an evidentiary hearing. After hearing the conflicting testimony of government and defense witnesses, the Magistrate Judge credited the defense accounts, and found the government’s witnesses “unconvincing.” The Magistrate Judge recommended a ruling in favor of Powell’s motion to suppress. The government filed objections with the district court. The district court, without holding a hearing, but after listening to a recording of the hearing before the Magistrate Judge, overruled the Magistrate Judge, and denied the motion to suppress.
The Court held that when a district court squarely rejects the credibility findings of a Magistrate Judge, it must hear the disputed testimony live. The Court therefore vacated Powell’s conviction, and remanded the case. The Court noted that the district court remained free to reject the Magistrate Judge’s determinations in whole or in part after holding a new hearing.
Powell moved to suppress statements he made following his arrest, claiming that he was not read his Miranda rights after he requested counsel. A Magistrate Judge held an evidentiary hearing. After hearing the conflicting testimony of government and defense witnesses, the Magistrate Judge credited the defense accounts, and found the government’s witnesses “unconvincing.” The Magistrate Judge recommended a ruling in favor of Powell’s motion to suppress. The government filed objections with the district court. The district court, without holding a hearing, but after listening to a recording of the hearing before the Magistrate Judge, overruled the Magistrate Judge, and denied the motion to suppress.
The Court held that when a district court squarely rejects the credibility findings of a Magistrate Judge, it must hear the disputed testimony live. The Court therefore vacated Powell’s conviction, and remanded the case. The Court noted that the district court remained free to reject the Magistrate Judge’s determinations in whole or in part after holding a new hearing.
Subscribe to:
Posts (Atom)