Other States - July, 2014

Ninth Circuit:  Denial of Bias Claim
Without Hearing was Unreasonable
Determination of Facts

The Ninth Circuit has established a firm rule for federal courts to apply when assessing the reasonableness of state courts’ factual determinations under the AEDPA.  A trial court, confronted with a claim of bias, should allow an evidentiary hearing rather than relying on its own recollections.  Hurles v. Ryan, 2014 BL 137326 (9th Cir., No. 08-99032, 05-16-14); full text at http://www.bloomberglaw.com/public/document/RICHARD_D_HURLES_PetitionerAppellant_v_CHARLES_L_RYAN_RespondantA

Massachusetts:  Advisory About Eligibility
for Deportation was not
Specific Enough to Uphold Guilty Plea

The Massachusetts Supreme Judicial Court held that a defense attorney’s advice that pleading guilty to a particular offense would make his client “eligible for deportation” was not specific enough.  It is not constitutionally adequate for counsel to advise their clients that they are eligible for removal when, as in this case, removal was presumptively mandatory under federal law after a guilty plea.  Commonwealth v. DeJesus, 2014 BL 137688 (Mass., No. SJC-11392, 05-19-14); full text at http://www.bloomberglaw.com/public/document/COMMONWEALTH_v_DeJESUS_No_SJC11392_2014_BL_137688_Mass_May_19_201

New Jersey:  Consented-to-Search was
too Entangled with Unlawful Detention
to be Reasonable

The New Jersey Supreme Court held that police officers’ lawful detention of a suspect to determine his identity became objectively unreasonable when they shifted their attention to obtaining consent for a warrantless search.  Defendant was detained on suspicion that he was involved in a robbery.  He had no identification on him, and officers went to his aunt’s house to verify the address.  They then obtained permission to search his room at his aunt’s house.  The lawful detention turned into a de facto arrest requiring probable cause when the officers shifted their attention from identification to the search.  State v. Coles, 2014 BL 137703 (N.J., No. A-15-12, 05-19-14); full text at http://www.bloomberglaw.com/public/document/State_v_Coles_No_A15_September_Term_2012_070653_2014_BL_137703_NJ

Eighth Circuit:  Routinely Unlocked
Cell Doors After Assault Constituted
Risk of Serious Harm to Inmates

The Eighth Circuit ruled that evidence that jailers routinely left cell doors unlocked overnight even after one detainee had assaulted another suffices to sustain a finding – at the summary judgment phase in a civil rights action – that the conditions of confinement presented a serious risk of harm.  Walton v. Dawson, 2014 BL 139779, (8th Cir., No. 12-4000, 05-20-14); full text at http://www.bloomberglaw.com/public/document/Walton_v_Dawson_No_124000_2014_BL_139779_8th_Cir_May_20_2014_Cour

Eighth Circuit:  Challenge to Parole
Procedures Falls Under PLRA

The Eighth Circuit held that a challenge to parole procedures is a civil action with respect to prison conditions under the Prison Litigation Reform Act.  Martin v. State, 2014 BL 138346 (8th Cir., No. 12-3714, 05-19-14); full text at http://www.bloomberglaw.com/public/document/Martin_v_Iowa_No_123714_2014_BL_138346_8th_Cir_May_19_2014_Court_

Tenth Circuit:  Appellate Review is not
Necessarily Limited by Waiver of Rights to
Appeal in Plea Bargain

The Tenth Circuit held that a defendant who claims that his guilty plea was not knowing and voluntary is entitled to have a reviewing court look at all the circumstances underlying the plea agreement, not just whether the defendant’s waiver of the right to appeal is binding.  If the defendant did not voluntarily enter into the agreement, the appellate waiver subsumed in the agreement also cannot stand.  United States v. Rollings, 2014 BL 140506 (10th Cir., No. 13-6014, 05-20-14); full text at http://www.bloomberglaw.com/public/document/United_States_v_Rollings_No_136014_2014_BL_140506_10th_Cir_May_20

Seventh Circuit:  Defendants’ Estates Do
Not Pay Restitution When Death Comes
Before Appellate Ruling4

The Seventh Circuit decided to continue to apply the common-law rule that the death of a defendant during the pendency of a direct appeal abates the conviction and sentence, including a restitution order.  Other circuits and some state courts have held that restitution orders can survive a defendant’s death during appeal.  The abatement doctrine is traditionally based on considerations of finality and the idea that it would be unfair to maintain punishment when the convicted did not have an opportunity to appeal.  United States v. Volpendesto, 2014 BL 158468 (7th Cir., No. 11-3020, 06-06-14); full text at http://www.bloomberglaw.com/public/document/United_States_v_VOLPENDESTO_No_113020_2014_BL_158468_7th_Cir_June

Ninth Circuit:  Under Heck’s Favorable
Termination Rule, Cause of Action
Accrues at Time of Vacatur

The Ninth Circuit held that a civil rights plaintiff’s claim predicated on the withholding of exculpatory evidence at his criminal trial did not accrue until the resulting conviction was held invalid.  Therefore, the limitations period for filing a lawsuit under 42 U.S.C. § 1983 did not begin to run until then.  Rosales-Martinez v. Palmer, 2014 BL 154176 (9th Cir., No. 12-15077, 06-03-14); full text at http://www.bloomberglaw.com/public/document/PEDRO_ROSALESMARTINEZ_PlaintiffAppellant_v_COLBY_PALMER_individua

Pennsylvania:  Expert Testimony on
Eyewitness Reliability Is No Longer
Barred in Pennsylvania Courts

A divided Pennsylvania Supreme Court ruled that expert testimony on the reliability of eyewitness identification is no longer per se inadmissible in Pennsylvania.  Lifting its 20-year ban on such evidence, the court stated that the time had come for it to join the majority of jurisdictions that leave the admissibility of such expert opinion to the discretion of the trial court.  Commonwealth v. Walker, 2014 BL 147124 (Pa., No. 28 EAP 2011, 05-28-14); full text at http://www.bloomberglaw.com/public/document/Commonwealth_v_Walker_No_28_EAP_2011_2014_BL_147124_Pa_May_28_201

Connecticut:  Public Defender Must Fund
Defense Costs Incurred by Indigents who

The Connecticut Supreme Court held that the funding for investigators and experts that is already available to defendants represented by a public defender must be extended to indigent defendants who choose to represent themselves.  The court rejected the suggestion that the defendant waived his constitutional right to have the state foot the bill just because he insisted on going forward pro se.  State v. Wang, (Conn., No. SC 19178, 06-17-14); full text at http://pub.bna.com/cl/SC19178.pdf

New York: Violation of Right to Presence
was Structural Error

The New York Court of Appeals held that a defendant’s absence when a trial judge provided a supplemental jury instruction required reversal of his murder conviction without an inquiry into harmlessness.  The defendant’s attorney did not object when the trial judge, in the defendant’s absence, entertained a deliberation juror’s request for additional guidance on a key issue at trial.  The trial judge did not adequately remedy the error by advising the defendant that he could review the transcript of the discussion with the juror if he wanted.  People v. Rivera, 2014 BL 160792 (N.Y., No. 117, 06-10-14); full text at http://www.bloomberglaw.com/public/document/People_v_Rivera_2014_NY_Slip_Op_04115_2014_BL_160792_NY_June_10_2

California:  No Abettor Liability for
First-Degree Murder

The California Supreme Court held that an aider and abettor may not be convicted of first-degree premeditated murder on the theory that the offense was the natural and probable consequence of a planned assault on the victim.  Although it may have been reasonably foreseeable that the victim would die, this natural and probable consequence justified only a finding of second-degree murder because the connection between the defendant’s culpability and the killer’s subjective premeditative state is too tenuous to support a first-degree murder conviction.  People v. Chiu, 2014 BL 152742 (Cal., No. S202724, 06-02-14); full text at http://www.bloomberglaw.com/public/document/People_v_Chiu_No_S202724_2014_BL_152742_Cal_June_02_2014_Court_Op

Washington:  Deliberations Must Begin
Anew if Juror is Replaced

The Washington Supreme Court ruled that a defendant’s constitutional right to a unanimous jury was violated when an alternate was substituted for an indisposed juror during deliberations and the trial court told the reconstructed jury to just bring the alternate up to speed on what had been discussed.  The constitutional requirement of unanimity means that all 12 jurors have reached a consensus after each juror has examined the evidence and discussed the case with the other jurors. State v. Lamar, 2014 BL 163565 (Wash., No. 89060-9, 06-12-14); full text at http://www.bloomberglaw.com/public/document/State_v_Lamar_No_890609_2014_BL_163565_Wash_June_12_2014_Court_Op

New York:  High Court Limits
Coram Nobis Relief

The New York Court of Appeals recognized some limits on its recent decision allowing prisoners to pursue coram nobis relief when their attorneys failed to file appeals.  The court held that relief from the deadline for appeals  was available when ineffective assistance of counsel made the defendant miss the deadline and he could not have reasonably discovered the error within the one-year statutory deadline for filing an out-of-time appeal.  People v. Andrews, 2014 BL 162595 (N.Y., No. 93, 06-12-14); full text at http://www.bloomberglaw.com/public/document/People_v_Andrews_2014_Slip_Op_04233_2014_BL_162595_NY_June_12_

Seventh Circuit:  Limitations on
Defendant’s Right to Interpreter Services

The Seventh Circuit held that indigent defendants who do not understand English are not entitled to have an appointed interpreter sit next to them throughout the trial to ensure constant communication with counsel.  A defendant does not have the right to have an interpreter continuously seated at the defense table.  Additionally, the defendant was not denied the right to effective assistance of counsel just because his lawyer did not demand that the thousands of pages of discovery turned over by the government be translated into Spanish.   Mendoza v. United States, 2014 BL 169780 (7th Cir., No. 13-3195, 06-18-14); full text at http://www.bloomberglaw.com/public/document/GABRIEL_V_MENDOZA_PetitionerAppellant_v_UNITED_STATES_OF_AMERICA_

Iowa:  Counsel Was Ineffective For Advising
Guilty Plea in HIV Transmission Case

The Iowa Supreme Court ruled that a lawyer delivered ineffective assistance of counsel when he allowed his client to plead guilty to transmitting HIV when the evidence did not clearly establish that there had been any exchange of bodily fluids as required by the statute.  Defense counsel should have zeroed in on the fact that there was no evidence that any bodily fluids had been exchanged, as required by the statute.  Rhoades v. State, 2014 BL 165124, (Iowa, No. 12-0180, 06-13-14); full text at http://www.bloomberglaw.com/public/document/Rhoades_v_State_No_120180_2014_BL_165124_iowa_June_13_2014_Court_

Second Circuit:  Police Cannot Indefinitely
Hold Digital Files That Are Beyond
Scope of Search Warrant

The Second Circuit held that government agents violated the Fourth Amendment when they executed a search warrant authorizing them to copy the hard drives from an accountant’s computers for off-site inspection and then held on to the copies for more than two years before rummaging through the data for evidence of a different crime.  The court stated that if “the government could seize and retain non-responsive electronic records indefinitely, so it could search them whenever it later developed probable cause, every warrant to search for particular electronic data would become, in essence, a general warrant.”  United States v. Ganias, 2014 BL 167771 (2nd Cir., No. 12-240-cr, 06-17-14); full text at http://www.bloomberglaw.com/public/document/United_States_v_Ganias_No_12240cr_2014_BL_167771_2d_Cir_June_17_2

Ninth Circuit:  Delaying Presentment for
Long Weekend Was not Justified by
Interrogation of Cohort

The Ninth Circuit held a four-day delay in a defendant’s presentment caused by a Monday holiday and an investigator’s decision to interrogate a cooperative accomplice was not reasonable and necessary for purposes of the McNabb/Mallory rule on the admissibility of confessions.  The court understood why law enforcement sought to strengthen its case against the defendant, but found that the delay in presenting him to a magistrate judge to interrogate him and the accomplice was unreasonable.  United States v. Pimental, 2014 BL 175726 (9th Cir., No. 12-50038, 06-24-14); full text at http://www.bloomberglaw.com/public/document/United_States_v_Pimental_No_1250038_2014_BL_175726_9th_Cir_June_2

Fifth Circuit:  Clerical Mistakes on
Presentence Report May be Corrected at
Any Time

The Fifth Circuit held that a prisoner who is serving a 405-month sentence is entitled to have a clerical error in his PSIR corrected 13 years after he was convicted.  The court found that it was not a harmless error and it could be fixed because it was part of the record, a record that the prison relied on in making important decisions about placement and classifications.  United States v. Mackay, (5th Cir., No. 13-10521, 06-26-14); full text at http://www.bloomberglaw.com/public/document/USA_Robert_Mackay_Docket_No_1310521_5th_Cir_May_16_2013_Court_D

Ninth Circuit:  Scaring Jurors is
Prosecutorial Misconduct

The Ninth Circuit held that a prosecutor should not suggest to jurors during closing argument that acquitting the defendant will endanger their neighbors.  The prosecutor told the jurors that they would not be comfortable “if they had to explain to their neighbors that they had acquitted the accused.”  However, the remark did not deprive the habeas corpus petitioner of a fair trial because it was not reasonably probable that the jurors would have reached a different verdict had it not been made.  Trillo v. Biter, 2014 BL 166624 (9th Cir., No. 11-15463, 06-16-14); full text at http://www.bloomberglaw.com/public/document/VICTOR_BERNARD_TRILLO_PetitionerAppellant_v_MARTIN_BITER_Acting_W