November 9-13, 2009.
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U.S. Supreme Court, November 09, 2009 Bobby v. Van Hook, No. 09–144 In a capital habeas matter, a circuit court of appeals’ grant of the petition on the basis that petitioner’s lawyers performed deficiently in investigating and presenting mitigating evidence is reversed where: 1) the court of appeals applied 2003 ABA Professional Guidelines to defense counsel’s conduct at a trial that took place in 1985; and 2) counsel’s performance at the trial was not deficient under the standards in place at the time.
U.S. 1st Circuit Court of Appeals, November 10, 2009 US v. Villar, No. 08-1154 In proceedings arising after defense counsel in a criminal matter received an e-mail from a juror containing ethnically-biased statements, an order denying defendant’s motion to make an inquiry into the validity of the verdict is reversed and the matter remanded where: 1) although the trial court correctly found that Rule of Evidence 606(b) precludes inquiry into juror prejudice; 2) a court has the discretion to conduct such an inquiry under the Sixth Amendment and the Due Process Clause of the United States Constitution. …
U.S. 1st Circuit Court of Appeals, November 12, 2009 Cabral v. US Dep’t of Justice, No. 07-1633 In an appeal arising from an underlying action brought by a nurse practitioner claiming that defendant-sheriff barred plaintiff from a County House of Correction (HOC) for informing the FBI of alleged prisoner abuse at the HOC, denial of defendants’ motions for a new trial and for remittur is affirmed where: 1) there is nothing in the record indicating that the district court abused its discretion in making its pre-trial evidentiary and disclosure rulings; 2) district court’s dismissal of defendants’ action under the Administrative Procedure Act (APA) was proper as there was nothing in the record indicating that agency’s denial of the defendants’ Touhy requests was arbitrary and capricious; 3) the evidence was sufficient to establish that the sheriff engaged in the callous and reckless conduct necessary to support an award of punitive damages; and 4) the award of punitive damages of $250,000 against sheriff was not excessive.
U.S. 2nd Circuit Court of Appeals, November 10, 2009 Ortiz v. N.Y.S. Parole in Bronx, No. 07-2299 In a petition for habeas relief from petitioner’s convictions for first degree riot and second degree assault under New York law, denial of the petition is affirmed where the New York courts’ rejection of petitioner’s due process claim and, specifically, his contention that the law did not make it reasonably clear at the relevant time that his conduct was criminal, was not an unreasonable application of clearly established federal law. Read more…
U.S. 2nd Circuit Court of Appeals, November 10, 2009 US v. Hasan, No. 08-4921 Defendant’s conviction and sentence for making a false statement on a passport application is affirmed where: 1) 18 U.S.C. section 1542 does not require that the false statement on a passport application be “material”; and 2) the district court did not err in imposing an enhancement for obstruction of justice where defendant’s abduction of his children prevented proper legal proceedings from occurring by taking matters completely outside the purview of the administration of justice. Read more…
U.S. 2nd Circuit Court of Appeals, November 13, 2009 Warney v. Monroe Cty., No. 08-0947 In a civil rights action alleging that the exculpatory result of post-trial DNA testing was not timely disclosed to plaintiff, denial of defendant-prosecutors’ motion for summary judgment based on absolute or qualified immunity is reversed where, because the testing was undertaken in connection with post-trial proceedings and was therefore integral to the advocacy function, the prosecutors enjoyed absolute immunity under Imbler v. Pachtman, 424 U.S. 409 (1976). Read more…
U.S. 4th Circuit Court of Appeals, November 09, 2009 US v. Maroquin-Bran, No. 08-4464 District court’s sentencing of a Guatemalan citizen for illegally re-entering the US following deportation to fifty-seven months in prison and three years of supervised release after applying a sixteen level enhancement is vacated and remanded for resentencing as section 2L1.2(b)(1)(A) requires a prior conviction for a felony that is a drug trafficking offense, not simply a conviction under a statute that criminalizes drug trafficking as well as other activities. Read more…
U.S. 5th Circuit Court of Appeals, November 09, 2009 US v. Rose, No. 08-10813 Defendant’s drug and firearm possession convictions and sentence are affirmed where: 1) the district court erred by admitting a drug lab report that was a testimonial statement and thus hearsay, but this did not rise to the level of plain error; 2) a rational trier of fact was entitled to conclude that defendant possessed the handgun at issue “in furtherance” of a drug trafficking offense; 3) “aggravated robbery,” as defined by section 29.03 of the Texas Penal Code, is a “serious violent felony” for purposes of the Sentencing Guidelines.
U.S. 5th Circuit Court of Appeals, November 06, 2009 US v. Cockrell, No. 08-41008 Defendant’s conviction for conspiracy to possess with intent to distribute heroin resulting in serious bodily injury is affirmed over a claim that certain evidence was improperly admitted where: 1) defendant’s prior conviction was relevant to show intent because both the extrinsic offense and the charged offense involved an intent to distribute; and 2) a prior arrest for heroin possession was relevant to show that defendant had the requisite intent for the crime charged. .
U.S. 5th Circuit Court of Appeals, November 10, 2009 US v. Jasso, No. 08-10453 Defendant’s illegal reentry sentence is affirmed where: 1) the district court erred in assigning defendant two additional criminal history points, pursuant to U.S.S.G. sections 4A1.2(e) and (k), based on his prior assault conviction in state court, because it was error to count defendant’s entire sentence issued upon his violation of probation, rather than considering only the portion of the sentence he actually served; but 2) the error did not affect defendant’s substantial rights and thus was not plain error.
U.S. 6th Circuit Court of Appeals, November 09, 2009 Jones v. Byrnes, No. 08-1889 In plaintiff’s 42 U.S.C. section 1983 action against two police officers on behalf of the estate of her husband arising from a high speed chase of armed robbery suspects that killed her husband in an automobile crash, summary judgment in favor of the defendant police officers is affirmed where: 1) the estate did not establish a prima facie case of deprivation of the husband’s substantive due process rights as officers’ actions of trying to apprehend what they reasonably believed to be dangerous criminals do not shock the conscience; and 2) in the alternative, even if the officers’ actions did rise to the level of violating the husband’s constitutional rights, it was not clearly established at the time of the incident that actions of that sort crossed the constitutional line.
U.S. 6th Circuit Court of Appeals, November 09, 2009 Shaya v. Holder, No. 08-4619 An Iraqi petitioner’s request for review of BIA’s denial of his application for asylum and related relief is vacated and remanded as the immigration judge never made a finding of fact regarding the length of time that petitioner actually served in prison for his assault conviction, and should he be found to have served less than one year in prison, he should be held not to be an aggravated felon and therefore not removable.
U.S. 6th Circuit Court of Appeals, November 10, 2009 Chontos v. Berghuis, No. 08-1031 In habeas proceedings arising following the imposition of a 40-year maximum sentence and a 225-month minimum for first-degree criminal sexual conduct involving a person under the age of thirteen and various other offenses, denial of the petition is affirmed where: 1) there was no jury-trial right violation because judge-found facts did not increase defendant’s sentence beyond the statutory maximum for Apprendi purposes; and 2) the district court properly rejected defendant’s claim that the trial court violated his Fifth and Sixth Amendment rights by sentencing him more harshly for insisting on going to trial and for not explicitly admitting his guilt.
U.S. 6th Circuit Court of Appeals, November 12, 2009 Eddleman v. McKee, No. 08-1093 District court’s orders releasing defendant from prison and barring his reprosecution on the ground that the State took too long to conduct a second trial are reversed and remanded with instructions to dismiss the petition for lack of jurisdiction as no federal power authorized the district court to release the defendant from pretrial detention on a legitimate state charge, or to bar his reprosecution.
U.S. 6th Circuit Court of Appeals, November 12, 2009 US v. Schaffer, No. 09-3053 District court’s denial of defendant’s motion to dismiss his indictment for conspiracy to commit computer fraud is affirmed where: 1) defendant did not properly preserve his factual specificity of the indictment argument; 2) defendant failed to establish that the face of the indictment failed to charge the elements of a federal offense; 3) no violation of the statute of limitations occurred as the indictment was returned within five years of the last act in furtherance of the conspiracy; 4) defendant failed to demonstrate that he was actually prejudiced by a pre-indictment delay; and 5) the district court committed no error in denying defendant’s motion to dismiss based upon entrapment as a matter of law.
U.S. 6th Circuit Court of Appeals, November 13, 2009 Johnson v. Sherry , No. 08-1322 In a second degree murder case, district court’s denial of defendant’s petition for habeas relief is vacated and remanded for an evidentiary proceeding to determine whether: 1) the trial closure during the testimony of three prosecution witnesses was justifiable; 2) trial counsel was constitutionally ineffective for failing to object to the closure; and 3) the cause and prejudice components of defendant’s public trial claim can be satisfied.
U.S. 7th Circuit Court of Appeals, November 09, 2009 US v. Christianson , No. 09-1526 Convictions and sentences of defendants, members of the Earth Liberation Front which has been identified by the FBI as domestic eco-terrorist group, for destroying government property is affirmed where: 1) the district court did not err in holding that defendants’ conduct caused the Forest Service to suffer a loss in its loss-amount calculation; and 2) defendant’s argument that he’s not the sort of person who should be labeled a terrorist and that the terrorism enhancement does not apply unless his crime transcended national boundaries is without merit.
U.S. 7th Circuit Court of Appeals, November 10, 2009 Bond v. Utreras, No. 07-2651 An independent journalist’s petition for permission to intervene to challenge a protective order that prohibited public disclosure of confidential voluminous materials relating to citizen complaints against officers after a plaintiff’s settlement against the city of Chicago and several members of its police department, an order simultaneously granting the journalist’s request to intervene and lifting the order in its entirety is vacated because the petition to intervene should have been dismissed for lack of standing where: 1) the controversy originally supporting the court’s jurisdiction no longer existed at the time the court acted on the petition; 2) the parties had settled; 3) the case was dismissed with prejudice; and 4) neither plaintiff nor the city asked the court to revisit and modify the terms of the protective order postjudgment. Furthermore, the district court lacked any alternative jurisdictional basis to revisit and revoke the protective order sua sponte as th! ere is no presumption of public access emanating from Rule 26(c)’s good cause requirement for discovery that is not part of the court file.
U.S. 7th Circuit Court of Appeals, November 10, 2009 US v. Robinson, No. 08-4251 District court’s denial of defendant’s motion to suppress a statement he gave to law enforcement agents implicating himself in criminal firearms trafficking is affirmed where the district court did not commit clear error in finding that defendant initiated a conversation with law enforcement, and thus, the law enforcement agents did not interrogate defendant in violation of his Fifth Amendment right to counsel.
U.S. 8th Circuit Court of Appeals, November 09, 2009 Norman v. Schuetzle, No. 08-1686 In a 42 U.S.C. section 1983 action alleging that defendant prison officials failed to protect plaintiff from an assault, district court’s denial of qualified immunity to defendants is reversed where: 1) defendants did not have reason to know of plaintiff’s attacker’s dangerousness; and 2) defendants’ conduct did not rise to the level of deliberate indifference. .
U.S. 8th Circuit Court of Appeals, November 09, 2009 Rohrbough v. Hall, No. 08-3617 In a 42 U.S.C. section 1983 action alleging excessive force by the police, denial of qualified immunity to defendants is affirmed where a jury could conclude that plaintiff’s pushing the officer was de minimis or inconsequential, and so a reasonable officer, when faced with the circumstances, would have known that responding by punching plaintiff in the face, taking him to the ground face down, landing on top of him and thereby causing him serious injury was illegal.
U.S. 8th Circuit Court of Appeals, November 09, 2009 US v. Curry, No. 09-1325 Denial of defendant’s motion for a sentence reduction pursuant to 18 U.S.C. section 3582(c)(2) is affirmed where: 1) the district court did not abuse its discretion in failing to explicitly state what sentence it would have imposed had Amendment 706 to the Sentencing Guidelines been in effect when defendant was originally sentenced; and 2) the district court’s observation that defendant’s 100-month sentence was the product of negotiation was an accurate reflection of the record and not speculation regarding what might otherwise have occurred.
U.S. 8th Circuit Court of Appeals, November 09, 2009 Smith v. Kansas City Police Dep’t, No. 09-1484 In a 42 U.S.C. section 1983 action alleging unlawful entry and excessive force by police, denial of summary judgment based on qualified immunity for defendants is affirmed where: 1) the presence of a domestic violence suspect did not alone justify defendant’s warrantless entry; and 2) on all the facts alleged, including the lack of exigent circumstances, the lack of an immediate safety threat, and the lack of active resistance to arrest, a jury could find that defendant’s use of force was not objectively reasonable.
U.S. 8th Circuit Court of Appeals, November 10, 2009 Flowers v. Norris, No. 09-1083 In a robbery prosecution, denial of petitioner’s habeas petition is affirmed where: 1) the record clearly showed that defense counsel based his decision not to seek a severance of petitioner’s trial on his general denial defense, not on any mistaken understanding about the admissibility of petitioner’s conviction prior to trial; and 2) thus, counsel did not render ineffective assistance.
U.S. 8th Circuit Court of Appeals, November 10, 2009 Nance v. Sammis, No. 09-1353 In a 42 U.S.C. section 1983 action alleging excessive force by the police, denial of summary judgment based on qualified immunity is affirmed where the facts taken in the light most favorable to plaintiffs could establish the excessive use of force and unreasonable seizure in violation of the Fourth Amendment.
U.S. 8th Circuit Court of Appeals, November 12, 2009 US v. Jensen, No. 06-2284 Defendant’s drug conspiracy sentence is vacated where the Supreme Court’s decisions in Gall and Burns changed the law of the circuit and granted authority to district courts that they lacked under the Eighth Circuit’s pre-Gall precedents, including the authority to make certain major reductions in the absence of extraordinary assistance. ..
U.S. 8th Circuit Court of Appeals, November 12, 2009 US v. Whittington, No. 08-3698 Defendant’s tax fraud conviction is affirmed where: 1) even if the burden were on the government to prove defendant’s competence to stand trial, the government met its burden; and 2) the district court’s finding by a preponderance of the evidence that defendant was competent to stand trial was not arbitrary, unwarranted, or clearly erroneous. .
U.S. 8th Circuit Court of Appeals, November 13, 2009 Bell v. Norris, No. 07-3432 In a murder prosecution, a denial of petitioner’s habeas petition is affirmed where the Arkansas Supreme Court identified and reasonably applied the correct legal standard for assessing whether the minor made a knowing and intelligent waiver of his Miranda rights. .
U.S. 9th Circuit Court of Appeals, November 09, 2009 US v. Ruckes, No. 08-30088 In an appeal from a district court’s denial of defendant’s motion to suppress drug and firearm evidence against him, the order is affirmed where the district court did not err in holding that the drugs and firearm would have been uncovered during a routine inventory search of the vehicle upon impound.
U.S. 9th Circuit Court of Appeals, November 10, 2009 US v. Ambriz-Ambriz, No. 08-30431 Defendant’s conviction for illegal reentry into the U.S. is affirmed where, because defendant had not legally left the U.S. on the date of his detention, and he was not entering the U.S. from a foreign country, the official restraint doctrine was inapplicable.
U.S. 9th Circuit Court of Appeals, November 10, 2009 Bermudez v. Holder, No. 08-72133 In a petition for review of the BIA’s order denying petitioner’s request to terminate proceedings and his request for cancellation of removal, the petition is dismissed where petitioner’s conviction was one related to a controlled substance under 8 U.S.C. section 1227(a)(2)(B)(i), and thus the circuit court lacked jurisdiction over the petition.
U.S. 10th Circuit Court of Appeals, November 09, 2009 US v. Caldwell, No. 08-3011 Defendant’s crack cocaine distribution sentence is affirmed in part where: 1) the district court appropriately relied on an informant’s testimony to find that defendant had produced crack; and 2) production of three ounces of crack qualified as relevant conduct under the Sentencing Guidelines. However, the sentence is reversed in part where the district court erred in attributing two points to defendant for committing one of the offenses of conviction while serving under a criminal justice sentence.
U.S. 11th Circuit Court of Appeals, November 10, 2009 US v. Brown, No. 07-13007 Defendants’ drug conspiracy convictions are affirmed where: 1) the fact that there was no evidence that defendants sold drugs to each other was not dispositive of the conspiracy issue; 2) due to the repeated nature of the transactions and the large quantities involved, a rational trier of fact could infer a corresponding conspiracy to distribute the cocaine; and 3) one defendant’s prior convictions were relevant to show intent.
U.S. 11th Circuit Court of Appeals, November 10, 2009 Pardo v. Sec’y., Fla. Dept. of Corr., No. 08-14053 In a capital habeas matter, the denial of petitioner’s petition is affirmed where: 1) the trial court was not required to hold a sua sponte hearing on petitioner’s competence to testify, because petitioner expressly declined the trial court’s offer to hold a competency hearing, his attorney stipulated to his competence, and four mental health experts testified that he was competent; 2) there was no evidence submitted to the trial judge of any physical ailments suffered by petitioner which would have affected his competence; and 3) based on five experts’ testimony that petitioner was competent, defense counsel made a reasonable investigation of petitioner’s mental state.
U.S. D.C. Circuit Court of Appeals, November 10, 2009 US v. Reeves, No. 07-3130 Defendant’s drug possession sentence is affirmed where: 1) the district court did not err in imposing an obstruction of justice enhancement because defendant failed to appear at his arraignment hearing; and 2) the district court did not plainly err in concluding that defendant’s acceptance of responsibility, which did not occur until after he was re-arrested for another crime, was insufficiently timely to warrant a reduction for acceptance of responsibility.
U.S. D.C. Circuit Court of Appeals, November 13, 2009 Williams v. Martinez, No. 08-5221 In a murder prosecution, dismissal of petitioner’s habeas petition for lack of jurisdiction is reversed where, because the state court of appeals held that challenges to the effectiveness of appellate counsel could not be brought pursuant to the state collateral review statute, but were instead required to be raised through a motion to recall the mandate in that court, that statute did not deprive federal courts of jurisdiction over habeas petitions alleging ineffective assistance of appellate counsel.
U.S. D.C. Circuit Court of Appeals, November 13, 2009 Sanford v. US, No. 08-5402 In a petition for habeas review of a military court martial, dismissal of the petition is affirmed where 1) there was no due process right to a court-martial panel of a minimum size; and 2) petitioner did not present evidence that a panel of less than six persons was likely to result in a miscarriage of justice.
Supreme Court of California, November 12, 2009 People v. Concha, No. S163811 Conviction of defendants for first degree murder of their accomplice, who was killed by the intended victim of an apparent attempted robbery, is reversed and remanded where: 1) a defendant may be convicted of first degree murder under the provocative act doctrine if the defendant personally acted willfully, and with premeditation during the attempted murder; but 2) the jury instructions on first degree murder failed to require the jury to find whether each defendant personally acted willfully, deliberately, and with premeditation during the course of the attempted murder of the victim.
California Appellate Districts, November 09, 2009 People v. Cohens, No. E045468 Defendant’s conviction for willful infliction of corporal injury on a cohabitant and failure to register as a sex offender is affirmed where: 1) defendant’s failure to object to jury instructions regarding the failure to register offense was not a waiver of right to appeal; 2) jury instructions were erroneous because the instructions did not require that the People prove that defendant actually knew he was required to register the address in particular; but 3) even if the instructions as to the actual knowledge requirements of the failure to register offense were erroneous, the error was harmless beyond a reasonable doubt.
California Appellate Districts, November 09, 2009 People v. Santiago, No. F056686 In a prosecution for possession of methamphetamine and resisting arrest, trial court’s use of Judicial Counsel of California Criminal Jury Instructions CALCRIM No. 2550 when instructing the jury is upheld, as this standardized instruction does not improperly direct minority jurors to give way to majority jurors or improperly tell the jury that all criminal cases must be decided at some point.
California Appellate Districts, November 09, 2009 People v. Am. Surety Ins. Co. , No. G040720 Judgment in favor of the People forfeiting bail after a motion to set aside the forfeiture was denied is reversed as the trial court lost jurisdiction to forfeit bail when the case was not called on the date set for arraignment by the jailer, and there was no jurisdiction on a later arraignment date set by the district attorney.
California Appellate Districts, November 09, 2009 People v. Hernandez, No. H031992 Conviction of defendant for premeditated attempted murder is reversed as, without more evidence of good cause for a court order barring defense counsel from discussing the contents of co-defendant’s written declaration with the defendant, the order unjustifiably infringed on the defendant’s constitutional right to the effective assistance of counsel, and as such, the defendant is entitled to reversal without making a showing of prejudice resulting from the error. Remaining issues are considered and the decisions of the trial court affirmed only to the extent necessary to provide guidance in the event of retrial.
California Appellate Districts, November 10, 2009 In re Jennifer S. , No. A122900 Juvenile court’s order placing defendant on home probation for violation of County Code section 9.42.020, which makes it a misdemeanor for a person under age 21 to have a blood alcohol level of .01 percent or more while in a public place within the County, is affirmed and defendant’s claim that the ordinance is preempted by state law rejected where: 1) the field of underage drinking is not fully occupied; 2) the ordinance was enacted to prohibit consumption; 3) the ordinance does not duplicate state law; and 4) defendant’s argument that the potential adverse effects of the ordinance on transient citizens outweighs the possible benefits to the county is rejected. …
California Appellate Districts, November 13, 2009 People v. Pakes, No. H032734 Trial court’s sentencing of defendant to an indeterminate term of 25 years to life to run consecutive to a determinate term of four years for child endangerment, evading a police officer, and hit and run causing property damage, is reversed and remanded for resentencing as the four-year term imposed on the Vehicle Code section 2800.2 conviction should have been stayed pursuant to Penal Code section 654 as there was sufficient evidence that the jury could have found that defendant’s conduct constituted willful and wanton disregard for the safety of the minor in his vehicle and the other driver as well as the other driver’s car.