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February 21 – February 27, 2009
U.S. Supreme Court, February 24, 2009 US v. Hayes, No. 07-608 Defendant’s conviction for possessing a firearm under 18 U.S.C. section 921 is affirmed, where a domestic relationship between the offender and victim need not be an element of the defendant’s “misdemeanor crime of domestic violence” to trigger Section 921’s possession ban. .
U.S. 1st Circuit Court of Appeals, February 24, 2009 US v. Rodriguez-Lozada , No. 06-1988 Defendant’s convictions and sentences are vacated in part and otherwise affirmed where: 1) district court properly denied motion to suppress evidence for lack of standing as he had no reasonable expectation of privacy in the area searched; 2) motion for severance was properly denied as untimely; and 3) although evidence was sufficient to uphold most counts of defendant’s conviction, there was insufficient evidence to uphold convictions for possession of a firearm in furtherance of drug trafficking and aiding and abetting possession. Co-defendant Rivera’s sentence is affirmed where: 1) district court’s drug quantity calculation for sentencing purposes was well-supported by evidence and not clearly erroneous; 2) court correctly imposed statutory sentencing enhancement for co-defendant Rivera’s leadership role; and 3) the sentence was reasonable in light of his particular circumstances. .
U.S. 1st Circuit Court of Appeals, February 26, 2009 US v. Glover , No. 07-1983
Conviction and sentence for being a felon in possession of a firearm is affirmed where: 1) the prosecutor’s closing statements were not improper; 2) the court did not err in classifying defendant’s prior conviction for assault and battery with a dangerous weapon as a crime of violence under the sentencing guidelines; and 3) the sentence imposed was reasonable.
U.S. 1st Circuit Court of Appeals, February 26, 2009 US v. Rivera , No. 07-2687
Direct appeal from sentence is granted where the district court may have underestimated the scope of its discretion to vary from the statutory sentencing guidelines and thus may have have imposed a lesser sentence. The case is remanded to give the district court an opportunity to resentence if it deems appropriate in light of the additional latitude furnished by Kimbrough.
U.S. 1st Circuit Court of Appeals, February 26, 2009 US v. Nutter, No. 08-1279
Conviction and sentence for arson and mail fraud is affirmed where: 1) defendant failed to show there was plain error in instructing the jury on the interstate commerce element of the arson count; and 2) the district court had no choice but to impose the statutory mandatory minimum sentence. The defendant waived a Speedy Trial Act claim by failing to move for dismissal on that ground before trial.
U.S. 1st Circuit Court of Appeals, February 27, 2009 Poirier v. Massachusetts Dept. of Corr. , No. 08-1290
In a civil rights action, district court’s dismissal of plaintiff’s complaint for failure to state a claim is affirmed where enforcement of a Department of Corrections rule prohibiting unauthorized personal contact with former inmates did not violate plaintiff’s constitutional right to intimate association because the rule is a rational means of promoting the legitimate government interest in prison security. District court’s dismissal of plaintiff’s suit against the DOC on sovereign immunity grounds and claim for damages is affirmed. Read more…
U.S. 1st Circuit Court of Appeals, February 27, 2009 Espinoza v. Sabol, No. 08-1712
District court’s order dismissing plaintiff’s habeas corpus petition is affirmed where: 1) the time at liberty doctrine cannot be applied to adjust plaintiff’s sentence for time spent erroneously at liberty as his mistaken release occurred only because plaintiff earlier escaped from custody, causing the need to process him again; and 2) the Bureau of Prisons did not err in determining that his sentences were to run consecutively. Read more…
U.S. 2nd Circuit Court of Appeals, February 24, 2009 US v. Ayon-Robles, No. 07-0785 Sentence is reversed and remanded where sentencing enhancement under the United States Sentencing Guidelines for a prior aggravated felony should not be applied, as neither of defendant’s two felony convictions for simple drug possession are considered an aggravated felony justifying enhancement. Read more…
U.S. 2nd Circuit Court of Appeals, February 25, 2009 US v. Parker , No. 07-0620 Conviction for conspiracy to possess crack cocaine with the intent to distribute is affirmed where the buyer-seller exception does not apply to conspiracy with regard to other transfers of either the seller or the buyer and does not apply to a finding that the defendants conspired with the selling group to distribute crack cocaine. Judgment against co-defendant Fuller is affirmed, but his case is remanded for reconsideration of his sentence in light of Kimbrough. Read more…
U.S. 2nd Circuit Court of Appeals, February 25, 2009 US v. Johnson , No. 08-2296 Conviction and sentence for being a felon in possession of a firearm is affirmed where the district court’s application of a sentencing enhance under the United States Sentencing Guidelines and reliance on the application note contained in the 2006 edition of the Guidelines does not violate the Ex Post Facto Clause of the Constitution as the application note served only to clarify the scope of the pre-existing guideline. Read more…
U.S. 2nd Circuit Court of Appeals, February 27, 2009 Espinal v. Goord, No. 07-0612 In an action involving a prison grievance, district court’s grant of defendant’s motion for summary judgment on the ground that plaintiff failed to exhaust administrative remedies under the Prison Litigation Reform Act by omitting the names of defendants from his prison grievance is reversed and remanded where: 1) subsequent to the district court decision, the Supreme Court held in Jones v. Bock that exhaustion under the PLRA does not require a prisoner’s grievance to identify the parties responsible for misconduct unless an identification requirement is provided in the state’s grievance procedures; and 2) New York grievance procedures do not require an inmate to specifically name responsible parties. Dismissal of plaintiff’s retaliation claim is reversed and denial of plaintiff’s motion for new trial is affirmed. Read more…
U.S. 3rd Circuit Court of Appeals, February 23, 2009 US v. Blackmon, No. 07-4237 Sentence for conspiracy to distribute cocaine and money laundering is affirmed where: 1) there was no clear error in the district court’s application of U.S.S.G. section 2S1.1(a)(1), as defendant was a direct money launderer; and 2) the cocaine conspiracy was properly incorporated as relevant conduct under the sentencing guideline as the cocaine distribution and the overarching cocaine conspiracy involved a common scheme or plan. Read more…
U.S. 4th Circuit Court of Appeals, February 24, 2009 US v. Rosen, No. 08-4358 In a challenge to rulings admitting classified documents in an espionage prosecution, the rulings are affirmed, where the offenses were predicated on the existence of those documents, and the Court of Appeals had jurisdiction under the Classified Information Procedures Act. Read more…
U.S. 5th Circuit Court of Appeals, February 25, 2009 US v. Franklin, No. 07-10680 Defendants’ drug and firearm convictions are affirmed, where: 1) the extensive evidence was sufficient to support the drug conspiracy count; and 2) the jury could infer Defendant’s knowledge of the gun in his car from circumstantial evidence. Read more…
U.S. 5th Circuit Court of Appeals, February 26, 2009 US v. Ward, No. 08-50114 Defendant escaped prisoner’s firearms possession conviction is affirmed where a fugitive does not have a Fourth Amendment right of privacy in his motel room, and thus the room is subject to warrantless search. Read more…
U.S. 6th Circuit Court of Appeals, February 24, 2009 US v. Holden, No. 07-5573, 07-5574 Defendants’ conviction for impeding an EPA investigation was affirmed, where the District Court did not abuse its discretion by excluding evidence of a witness’s drug use that did not clearly affect his ability to recall events. Read more…
U.S. 6th Circuit Court of Appeals, February 25, 2009 Fleming v. Metrish, No. 07-2311 The District Court’s granting of Petitioner’s habeas petition claiming that his confession was inadmissible is reversed, where the state appellate court did not unreasonably apply Michigan v. Mosley, 423 U.S. 96 (1975). Read more…
U.S. 6th Circuit Court of Appeals, February 25, 2009 Drogosch v. Metcalf, No. 08-1249 In a 42 U.S.C. section 1983 action based on a false arrest, denial of summary judgment for Defendant based on qualified immunity is affirmed, where Defendant violated the Fourth Amendment by detaining Plaintiff without probable cause. Read more…
U.S. 6th Circuit Court of Appeals, February 26, 2009 US v. Groenendal, No. 07-2430 Defendant’s child pornography sentence is vacated where: 1) uploading images to a website constitutes “trafficking” under U.S.S.G. section 2G2.2; and 2) section 3B1.2’s “minor participant” reduction may apply in a pornography trafficking matter. Read more…
U.S. 6th Circuit Court of Appeals, February 26, 2009 US v. Higgins, No. 08-5114 Defendant’s drug and firearm convictions are affirmed where: 1) evidence from Defendant’s home was properly admitted under the good-faith exception to the exclusionary rule; and 2) “cocaine base” in 21 U.S.C. section 841 refers to crack cocaine. Read more…
U.S. 6th Circuit Court of Appeals, February 27, 2009 US v. Boring, No. 07-4363 Defendant’s conviction for worker’s compensation fraud is affirmed where: 1) there was sufficient evidence that Defendant faked the severity of his injuries; and 2) Defendant’s denial of guilt under oath subjected him to a sentence enhancement under U.S.S.G. section 3C1.1. Sentence is reversed, where the restitution award overstated the loss Defendant caused. Read more…
U.S. 6th Circuit Court of Appeals, February 27, 2009 US v. Ali, No. 07-6446 In a prosecution for the Defendant’s false statement on a naturalization application that he never committed bigamy, the denial of Defendant’s motion to dismiss the indictment is affirmed where Defendant participated in a marriage ceremony while already married to another. Read more…
U.S. 7th Circuit Court of Appeals, February 23, 2009 Cookson v. Schwartz, No. 08-1181 Denial of petition for writ of habeas corpus is affirmed where the trial court did not violate the plaintiff’s rights under the Confrontation Clause when it admitted the victim’s out-of-court statements and excluded cross-examination related to victim’s allegation of sexual abuse against plaintiff. Read more…
U.S. 7th Circuit Court of Appeals, February 26, 2009 US v. Bryant , No. 07-3608 Conviction for conspiracy to distribute cocaine base is affirmed where: 1) the district court did not abuse its discretion in denying defendant’s motion to withdraw his guilty plea, as there was no fair and just reason for him to withdraw his plea; 2) there was no clear error in district court’s conclusion that defendant conspired to distribute crack cocaine as the Government need not prove that a substance contains sodium bicarbonate in order to establish that a substance is crack. Sentence is vacated and remanded so that district court may take into account the sentencing disparity between crack and powder cocaine when sentencing defendant, and to address fully whether defendant is entitled to an acceptance of responsibility adjustment and whether his state-court conviction for possession of cocaine constitutes relevant conduct for sentencing purposes. Read more…
U.S. 7th Circuit Court of Appeals, February 27, 2009 US v. Dunson, No. 08-1691 Sentence for possessing a firearm as a felon is affirmed where district court properly applied the United States Sentencing Guidelines in classifying defendant’s prior conviction for fleeing a police officer in a vehicle as a crime of violence.
U.S. 8th Circuit Court of Appeals, February 23, 2009 Earl v. Fabian , No. 07-3544 In a habeas corpus action, denial of petition under the Antiterrorism and Effective Death Penalty Act is vacated and remanded for evidentiary review where the district court must determine on remand whether the state’s failure to provide notice of final judgment created an impediment that prevented plaintiff from timely filing his habeas petition in violation of the Constitution or U.S.C. section 2244(d)(1)(B). On the issue of equitable tolling, the delay in providing notice of final judgment amounts to extraordinary circumstances beyond a prisoner’s control which can equitably toll the AEDPA statute of limitations, but defendant failed to diligently pursue his rights and thus is not entitled.
U.S. 8th Circuit Court of Appeals, February 23, 2009 US v. Lewis , No. 08-1006 In an action where co-defendants were charged jointly with mail fraud, wire fraud, bank fraud, conspiracy, and money laundering, judgment is affirmed where: 1) the district did not err in denying defendant’s motion to sever as the defendant’s defenses were not actually irreconcilable, the jury was able to compartmentalize the evidence, and any Bruton error was harmless; 2) district court did not abuse its discretion in denying co-defendant Tyler Lewis’ motion for a new trial on the basis of insufficient evidence or in giving the jury a willful blindness instruction and 3) the district court did not err in applying a statutory sentencing enhancement to co-defendant Cameron Lewis’ sentence or in its restitution order.
U.S. 8th Circuit Court of Appeals, February 23, 2009 US. v. Littrell , No. 08-1149 Sentence for being a felon in possession of a firearm is affirmed where district court did not err in applying statutory sentencing enhancement for use of a firearm in connection with another felony offense theft. Sufficient evidence existed to show defendant committed the felony theft offense, and there was no clear error in finding the possession was in connection with the theft
U.S. 8th Circuit Court of Appeals, February 23, 2009 US v. Coleman, No. 08-1870 Sentence for conspiracy to distribute marijuana and to launder drug trafficking proceeds is affirmed where: 1) district court did not err in enhancing defendant’s sentence by concluding his previous Iowa drug tax stamp violation qualified as a felony drug offense under U.S.C. section 841(b)(1)(B) as it involved conduct relating to marijuana; and 2) district court did not abuse its discretion in denying motion for departure or variance.
U.S. 8th Circuit Court of Appeals, February 23, 2009 US v. Beck, No. 08-2224 Conviction for being a felon in possession of a firearm is affirmed where: 1) district court did not abuse its discretion in limiting cross-examination for impeachment purposes; 2) there was no abuse of discretion in introduction of evidence obtained two days before trial because evidence did not substantially prejudice the defendant and likely had little impact on the trial; and 3) there was no error in grant of motion to preclude the argument that police did not conduct a thorough investigation.
U.S. 8th Circuit Court of Appeals, February 24, 2009 US v. Gordon , No. 08-1734 Sentence for possession of a firearm as a convicted felon is reversed and remanded for resentencing where defendant’s prior conviction for endangering the welfare of a child is not a “violent felony” within the meaning of the Armed Career Criminal Act. Defendant thus has only two prior convictions for ACCA predicate offenses and is not subject to the mandatory minimum sentence.
U.S. 8th Circuit Court of Appeals, February 25, 2009 US v. Hoffman, No. 06-4007 Conviction for giving a gratuity is affirmed where: 1) while the court erred in modifying defendant’s theory-of-defense instruction, taken as a whole the instructions accurately informed the jury of the government’s burden of proof and accurately stated the law; and 2) the evidence presented was sufficient such that a reasonable juror could conclude beyond a reasonable doubt that the defendant gave a gift to a government employee in order to obtain a favorable performance rating.
U.S. 8th Circuit Court of Appeals, February 25, 2009 Jenkins v. County of Hennepin, No. 08-1058 In an action involving prisoner civil rights, district court’s grant of defendant’s motion for summary judgment is affirmed where: 1) medical supervisor’s decision to delay x-ray was at worst negligence, and did not reflect the deliberate indifference necessary to prove a constitutional violation; 2) plaintiff failed to establish that defendant had a policy or custom of deliberate indifference to medical needs that was constitutionally inadequate; and 3) employee’s testimony concerning shortfalls in the provision of medical care was insufficient to establish the kind of pervasive pattern of constitutional violations required to create liability.
U.S. 8th Circuit Court of Appeals, February 25, 2009 US v. Cvijanovich , No. 08-1203 Conviction for making threats against the President, denial of motion to dismiss indictment, and denial for motion for acquittal are affirmed where: 1) conduct charged in the indictment was outside the scope of a previous plea agreement as the government’s agreement did not bar prosecution for new threats against the President; 2) the evidence supports the conclusion that a reasonable jury could have found defendant guilty of threats against the President; 3) evidence of prior bad acts was admissible to provide context for the charges and to show intent and the seriousness of the threats; and 4) any error in admitting testimony from a Secret Service Agent on defendant’s threat assessment was harmless as the jury was instructed to apply a reasonable man standard in determining whether the language used was a threat to the President. .
U.S. 8th Circuit Court of Appeals, February 26, 2009 Streu v. Dormire, No. 07-3430 Denial of petition for writ of habeus corpus is reversed where: 1) plaintiff’s motion to reopen his post-conviction relief proceedings was a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment, and it tolled AEDPA’s statute of limitations while pending; and 2) calculating the time the statute was tolled yields a result that plaintiff’s habeas petition was untimely. The matter is remanded for further proceedings on whether the statute should be equitably tolled. ..
U.S. 8th Circuit Court of Appeals, February 26, 2009 US v. Alexander , No. 07-3602 Sentence is vacated and remanded for resentencing where the district court committed procedural error and impermissibly applied a presumption of reasonableness to the advisory guidelines range. The district court did not err by increasing defendant’s offense level under sentencing guidelines for a leadership role in the offense.
U.S. 8th Circuit Court of Appeals, February 26, 2009 US v. Marron-Garcia, No. 07-3637 Sentence is affirmed where there is no basis to conclude the district court sentence conflicted with the Supreme Court’s intervening decision in Gall as nothing in the court’s pre-Gall cases impermissibly constrained the district court’s discretion to grant at least a minor variance from the advisory guidelines range.
U.S. 8th Circuit Court of Appeals, February 26, 2009 US v. Janis, No. 08-1286 Conviction for theft or embezzlement from an Indian tribal organization is affirmed where the evidence against defendant was sufficient to support her conviction.
U.S. 8th Circuit Court of Appeals, February 26, 2009 US v. Harris, No. 08-2774 Conviction and sentence for conspiracy to distribute cocaine is affirmed where limitations in the applicable sentencing guidelines policy statement on a district court’s authority to reduce a sentence are constitutional and enforceable. The district court thus did not err in concluding it did not have the authority to reduce defendant’s sentence below the amended guideline range.
U.S. 9th Circuit Court of Appeals, February 23, 2009 Briceno v. Scribner, No. 07-55665 In an appeal from a dismissed habeas petition based on a gang-related sentence enhancement, denial of the petition is reversed, where there was insufficient evidence at trial to show that the robberies at issue were gang-related.
U.S. 9th Circuit Court of Appeals, February 25, 2009 DeWeaver v. Runnels, No. 06-16865 In a habeas petition challenging Defendant’s murder conviction, denial of the petition is affirmed, where the state court did not unreasonably hold that Petitioner did not clearly invoke his right to remain silent during his interrogation.
U.S. 9th Circuit Court of Appeals, February 25, 2009 US v. Banks, No. 07-30130 Defendant’s child pornography conviction is affirmed, where: 1) the warrant to search Defendant’s home was sufficiently specific in describing the items sought; and 2) the District Court’s failure to apply the marital communications privilege was harmless.
U.S. 9th Circuit Court of Appeals, February 25, 2009 US v. Nickerson, No. 07-30832 Defendant’s methamphetamine distribution conviction is affirmed where, although Defendant’s counsel improperly communicated with a represented party, Defendant failed to show that this violation created prejudice. ..
U.S. 9th Circuit Court of Appeals, February 25, 2009 US v. Esperaza-Herrera, No. 07-30490 The District Court’s decision not to enhance Defendant’s illegal reentry sentence under U.S.S.G. section 2L1.2 is affirmed where Defendant’s prior conviction for “aggravated assault” under Arizona law was not a “crime of violence” conviction under Section 2L1.2.
U.S. 9th Circuit Court of Appeals, February 25, 2009 Waldron-Ramsey v. Pacholke, No. 07-35938 Dismissal of Petitioner’s habeas petition was affirmed, where the petition was untimely and Petitioner was not entitled to equitable tolling, because Petitioner’s failure to timely file his petition was due to his negligence.
U.S. 9th Circuit Court of Appeals, February 26, 2009 US v. James, No. 07-10122 Defendant’s murder and robbery convictions are affirmed in part where the Federal Juvenile Delinquency Act does not require that charges added after a juvenile’s transfer to adult status be the subject of an additional transfer hearing, but vacated in part where sentencing Defendant both for felony murder and second-degree murder and robbery violated the Double Jeopardy Clause.
U.S. 9th Circuit Court of Appeals, February 26, 2009 Lassiter v. Bremerton, No. 07-35848 In a 42 U.S.C. section 1983 action based on a false arrest, judgment for Defendants is affirmed where: 1) the officers had probable cause to arrest Plaintiffs; 2) Defendant-Prosecutor had probable cause to prosecute Plaintiffs; and 3) the city did not ratify the officers’ conduct.
U.S. 10th Circuit Court of Appeals, February 24, 2009 US v. French, No. 07-5147 In an appeal from an order setting an appointed attorney’s compensation under the Criminal Justice Act, the appeal is dismissed, where the Court of Appeals lacked jurisdiction to hear an appeal from a CJA compensation determination.
U.S. 10th Circuit Court of Appeals, February 24, 2009 US v. Winder, No. 07-6208 Defendant’s drug and firearms possession convictions are affirmed, where: 1) the police observed Defendant’s traffic violation, and thus stopping him was reasonable; and 2) Amendment 706 to the Sentencing Guidelines was non-retroactive at the time of sentencing.
U.S. 10th Circuit Court of Appeals, February 24, 2009 US v. Tafoya, No. 08-2113 Denial of Defendant’s motion to dismiss his firearms possession charge is affirmed where the Double Jeopardy clause did not prohibit Defendant’s retrial because the prosecutor did not intend to goad the Defendant into seeking a mistrial. .
U.S. 10th Circuit Court of Appeals, February 25, 2009 US v. Nacchio, No. 07-1311 In an insider trading prosecution, Defendant’s conviction is affirmed, where the District Court properly excluded proffered expert testimony because Defendant made no attempt to establish its reliability under Daubert. ..
U.S. 10th Circuit Court of Appeals, February 27, 2009 US v. Brown, No. 08-8043 Defendant’s crack cocaine distribution sentence is affirmed, where Amendment 706 to the Sentencing Guidelines could not reduce Defendant’s sentence because the sentence was lower than what he would have received pursuant to Amendment 706.
U.S. 11th Circuit Court of Appeals, February 24, 2009 Hunter v. US, No. 07-13701 Defendant’s sentence for being a felon in possession of a firearm is affirmed, where a sentencing error alone is not “a substantial showing of the denial of a constitutional right” under 28 U.S.C. section 2253(c)(2).
U.S. 11th Circuit Court of Appeals, February 26, 2009 McCullough v. Antolini, No. 08-10176 In a 42 U.S.C. section 1983 action alleging a wrongful police shooting, denial of Defendants-Officers’ qualified immunity is reversed where Defendants did not use excessive force because Plaintiff drove his car toward Defendants in a dangerous manner.
U.S. 11th Circuit Court of Appeals, February 27, 2009 Mamone v. US, No. 07-14953 In an appeal from the denial of Petitioner’s motion to vacate his sentence, the denial is affirmed, where a motion under 28 U.S.C. section 2255 cannot be used to challenge the restitution portion of a sentence.
U.S. 11th Circuit Court of Appeals, February 27, 2009 US v. Louis, No. 08-10916 Defendant’s sentence for selling a firearm to a convicted felon is vacated, where a licensed firearms dealer does not occupy a “position of trust” under U.S.S.G. section 3B1.3 and thus is not subject to that sentence enhancement.
U.S. 11th Circuit Court of Appeals, February 27, 2009 Fennell v. Gilstrap, No. 08-12553 In a 42 U.S.C. section 1983 action alleging an officer’s improper use of force against a pretrial detainee, summary judgment for Defendant is affirmed, where Defendant was entitled to qualified immunity because Plaintiff did not show that Defendant’s use of force was malicious.
Supreme Court of California, February 26, 2009 People v. Ramirez, No. S156775 Conviction for grossly negligent shooting of a firearm is reversed as to three of the ten counts where a the offense of grossly negligent discharge of a firearm is a necessarily included offense of the more stringent requirements of discharge of a firearm at an inhabited dwelling.
New York Court of Appeals, February 24, 2009 People v. Quinones, No. 14 Defendant’s burglary sentence was affirmed, where New York’s discretionary persistent offender sentencing laws did not violate Apprendi because they required the jury to find that the defendant was a persistent offender.
Supreme Court of Florida, February 26, 2009 Bradley v. State of Florida , No. SC08-196 In a clarification of criminal statutes, a defendant’s nolo contendere plea may constitute an express waiver of a defective charging document when he stipulates to facts which include any missing element and voluntarily pleads to a sentence that incorporates the missing element.
Supreme Court of Delaware, February 23, 2009 Binaird v. State, No. 240-2008 Conviction of second degree assault and possession of a deadly weapon during the commission of a felony is affirmed where: 1) there was sufficient evidence for a jury to find that defendant physically injured the victim; and 2) the trial court did not abuse its discretion and violate plaintiff’s right to confront and effectively cross-examine a witness by curtailing questioning that became argumentative.
California Appellate Districts, February 24, 2009 People v. Richardson , No. C055688 Conviction for residential burglary, kidnapping and making criminal threats is affirmed where a request for a new trial based on a defendant’s claim of ineffective assistance of counsel does not trigger the court’s duty to conduct a Marsden hearing if the defendant’s desire for substitute counsel is not made clear.
California Appellate Districts, February 24, 2009 Brown v. Ransweiler , No. D051983 In a negligence and assault and battery action where plaintiff was injured by a ricochet in a police shooting, trial court’s grant of defendant’s motion for summary judgment is affirmed where: 1) defendant’s actions as a police officer were objectively reasonable as a matter of law such that he could not be found to have acted negligently with regard to his role in the shooting; 2) plaintiff’s failure to demonstrate that any material facts are in dispute, and defendant’s reasonable use of deadly force against the suspect in the incident preclude a finding of liability for battery for any injury that may have resulted from the use of force; and 3) the privilege afforded to defendant’s conduct pursuant to Penal Code section 196 precludes liability as to the battery claim.
California Appellate Districts, February 25, 2009 People v. Medina, No. A120517 Recommitment order for an indefinite term under the Sexually Violent Predator Act (SVPA) is affirmed where: 1) defendant’s constitutional challenge was without merit; and 2) defendant’s administrative claim was an unsuccessful collateral attack on the original judgment of commitment. .
California Appellate Districts, February 25, 2009 People v. Hayes , No. C057345 Conviction for possessing/carrying a “sharp instrument” upon his person while confined in a penal institution is reversed for prejudicial instructional error where a jury instruction regarding the definition of a term was not harmless beyond a reasonable doubt and created an ambiguity which the trial court expressly allowed to be exploited by the prosecutor to argue a legally incorrect theory.
California Appellate Districts, February 26, 2009 In re Rico, No. B207448 Petition for writ of habeus corpus is granted where the Board of Parole Hearing’s unsuitability for parole finding was based solely on the gravity of the commitment offense rather than on the additional factors cited by the Warden, and was not supported by evidence that plaintiff’s release would pose an unreasonable threat to public safety. The Board of Parole Hearings is ordered to vacate its decision and find plaintiff suitable for parole.
Texas Court of Criminal Appeals, February 25, 2009 Davis v. State, No. PD-0613-08 Conviction for burglary is affirmed where Defendant was not denied effective assistance of counsel, because Defendant failed to show a reasonable probability that the jury would have discredited the state’s evidence had counsel performed adequately.