Other States - June, 2014

Fourth Circuit:  Error in Applying
Sentencing Guidelines Can
Justify Relief on Collateral Challenge

The Fourth Circuit held that an erroneous application of the career-offender provisions of the U.S. Sentencing Guidelines qualifies as a fundamental miscarriage of justice that can be corrected on collateral review.  The court stated that to conclude otherwise would put the bureaucratic achievement ahead of the task of ensuring that all those who come before the court receive meaningful review of their claims.  Whiteside v. United States, 2014 BL 96662 (4th Cir., No. 13-7152, 04-08-14); full text at http://www.bloomberglaw.com/public/document/Deangelo_Whiteside_v_US_2014_BL_96662_4th_Cir_Apr_08_2014_Court_O

Eleventh Circuit:  Magistrate Judges
Cannot Enter Final Orders in
Federal Prisoners’ Post-Conviction Attacks

The Eleventh Circuit declared that federal magistrate judges lack the statutory authority to issue final judgments on federal prisoners’ habeas-corpus-type motions under 28 U.S.C. § 2255.  The court’s reasoning also suggests that magistrate judges lack the authority to try and sentence federal misdemeanors.  The ruling limits magistrate judges in § 2255 proceedings to holding hearings, issuing reports, and making recommendations to district judges.  Brown v. United States, 2014 BL 96212 (11th Cir., No. 11-15149, 04-07-14); full text at http://www.bloomberglaw.com/public/document/BROWN_v_United_States_No_Nos_1115149_1210293_2014_BL_96212_11th_C

Eleventh Circuit:  Cops Violated the
Fourth Amendment by Spying on
Suspect’s Stationhouse Talk with Lawyer

Police officers who eavesdropped on a conversation between a suspect and his lawyer were not protected by qualified immunity in a civil rights action claiming a Fourth Amendment violation even though the warrantless surveillance took place in a police station interview room.  The client and his lawyer had a reasonable expectation that their discussion was private because the client was not in custody and they had not been warned that the room was monitored.  Gennusa v. Canova, 2014 BL 97868 (11th Cir., No. 12-13871, 04-08-14); full text at http://www.bloomberglaw.com/public/document/Gennusa_v_Canova_No_1213871_2014_BL_97868_11th_Cir_Apr_08_2014_Co

Second Circuit:  Sixth Amendment Rights of Deaf Defendants

When a defendant does not apprise the court of an impairment, he is only entitled to accommodations commensurate with the degree of difficulty that was, or reasonably should have been, clear and obvious to the judge.  A defendant is entitled to reasonable accommodations, but the Sixth Amendment does not create an absolute right to the elimination of all difficulties or impairments that may hinder a defendant’s capacity to perfectly comprehend and participate in court proceedings.  United States v. Crandall, (2nd Cir., No. 12-3313-cr, 04-10-14); full text at http://www.pub.bna.com/cl/123313.pdf

Kansas:  Defendant is Entitled to
Appointed Lawyer for Post-Verdict
Ineffective Counsel Motion

The Kansas Supreme Court held that the trial court violated an indigent defendant’s constitutional right to conflict-free representation when it denied his motions for a new trial without appointing a new lawyer to help him argue that he had received ineffective assistance from his trial counsel.  A timely motion for a new trial is a critical stage of the criminal proceeding at which a defendant has a Sixth Amendment right to counsel.  The trial court did not adequately protect this right when it merely provided the defendant with an opportunity to make a pro se statement about his lawyer’s alleged shortcomings.  State v. Sharkey, 2014 BL 101754 (Kan., No. 106,150, 04-11-14); full text at http:// www.bloomberglaw.com/public/document/State_v_Sharkey_No_106150_2014_BL_101754_Kan_Apr_11_2014_Court_Op

Ninth Circuit:  Heck Does Not Bar Suit
Against Prosecutors Who Got Conviction
After Second, Clean Trial

A civil rights plaintiff can sue prosecutors who used unconstitutionally obtained evidence at a criminal trial that led to a conviction that was later reversed, even though the prosecutors obtained a new, untainted conviction at retrial.  The favorable-termination rule from Heck does not bar recovery for damages where the defendant is subsequently retried and convicted.  The subsequent conviction was obtained without the use of the tainted evidence.  The sole conviction that will be called into question is the one that has already been vacated.  Jackson v. Barnes, 2014 BL 105236 (9th Cir., No. 09-55763, 04-15-14); full text at http://www.bloomberglaw.com/public/document/FREDERICK_LEE_JACKSON_PlaintiffAppellant_v_MICHAEL_BARNES_VENTURA

New Hampshire:  Drug Inquiry Unlawfully
Extended Traffic Stop

A police officer conducting a traffic stop violated the state constitution when he asked a driver whose hands were shaking nervously and whose eyes were bloodshot to show the officer his tongue.  The scope of the stop was unlawfully extended when the officer took steps to investigate whether the defendant has possessed or consumed marijuana.  The officer lacked reasonable suspicion to believe that the defendant was under the influence of drugs.  State v. Blesdell-Moore, 2014 BL 105073, (N.H., No. 2012-475, 04-15-14); full text at http://www.bloomberglaw.com/public/document/STATE_v_BLESDELLMOORE_No_2012475_2014_BL_105073_NH_Apr_15_2014_Co

Mississippi:  Facebook Messages Were
Not Properly Authenticated

The Mississippi Supreme Court held that prosecutors failed to adequately authenticate Facebook messages by presenting evidence that the Facebook account belonged to someone with the purported author’s name, evidence that the Facebook page bore a grainy photograph of the purported author, and a witness’s testimony that the purported author was the person who sent the messages.  The court faulted the prosecutor for not presenting more identifying evidence, such as the birth date or hometown of the person who created the Facebook page.  The prosecution also needed to present the basis for the witness’s testimony that the messages were from the purported author.  Smith v. State, 2014 BL 108053 (Miss., No. 2012-CT-00218-SCT, 04/17/14); full text at http://www.bloomberglaw.com/public/document/SMITH_v_STATE_No_2012CT00218SCT_2014_BL_108053_Miss_Apr_17_2014_C

Third Circuit:  Allegation of Fabricated
Evidence is Due Process Claim

A civil rights claim based on allegations that the police fabricated evidence is cognizable as a due process claim independent of a Fourth Amendment malicious-prosecution claim.  A claim of fabricated evidence can be rooted in the Fourteenth Amendment’s procedural due process guarantee.  Halsey v. Pfeiffer, 2014 BL 113921 (3rd Cir., No. 13-1549, 04/24/14); full text at http://www.bloomberglaw.com/public/document/Halsey_v_Pfeiffer_No_Nos_131549_132236_2014_BL_113921_3d_Cir_Apr_/1

Ninth Circuit:  Attacks on Jury Pools
No Longer Limited to Single Way
to Show Underrepresentation

The Ninth Circuit held that courts no longer must use one particular analytical method for resolving Sixth Amendment and statutory claims that minorities are not fairly and reasonably represented in jury pools.  The Ninth Circuit declined to express a preference for any of the methods for assessing disparity.  The court held that someone raising a fair-cross-section claim must establish statistical significance and legal significance.  United States v. Hernandez-Estrada, 2014 BL 121656 (9th Cir., No. 11-50417, 04-30-14); full text at http://www.bloomberglaw.com/public/document/UNITED_STATES_OF_AMERICA_PlaintiffAppellee_v_SALVADORE_HERNANDEZES

Ninth Circuit:  Judge Violated Clearly
Established Federal Law by Limiting
Closing Argument

The Ninth Circuit held that a state court acted contrary to clearly established U.S. Supreme Court law making it structural error for a trial court to foreclose a subject of closing argument when it denied relief to a prisoner who was erroneously prevented from arguing reasonable doubt as to accomplice liability.  The defense counsel was prohibited from arguing both reasonable doubt and duress in closing.  The court found that the judge’s actions in forcing defense counsel to concede guilt amounted to an unconstitutional directed verdict.  Frost v. Van Boening, 2014 BL 119740 (9th Cir., No. 11-35114, 04-29-14); full text at http://www.bloomberglaw.com/public/document/FROST_v_BOENING_No_1135114_2014_BL_119740_9th_Cir_Apr_29_2014_Cou

Tenth Circuit:  It Was Plain Error to Let
Expert Testify That Defendant’s Statement
Wasn’t Credible

The Tenth Circuit ruled that a trial judge committed plain error in allowing an FBI agent trained in detecting deception and truth in statements to testify that, in his expert opinion, the defendant’s answers were not credible.  Much of the testimony asserted fairly obvious and commonly understood issues of veracity.  A jury does not need an expert to inform it that a witness that changes a story may be less than truthful.  The reversal was proper given the relative weakness of the government’s overall case.  United States v. Hill, 2014 BL 118278 (10th Cir., No. 12-5154, 04-28-14); full text at http://www.bloomberglaw.com/public/document/United_States_v_Hill_No_125154_2014_BL_118278_10th_Cir_Apr_28_201/1

Eighth Circuit:  Defendant’s Meager
Employment History Cannot be Used to
Infer He Was Dealing Drugs

The Eighth Circuit ruled that a sentencing judge committed procedural error when he refused to grant a downward departure from the U.S. Sentencing Guidelines based on speculation that the defendant’s lack of employment for 10 years meant that he must have been a long-time drug dealer.  Long-term unemployment may be consistent with drug sales, but it certainly does not establish such.  The PSIR contained no factual allegation that the defendant had been selling drugs for 10 years.  United States v. Stokes, 2014 BL 118578, (8th Cir., No. 13-1779, 04-29-14); full text at http://www.bloomberglaw.com/public/document/United_States_v_Stokes_No_131779_2014_BL_118578_8th_Cir_Apr_29_20

Kansas:  Officers Overstayed
Emergency-Aid Entry

The Kansas Supreme Court held that police officers who entered an apartment pursuant to the Fourth Amendment’s emergency-aid doctrine should not have commenced investigations into trespassing and drugs after they determined that no one inside was seriously injured.  A landlord was unable to awaken the defendant, who was lying on a couch in an apartment where the rent was past due.  The court rejected the state’s argument that the officers were allowed to remain in the apartment to protect the tenant’s property while they determined whether the defendant and another occupant had permission to be there.  State v. Neighbors, 2014 BL 115347 (Kan., No. 105,588, 04-25-14); full text at http://www.bloomberglaw.com/public/document/State_v_Neighbors_No_105588_2014_BL_115347_Kan_Apr_25_2014_Court_

New York:  Failure to Tell Arrestee That
Her Attorney Called Leads to
Suppression of Breathalyzer Results

A divided New York Court of Appeals ruled that police violated a drunk driver’s statutory right to counsel before deciding whether to take a Breathalyzer test when they did not tell her that a lawyer hired by her family had called the station.  The decision extends the reach of a rule that previously was applied only in situations where the arrestee asked to talk to a lawyer before deciding whether to consent.  People v. Washington, 2014 BL 125423 (N.Y., No. 65, 05-06-14); full text at http://www.bloomberglaw.com/public/document/People_v_Washington_2014_NY_Slip_Op_03190_2014_BL_125423_NY_May_0

Fourth Circuit:  Juror’s Mid-Deliberation
Consult with Pastor Required Post-
Conviction Hearing on Contact

The Fourth Circuit held that a state court’s failure to investigate allegations that a juror in a death-penalty case discussed a biblical passage with her pastor and then shared that conversation with the other jurors was an unreasonable application of federal law that opened the door to federal habeas corpus review.  The state court erred by not holding a special hearing to explore the allegations because the purported misconduct involved an improper external influence that triggered a presumption of prejudice.  Barnes v. Joyner, 2014 BL 125137, (4th Cir., No. 13-5 05-05-14); full text at http://www.bloomberglaw.com/public/document/Barnes_Joyner_No_135_2014_BL_125137_4th_Cir_May_05_2014_Court_O

D.C. Circuit:  Privacy Interest of Acquitted
Defendants Trump Requests for Phone
Tracking Data

The U.S. Court of Appeals for the District of Columbia held that the DOJ properly used a FOIA exemption to withhold docket information related to warrantless mobile phone tracking in six criminal prosecutions that ended in dismissal or acquittal because those charged have a substantial privacy interest in avoiding further public scrutiny.  Am. Civil Liberties Union v. DOJ, 2014 BL 129875 (D.C. Cir., No. 13-5064, 05/09/14); full text at http://www.bloomberglaw.com/public/document/AMERICAN_CIVIL_LIBERTIES_UNION_AND_AMERICAN_CIVIL_LIBERTIES_UNION

Ninth Circuit:  State Rules Govern
Timeliness of State Filings

The Ninth Circuit held that federal judges determining whether state applications for post-conviction relief were properly filed, and therefore tolled the running of the federal limitations period for habeas corpus petitions, should not apply the prison mailbox rule unless the state courts do.  The filing of state applications is governed by state law even when it impacts the federal limitations period.  Orpiada v. McDaniel, 2014 BL 127176 (9th Cir., No. 12-17131, 05/07/14); full text at http://www.bloomberglaw.com/public/document/Orpiada_v_McDaniel_No_1217131_2014_BL_127176_9th_Cir_May_07_2014_

Second Circuit:  Supreme Court Opened
Door to Collateral Attacks

The Second Circuit held that the U.S. Supreme Court’s decision in Vartelas v. Holder, 80 U.S.L.W. 1338 (U.S. 2012), allows certain noncitizens who are charged with illegally re-entering the country following a felony conviction to collaterally challenge their deportations.  United States v. Gill, 2014 BL 127015 (2nd Cir., No. 12-2207-cr, 05/07/14); full text at http://www.bloomberglaw.com/public/document/United_States_v_Gill_No_122207cr_2014_BL_127015_2d_Cir_May_07_201

Fourth Circuit:  Reversal Ordered after
Investigator Testified as both Fact Witness
and Expert on Drug Lingo

The Fourth Circuit reversed convictions for drug trafficking because of an investigator’s expert testimony as to the alternative meaning of words in intercepted telephone recordings.  The trial court’s mindfulness of the dangers and a cautionary jury instruction weren’t enough to adequately separate an FBI agent’s fact testimony from her expert testimony or to keep the latter within the scope of expert opinion.  United States v. Garcia, 2014 BL 136362 (4th Cir., No. 13-4136, 05/15/14); full text at http://www.bloomberglaw.com/public/document/UNITED_STATES_OF_AMERICA_Plaintiff_Appellee_v_DANILO_GARCIA_aka_

Iowa:  Certificates of Mailing are
Testimonial if they are Created after
Charges were Filed

The Iowa Supreme Court held that a defendant’s constitutional right to cross-examine the makers of out-of-court testimonial statements was violated by the admission at trial of affidavits certifying that the state mailed him notices that his driver’s license had been revoked.  Certifications of mailing created after a defendant is charged are testimonial because they could lead an objective observer to believe that they were made with an eye toward prosecution.  State v. Kennedy, 2014 BL 129905 (Iowa, No. 11-1685, 05/09/14); full text at http://www.bloomberglaw.com/public/document/STATE_OF_IOWA_Appellee_vs_BRIAN_M_KENNEDY_Appellant_No_111685_201

Illinois:  Continued Detention of Driver is
Unjustified once Reasonable Suspicion
has Disappeared

The Illinois Supreme Court ruled that a police officer violated the Fourth Amendment by detaining the driver and asking for his license and proof of insurance after it became clear that the initial justification for the stop had evaporated.  The car was registered to a woman with an outstanding warrant, but it was being driven by a male.  The warrant was the only reason for the stop.  People v. Cummings, (Ill., No. 11-5769, 03-20-14); full text at http://www.pub.bna.com/cl/SC-115769.pdf

Texas:  Officers’ Awareness that Accused
Had Counsel is Imputed to
Interrogators in Other County

The Texas Court of Criminal Appeals held that a defendant’s invocation of the right to counsel at a bail proceeding is enforceable against investigators from another county who may not have actually been aware of that invocation.  After the defendant invoked his right to counsel in one county, investigators in another county used the defendant’s daughter to tape conversations regarding abuse that took place in multiple counties.  Rubalcado v. State, 2014 BL 76464 (Tex. Crim. App., No. PD-0195-13, 03-19-14); full text at http://www.bloomberglaw.com/public/document/ROBERT_RUBALCADO_Appellant_v_THE_STATE_OF_TEXAS_No_PD019513_2014

Seventh Circuit:  Cutoff for Stale and
Repeat Habeas Claims is not Reset if
Sentence is Just Recalculated

The limitations clock for seeking federal habeas corpus relief and the restriction against filing additional petitions were not reset at zero when the prisoner’s sentence was reduced in light of the U.S. Sentencing Commission’s decision to retroactively cut the offense levels for crack-cocaine offenses.  There are differences between resentencing and a sentence reduction.  In a sentence reduction, the judge does not receive evidence or reopen any issues already decided.  White v. United States, 2014 BL 716575 (7th Cir., No. 13-3396, 03-14-14); full text at http://www.bloomberglaw.com/public/document/JUAN_M_WHITE_PetitionerAppellant_v_UNITED_STATES_OF_AMERICA_Respo

Minnesota:  Helping Someone Kill
Themselves is Illegal; Merely Encouraging
Them to Do So Isn’t

The Minnesota Supreme Court held that a provision of a state assisted-suicide law making it illegal to encourage or advise someone to commit suicide violates the First Amendment.  Speech in support of suicide, however distasteful, is an expression of a viewpoint on a matter of public concern.  State v. Melchert-Dinkel, 2014 BL 75768, (Minn., No. A11-0987, 03-19-14); full text at http://www.bloomberglaw.com/public/document/STATE_v_MELCHERTDINKEL_No_A110987_2014_BL_75768_Minn_Mar_19_2014

Illinois:  Ban on Mandatory LWOP for
Juveniles is Retroactive

The Illinois Supreme Court held that the Eighth Amendment’s ban on mandatory sentences of life without parole for offenses committed by juveniles applies to sentences that were final before Miller.   People v. Davis, (Ill., No. 115595, 03-20-14); full text at http://www.pub.bna.com/cl/115595.pdf

South Carolina:  Failure to Contact Alibi
Witness was Ineffectiveness

A lawyer was ineffective for failing to contact a potential alibi witness, whose statement, if believed, might have led to a different outcome.  Walker v. State, (S.C., No. 27368, 03-19-14); full text at http://www.pub.bna.com/cl/SC-27368.pdf

D.C. Circuit:  Cohabitant’s Consent Clearly
Didn’t Allow Search

A defendant’s grandmother did not have apparent authority to give permission for a search of a shoebox by the defendant’s bed in the living room.  The grandmother stated that the defendant kept his personal property in the area by the bed.  This statement was positive information that arguably made it obvious that the closed shoebox belonged specifically to the defendant.  United States v. Peyton, 2014 BL 78098, (D.C. Cir., No. 10-3099, 03-21-14); full text at http://www.bloomberglaw.com/public/document/United_States_v_Peyton_No_103099_2014_BL_78098_DC_Cir_Mar_21_2014

Maine:  Refusal to Give DNA Sample
Was Inadmissible

The Maine Supreme Court ruled that a trial court committed reversible error when it allowed the state to argue that a rape suspect’s refusal to submit to a DNA test showed consciousness of guilt.  Ex parte Maxwell, 2014 BL 68878 (Tex. Crim. App., No. AP-76-964, 03/12/14); full text at http://www.pub.bna.com/cl/Oxf-12-373.pdf