Tanzi: Counsel not ineffective in failing to present evidence of XYY abnormality

In Tanzi v. Sec., Fla. Dep’t of Corrections, No. 13-12421 (Nov. 19, 2014), the Court affirmed the denial of habeas relief to a Florida inmate sentenced to death for a murder committed in 2000. The Court rejected the argument that counsel was ineffective in failing, among other things, to present evidence of Tanzi’s XYY abnormality. The Court noted that men with XYY chromosones tend to have diminished socialization skills, but do not automatically become antisocial. The Court also noted a defense mental expert’s testimony that knowledge that Tanzi had an extra & chromosome would not have changed any of the opinions he expressed during the penalty phase. Tanzi therefore failed to satisfy the prejudice prong of Strickland’s ineffective assistance of counsel standard.

Spencer: Misapplication of Career Offender Guideline is not cognizable under 2255.

In Spencer v. U.S., No. 10-10686 (Nov. 14, 2014), the Court (en banc) (5-4) held that a defendant cannot attack a misapplication of the career offender Guideline in a collateral attack on his sentence under 28 U.S.C. § 2255. The Court first noted that it had erroneously granted Spencer a certificate of appealability, because such a certificate may only issue if the applicant has made a “substantial showing of the denial of a constitutional right.” Here, there was no underlying constitutional issue. Nevertheless, the Court declined to vacate the certificate “at this late hour,” because the matter had been litigated before a panel and was now before the en banc Court. The Court warned that it would not be so lenient in the future. Turning to the merits, the Court noted that under § 2255, a district court lacks the authority to correct a claimed sentencing error unless the claimed error constitutes a “fundamental defect” which inherently results in a “complete miscarriage of justice.” The Court held that the Guideline error Spencer alleged did not qualify as a complete miscarriage of justice. The Court pointed out that Spencer’s sentence was below the statutory maximum sentence for his offense. The sentence was therefore “lawful.” Because the Guidelines are advisory, the district court could reimpose the same sentence on remand, and the error therefore cannot be a complete miscarriage of justice. The Court noted that even if Spencer’s sentence on direct appeal would be viewed as “substantively unreasonable” – the incorrect application of the career offender Guideline nearly doubled his Guideline range, from a range of 70-87 months to a range of 151-180 months – this would not qualify as a “complete miscarriage of justice” because the sentence was still below the statutory maximum. The Court declined to equate “legal innocence” of a prior qualifying conviction under the career offender Guideline with “factual innocence,” because Spencer still committed a “serious” prior crime: felony child abuse (at the age of 18, Spencer had sex with a 14-year old). The sentencing judge could still consider the seriousness of this conviction at resentencing. The Court distinguished cases where a prior conviction had been vacated, finding that this vacatur constitutes a "new fact" with which the petitioner can challenge his sentence. Spencer merely presented an argument of "legal innocence." (Martin, J,, dissenting noted that the ruling will increase costs in the criminal justice system to the extent that the U.S. taxpayer will have to spend dozens of thousands of dollars incarcerating Spencer for time he should not be in prison). (Jordan, J., dissenting, argued that the mistaken career offender designation was a complete miscarriage of justice, noting that the 81-month increase in Spencer's sentence is roughly the time needed to complete both college and law school).

Lucas: No requirement for affirmative instruction that jury unanimity is not required for mitigating factor

In Lucas v. Warden, No. 13-11909 (Nov. 12, 2014), the Court affirmed the denial of habeas relief to a Georgia inmate sentenced to death for three 1998 murders. The Court rejected Lucas’ ineffective assistance of counsel claim, finding that counsel did not fail to develop expert testimony that Lucas’ intoxication on the day of the murders rendered his confession unreliable. The Court pointed out that Lucas professed and exhibited a memory of the murders during his videotaped confession. The Court also rejected the argument that counsel failed to present Lucas life history as mitigation, finding that quite the opposite counsel presented substantial testimony of family history. The Court also rejected Lucas’ Brady claim, agreeing with the Georgia state courts that the testimony of a witness would have been cumulative at best. The Court rejected the request for a new trial based on the prosecutor’s improper statement during cross-examination during the penalty phase that prison escapes happen “every day.” The Court noted that the defense witness challenged this statement, and that the statement was “far less egregious” than what said by prosecutors in other cases in which no prejudice was held to have occurred. The Court rejected the argument that the jury should have been instructed that mitigating factors need not be found unanimously. The Court recognized that it is error to instruct a jury that it must agree unanimously on mitigating factors. But it found no requirement that an affirmative instruction must be given when the trial court has not otherwise suggested that unanimity is mandatory.

Cole: Habeas petition untimely

In Cole v. Warden, Georgia State Prison, No. 13-12635 (Oct. 6, 2014), the Court held that a habeas petition was correctly dismissed for being untimely. Cole claimed that a habeas petition filed more than fifteen years after the limitations period had expired should be deemed timely, because he only discovered a violation at his guilty plea at this time. The Court noted that the written plea form Cole signed referred to the constitutional rights that Cole claimed were not mentioned at his plea colloquy. Cole failed to establish due diligence in discovering the violation. The Court also rejected Cole’s equitable tolling argument, again finding he failed to exercise reasonable diligence.

Winthrop-Redin: Allegations of death threats to plead guilty "incredible"

In Winthrop-Redin v. U.S., No. 13-10107 (Sept. 23, 2014), the Court affirmed the denial of 2255 relief to a defendant who pled guilty to possessing cocaine with intent to distribute, rejecting the claim that the defendant was coerced to plead guilty by death threats from other members of the crew of ths ship on which the cocaine was seized. The Court found that the claim that the plea was involuntary was based only on conclusory and incredible allegations, noting that the defendant at his plea colloquy said that he was not pressured, and waited more than two years after he pled guilty to say anything about alleged threats. Further, the defendant did not specifically allege that he told his attorney about the death threats.

Reed: Failure to investigate "incredible" witness not deficient

In Reed v. Sec., Fla. Dep’t of Corrections, No. 13-10900 (Sept. 24, 2014), the Court reversed a grant of habeas relief to a Florida inmate who claimed counsel was deficient in failing to investigate and call a witness at trial. The Court noted that the witness was unavailable around the time of trial. In addition, the witness, who had eight felony convictions, admitted he had memory problems. The State court had reasonable grounds for concluding that the witness was not credible. Further, the witness’ testimony would not have directly exculpated Reed. Finally, there was substantial remaining evidence implicating Reed.

Mathis: Search of 2011 cellphone valid even if based on 2004 calls

In U.S. v. Mathis, No. 13-13109 (Sept. 24, 2014), the Court affirmed convictions of enticing a minor to engage in sexual activity, and the 480-month sentence. The Court rejected the argument that the search of Mathis’ cellphone violated his Fourth Amendment rights because the affidavit submitted in support misleadingly claimed that one could recover information from a different cellphone in 2011 evidence of a crime committed in 2004. The affidavit noted that Mathis had maintained the same phone number since 2004, and that law enforcement reasonably believed that the cell phone would contain incriminating information. Alternatively, the Court found that the police relied in good faith on the search warrant. The Court also rejected the argument that a second search of the cellphone was invalid because it occurred eight months after the expiration of the warrant’s ten-day search period. The Court noted that a search conducted after a warrant’s expiration date does not necessarily require suppression. The Court rejected the argument that the Confrontation Clause was violated when the district court admitted in evidence a non-testifying victim’s text messages. The text messages were not statements to government officers, and were not made under circumstances that would lead an objective witness reasonably to believe that they would be available for use at a later trial. Turning to sentencing, the Court rejected the argument that the U.S.S.G. § 2G2.1(b)(6) enhancement for an offense involving a computer did not apply because Mathis merely used a cellphone. Deciding an issue of first impression, the Court held that the electronic high speed data processing of a cellphone meets the definition of a computer. The Court also rejected Mathis’s argument that a prior Florida conviction for lewd or lascivious conduct with a minor did not qualify as the basis for a aggravating sentence enhancement, because the offense did not require actual touching. The court noted that 18 U.S.C. § 2251(e) merely requires a prior offense “relating to” sexual abuse of a minor.

Kirk: "Remaining in" burglaries qualify as ACCA predicates

In U.S. v. Kirk, No. 13-15103 (Sept. 16, 2014), the Court held that prior burglary offenses counted as violent felonies under the Armed Career Criminal Act (ACCA). The Court rejected the argument that because the Florida burglary statute criminalized merely “remaining in” a structure with the intent to burglarize, as distinct from “entering” the premises, it did not qualify as a “violent felony.” The Court cited contrary Supreme Court and Circuit precedent involving “remaining in” burglaries, involving the “same risks” of injury. The Court also rejected the argument that the prior convictions were not committed on occasions different from one another. “[T]he charging documents submitted by the government show that Kirk pled guilty to burglarizing seven different dwellings, located at seven different addresses and owned by seven different people, on or about separate dates.” Finally, the Court rejected the argument that the government failed to prove that it is unconstitutional for a federal statute to punish purely intrastate conduct like firearm and ammunition possession that “substantially affected” interstate commerce. The Court cited precedent holding that a “minimal nexus” of the firearm being manufactured outside the state satisfied the jurisdictional element of § 922(g), which in turn defeated a challenge to the statute’s constitutionality.

Samak: 2255 savings clause does not apply

In Samak v. Warden, FCC Coleman, No. 13-12161 (Sept. 10, 2014), the Court affirmed the denial of habeas relief, holding that the savings clause of 28 U.S.C. § 2255(e) did not authorize Samak to file a habeas petition under 28 U.S.C. § 2241. Samak claimed that the district court did not have authority to impose a life sentence without a jury recommendation for his violation of the Organized Crime Control Act (OCCA). The Court noted one requirement for the § 2255 savings clause to apply is that an argument be foreclosed by circuit precedent. Here, to the contrary, “binding Fifth Circuit precedent at the time of sentencing actually supported his claim that he should not have been sentenced to life imprisonment.”

Bates: Prayer did not prejudice trial

In Bates v. Sec., Fla. Dep’t of Corrections, No. 13-11882 (Sept. 5, 2014), the Court denied habeas relief to a Florida inmate sentenced to death for a 1982 murder. The Court rejected Bates’ claim that his trial counsel was ineffective for failing to object to an opening prayer, delivered in the presence of the jury, by a minister of the church where, trial testimony later showed, the victim’s funeral service was held. Bates claimed that this prayer urged the jury to improperly base its verdict on divine wisdom and guidance instead of the evidence adduced at trial. Rejecting this claim as speculative, the Court declined to fault trial counsel for failing to move for a mistrial. The Court also rejected the argument that the sentencing jury should have been informed of the defendant’s parole ineligibility. The Court noted that this is required only where the defendant is, as a matter of law, absolutely ineligible for parole, and the State places his future dangerousness at issue.

Green: No 3582(c)(2) sentence reduction for crack cocaine offender held accountable for 32.1 kilos

In U.S. v. Green, No. 12-12952 (Sept. 4, 2014), the Court affirmed the denial of a reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2) for a defendant convicted of crack cocaine trafficking. Green claimed he was eligible for a sentence reduction based on amendments to the crack cocaine Guidelines that took effect after his original sentencing. The district court denied relief because it found that at the original sentencing it had held Green accountable for a drug quantity in excess of 10 kilograms, and as much as 32.1 kilograms – quantities for which no reduction would apply under the amended Guidelines. The Court noted that since a § 3582(c)(2) resentencing is not de novo, a district court may not make any new finding inconsistent with a finding it made in the original sentence proceeding. Thus, here the district court properly clarified that it had held Green accountable for 32.1 kilograms of cocaine base. The Court also rejected Green’s reliance on a statement it had made about the drug quantity in an earlier appeal in his case. The Court found that it had merely assumed that a Guideline amendment lowered Green’s guideline range, he was still not entitled to a sentence reduction. But this assumption by the Court did not subsequently bind the district court.

Campbell: Not Credit for Overhead in Loss Amount Calculation

In U.S. v. Campbell, No. 12-11952 (Sept. 3, 2014), the Court affirmed the conviction and sentence of a defendant convicted of defrauding the State of Alabama of several million dollars through a fraudulent institute. The Court rejected the argument that the “loss amount” that was the basis for a sentence enhancement should have been reduced, based on the legitimate services his institute rendered to the State of Alabama. The Court found ample support in the record that the institute “was a sham organization which served no legitimate purpose.” The Court rejected Campbell’s argument that the government should have sifted through years of bank records and itemized every single transaction that should be chalked up as a loss to the victim. “When, as here, a defendant’s conduct was permeated with fraud, a district court does not err by treating the amount that was transferred from the victim to the fraudulent enterprise as the starting point for calculating the victim’s pecuniary harm.” The Court noted that the district court correctly granted a partial credit for legitimate services rendered by the institute. The Court added, however, that Campbell was not entitled to a credit for the operating expenses of the institute, because many of these expenditures played some role in perpetuating the scheme.

Godwin: No error in dismissal of jurors

In U.S. v. Godwin, No. 13-10184 (Sept. 3, 2014), the Court affirmed convictions for RICO racketeering and RICO conspiracy, in violation of 18 U.S.C. §§ 1962(c) & (d). The Court rejected the argument that the district court, before the trial commenced, erroneously dismissed a juror who had been selected to serve on the jury. The Court noted that the juror was visibly distraught about having to serve on a four and half-week trial away from her 14-month old son. The Court also rejected the argument that the district court, during jury deliberations, erroneously dismissed a juror who, according to all other jurors, was refusing to follow the judge’s instructions. The Court noted that this was a proper ground for dismissal, so long as there was no substantial possibility, as here, that the juror was basing her decision on the sufficiency of the evidence. The Court also rejected one defendant’s challenge to the sufficiency of the evidence, pointing out that his sale of a diamond stolen during a home invasion was “money laundering,” because it was designed to promote the ultimate objective of the conspiracy – to turn jewelry into cash. Although the defendant “was not a bona fide, dog-tag wearing member of the organization,” he helped the gang commit various crimes.

Haynes: Invited error where defendant appeals the very sentence he invited

In U.S. v. Haynes, No 12-12689 (Aug. 22, 2014), the Court held that the doctrine of “invited error” precluded Haynes from challenging his categorization as a “career offender” in a separate sentence on a separate case from the one for which the district court amended his sentence at resentencing. Haynes was charged with a total of five crimes, in two separate federal prosecutions. He pled guilty to all five crimes in one proceeding, and was sentenced at a single sentencing proceeding. After an unsuccessful appeal, Haynes filed a § 2255 motion, arguing that one of his sentences exceeded the statutory maximum, and further arguing that he was erroneously sentenced as a career offender. At his resentencing, the district court announced that it agreed that one sentence exceeded the statutory maximum, and defense counsel acknowledged that the court was “not going to touch the other case.” Defense counsel urged the court to impose a 322 month sentence. The district court imposed a 322-month sentence. On appeal, the Court refused to entertain the challenge to the career offender designation. The Court noted that defense counsel had remarked that the district court would “not . . . touch the other case,” and would not now fault the district court for abiding by counsel’s request. Further “defense counsel herself proposed the amended sentence lengths.” “Because Haynes appeals the very sentence he invited the resentencing court to impose, we decline to review the alleged errors.”

Therve: No abuse of discretion in granting mistrial after hung jury

In U.S. v. Therve, No. 13-11879 (Aug. 20, 2014), the Court affirmed a bribery conviction, rejecting the argument that the district court abused its discretion in denying a mistrial at the conclusion of a first trial after the jury was unable to agree on a unanimous verdict, with all but one juror in favor of finding Therve not guilty. The Court found that the following circumstances supported the judge’s decision to declare a mistrial: (1) the jury had deliberated to deadlock in two separate periods of deliberation, including one after receiving an Allen charge; (2) despite the two periods of deliberation, the jury said that had it had been split in the same way since the very beginning; (3) the judge believed the jury to be truthful in its assessment that it was hung; (4) the trial was short and straight-forward; and (5) the judge suggested that he thought that making the jury continue to deliberate after the second note following the Allen charge was coercive. The Court noted that it did not agree with the judge’s decision to reveal to the parties the jury’s numerical split (a split the jury revealed despite a specific instruction not to do so), but held that this did not render improper an otherwise sound decision to declare a mistrial.

Troy: Exclusion of evidence of prison conditions not reason for granting habeas relief from death sentence

In Troy v. Sec., Fla. Dep’t of Corrections, No. 13-10516 (Aug. 15, 2014), the Court affirmed the denial of habeas relief to a Florida death row inmate convicted of a 2001 murder. The Court rejected the argument that, at the penalty phase of the trial, the trial court erroneously testimony from a corrections officer about general conditions for those serving life sentences in Florida prisons. The Court held that, to date, Supreme Court precedent does not require a sentencer to consider this type of testimony. The Court noted that even if the State’s cross-examination of a witness suggested that Troy might use drugs in prison while serving a life sentence, the witness Troy wanted to call “could only speculate about possible incarceration outcomes.” The Court further noted that even if error occurred, it was harmless, because Troy was able to present considerable mitigating evidence, which the jury rejected in light of the aggravating evidence presented. [Martin, J., concurring, stated that de novo review, rather than AEDPA deference, applied to the issue, because it was unclear how Supreme Court precedent applied. However, the concurrence found no basis for granting habeas relief because it agreed with the majority that any error would have been harmless.]

Barsoum: Affirming Oxycodone trafficking conviction and sentence

In U.S. v. Barsoum, No. 13-10710 (Aug. 15, 2014), the Court affirmed the conviction and sentence of a defendant convicted of unlawfully dispensing Oxycodone out of several pharmacies. The Court rejected Barsoum’s challenge to the number of pills for which he was held accountable at sentencing. The Court found no clear error in the district court’s estimate of the number of pills, based on average frequency and the number of pills Barsoum sold over a one-year period. The Court also rejected the argument that statements should not have admitted as non-hearsay co-conspirator statements under Federal Rule of Evidence 801(d). The Court found that the testimony at issue did not relay any out-of-court statement and therefore was not hearsay. Further, the government had sufficiently established the existence of a conspiracy for purposes of Rule 801(d), and the statements at issue were made in furtherance of this conspiracy.

Payne: Alleyne error "harmless" because of uncontroverted evidence of brandishing

In U.S. v. Payne, No. 13-15699 (Aug. 15, 2014), the Court held that the district court committed Alleyne error when it imposed an 84-month mandatory minimum sentence based on its finding that a firearm was brandished during a bank robbery, but the error was harmless because of the “uncontroverted evidence” that a firearm was in fact brandished. Payne pled guilty to bank robbery and to possession of a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A). However, at sentencing, citing Alleyne, Payne objected to the imposition a mandatory consecutive minimum term of 84 months, under § 924(c)(1)(A)(ii), for the brandishing of a firearm. Overruling this objection, the district court relied on evidence at the sentencing hearing that a pistol was pointed at a bank teller during the robbery by one of the robbers, and imposed a consecutive 84-month sentence. The Court noted that because Payne did not admit to the brandishing of a firearm, the district court committed Alleyne error when it made its own brandishing finding. However, Alleyne error, like Apprendi error, was subject to “harmless error” review. Here, the evidence of the brandishing was uncontroverted. Hence, the error was harmless.

Hayes: Sentence of Probation Substantively Unreasonable for defendant who paid $600,000 in bribes

In U.S. v. Hayes, No. 11-13678 (Aug. 12, 2014) (2-1), the Court held that the district court imposed a substantively unreasonable sentence when it imposed a term of probation and no term of incarceration on a defendant who pled guilty to of giving $600,0000 in bribes to a state official to ensure that his company would continue to receive government contracts. The defendant’s guideline range was 135-168 months. The government recommended a substantial assistance downward departure, which would have resulted in a 57-71 months range. At sentencing, after noting the need to avoid unwarranted sentencing disparity, the district court sentenced Hayes to three years’ probation. Though acknowledging “the institutional superiority that district courts possess with regard to sentencing,” the Court vacated the sentence as substantively unreasonable. The Court found that the possibility of unwarranted sentencing disparity did not justify sentencing Hayes to probation, pointing out that of the similarly situated persons identified in a chart prepared by the probation office, the one most closely situated to Hayes – the state official who took his bribes – received a sentence of 78 months. Four of the five others received prison terms, and the only one who did not was responsible for just $300,000 in losses, half of the amount of money Hayes was ordered to pay in restitution.

Madison: No Batson Violation for Alabama Death Row Inmate

In Madison v. Comm., Ala. Dept. of Corrections, No. 13-12348 (Aug. 4, 2014), the Court affirmed the denial of habeas relief to an Alabama death row inmate sentenced to death for a 1985 murder, rejecting the claim of a Batson violation during jury selection. The Court reviewed deferentially the findings of the district court, after an evidentiary hearing, regarding the Batson findings. The Court noted that Madison had put forward a “strong” prima facie case of purposeful discrimination against black jurors. Nonetheless, the Court deferred to the district court’s findings that the reasons for striking black prospective jurors were race-neutral.