October, 2014

Arizona:  Concealed Firearm is Not Enough
to Justify Protective Frisk

The Arizona Supreme Court found that officers engaged in a consensual encounter with someone violated the Fourth Amendment by frisking him when he admitted that he had a gun.  The officers lacked a reasonable belief that the person was committing a crime or was dangerous.  State v. Serna, 2014 BL 220899, (Ariz., No CR-13-0306-PR, 08-07-14); full text at http://www.bloomberglaw.com/public/document/STATE_OF_ARIZONA_Appellee_v_JOHNATHON_BERNARD_SERNA_Appellant_No_

Eleventh Circuit:  Lawyer’s Tardy Return
After Lunch Break Violated Client’s
Counsel Right Under Cronic

A divided Eleventh Circuit held that a defense counsel’s brief absence from the courtroom during a prosecution witness’s presentation of directly inculpatory evidence violated the defendant’s right to counsel in such a fundamental way that he did not need to show prejudice to win a reversal of his conviction.  The attorney’s absence, of just seven minutes, was a constitutional error that rendered the trial so unfair it tainted the conviction.  United States v. Roy, (11th Cir., #12-15093, 08-05-14); full text at http://www.bloomberglaw.com/public/document/USAAlexander_Roy_Docket_No_1215093_11th_Cir_Oct_01_2012_Court_

Wyoming:  Judge’s Generic Deportation
Warning Didn’t Cure
Counsel’s Padilla Omission

The Wyoming Supreme Court held that a lawyer’s failure to warn his client that a guilty plea would almost certainly result in deportation was not remedied by the trial court’s generic statement during the plea colloquy that certain felony convictions may be the basis for deportation.  The court stated that because “it was clear that deportation would result from a conviction, the advice concerning that result was required to be equally clear.”  Ortega-Araiza v. State, (Wyo., #S-13-0242, 08-06-14); full text at http://www.bloomberglaw.com/public/document/LUIS_GERARDO_ORTEGAARAIZA_Appellant_Defendant_THE_STATE_OF_WYOMIN

Seventh Circuit:  Parolee With no License Who Rented Car Still Had Reasonable Expectation of Privacy

The seventh circuit held that the Fourth Amendment protected the privacy of a defendant who was a passenger in a car that he rented while his license was suspended, in violation of both his rental car agreement and a parole condition forbidding him to travel interstate.  The court held that the suspension of one’s driver’s license doesn’t suspend one’s privacy rights.  United States v. Walton, 2014 BL 224847 (7th Cir., #14-1177, 08-13-14); full text at http://www.bloomberglaw.com/public/document/UNITED_STATES_OF_AMERICA_PlaintiffAppellee_v_KENYON_R_WALTON_Defe

Seventh Circuit:  Series of ‘Unusual
Obstacles’ Justifies Equitable Tolling of
AEDPA Habeas Deadline

The Seventh Circuit held that an inmate whose efforts to meet the one-year deadline for filing a federal habeas petition were “hampered at every turn” by the dilatory return of his case file and highly restricted access to the prison library is entitled to have the limitations period equitably tolled.  Socha v. Boughton, 2014 BL 226288 (7th Cir. #12-1598, 08-14-14); full text at http://www.bloomberglaw.com/public/document/THOMAS_R_SOCHA_PetitionerAppellant_v_GARY_A_BOUGHTON_Warden_Respo

Tenth Circuit:  ‘Stay and Abey’ Procedure
Isn’t Limited to ‘Mixed’ Petitions

The Tenth Circuit held that the “stay and abey” procedure that the U.S. Supreme Court has authorized for mixed habeas corpus petitions can be applied in some circumstances in which a petition contains only a single, unexhausted claim.  Doe v. Jones, 2014 BL 223145 (10th Cir., #12-6311, 08-12-14); full text at http://www.bloomberglaw.com/public/document/DOE_v_JONES_No_126311_2014_BL_223145_10th_Cir_Aug_12_2014_Court_O

Ninth Circuit:  Guard’s Close Reading of
Letter to Counsel Supports Claim of
Right to Counsel Violation

The Ninth Circuit held that an Arizona prisoner’s allegation that officials were actually reading his letters to counsel, as opposed to merely scanning for contraband or prohibited messages, sets out a claim of a violation of his Sixth Amendment right to counsel in his civil rights lawsuit.  The court stated that “a policy or practice permitting prison officials to not just inspect or scan, but to read an inmate’s letters to his counsel is highly likely to inhibit the sort of condid communications that the right to counsel and the attorney-client privilege are meant to protect.”  Nordstrom v. Ryan, 2014 BL 221246, (9th Cir., #12-15738, 08-11-14); full text at http://www.bloomberglaw.com/public/document/Nordstrom_v_Ryan_No_1215738_2014_BL_221246_9th_Cir_Aug_11_2014_Co

Kentucky:  Federal Prosecutors Bound by
Ethics Rule Forbidding
IAC Waivers in Plea Agreements

The Kentucky Supreme Court held that it is unethical for federal prosecutors in Kentucky to insist that defendants surrender any potential claims of ineffective assistance of counsel as a condition of accepting a plea bargain.  The court agreed with the Kentucky Bar Association that conditioning a plea bargain on the defendant’s waiving of any IAC claims creates a nonwaivable conflict of interest between defense lawyers and their clients and induces an ethical breach by defense counsel.  United States v. Ky. Bar Ass’n, (Ky., # 2013-SC-000270-KB, 08-21-14); full text at http://pub.bna.com/cl/SC-000270-KB-1.pdf

Fifth Circuit:  Driver’s Consent to Search
Was no Good Because Passengers Were
Out of Earshot

The Fifth Circuit held that police officers who stopped motorists on an interstate road trip could not rely on the driver’s consent to search all of the luggage in the trunk when that consent was obtained without the passengers’ knowledge.  The circumstances of this case would put the officers on notice that the driver could not give consent to a search of all the bags in the trunk.  United States v. Iraheta, 2014 BL 230751 (5th Cir., No. 13-30545, 08-19-14); full text at http://www.bloomberglaw.com/public/document/UNITED_STATES_OF_AMERICA_PlaintiffAppellant_v_WILLIAM_IRAHETA_CHR

Second Circuit:  Defendant Should Have
Been Allowed to Ask About
Other Leads That Police Didn’t Follow

The Second Circuit held that a defendant’s clearly established right to confrontation was violated when he was blocked from cross-examining a detective about the police department’s apparent failure to follow up on leads about another possible suspect.  By cutting off this inquiry, the trial judge effectively prevented the defendant from presenting his only defense – that the investigation had been in-complete in ways that created reasonable doubt that the government had proved its case against him.  Alvarez v. Ercole, 2014 BL 227893, (2nd Cir., No. 13-2828-pr, 08-18-14); full text at http://www.bloomberglaw.com/public/document/Alvarez_Ercole_Docket_No_132828pr_2014_BL_227893_2d_Cir_Aug_18_

Second Circuit:  Sealing of Prison
Conditions Reports Violated
First Amendment Right of Access

The Second Circuit held that the sealing of compliance reports filed with a district court pursuant to a settlement agreement between the government and a county prison system in a case involving prison conditions violated the public’s fundamental right of access to judicial documents guaranteed by the First Amendment.  The court stated that the public’s ability to scrutinize judicial decision-making helps to assure confidence in the administration of justice.  United States v. Erie County, 2014 BL 227894, (2nd Cir., No. 13-3653-cv, 08-08-14); full text at http://www.bloomberglaw.com/public/document/United_States_v_Erie_Cnty_Docket_No_133653cv_2014_BL_227894_2d_Ci

Mississippi:  Remark About ‘Using’
Lawyer Was Invocation

The Mississippi Supreme Court held that a suspect’s comment that she had a lawyer and “I could use him” qualified as an invocation of her Miranda rights that should have halted custodial interrogation.  Downey v. State, 2014 BL 219401, (Miss., No. 2012-CT-00815-SCT, 08-07-14); full text at http://www.bloomberglaw.com/public/document/Downey_v_State_No_2012CT00815SCT_2014_BL_219401_Miss_Aug_07_2014_

Minnesota:  Impoundment Unjustified Where Driver Not Arrested

The Minnesota Supreme Court held that the impoundment and search of an unregistered and uninsured vehicle violated the Fourth Amendment where the motorist was not being arrested and remained free to make her own arrangements for the vehicle to be towed.  State v. Rohde, 2014 BL 230848, (Minn., No. A13-0610, 08-20-14); full text at http:// www.bloomberglaw.com/public/document/State_v_Rohde_No_A130610_2014_BL_230848_Minn_Aug_20_2014_Court_Op

Third Circuit:  Spending Windfall
Didn’t Justify Revocation

The Third Circuit held that a district court should not have revoked the supervised release of a defendant who made his minimum monthly restitu-tion payment after receiving an inheritance but squandered the balance.  The court found that without a condition specifically addressing windfalls, the defendant’s extravagant purchases depleting the balance of his inheritance did not justify revocation.  United States v. Bagdy, 2014 BL 232022, (3rd Cir., No. 13-2975, 08-21-14); full text at http://www.bloomberglaw.com/public/document/United_States_v_Bagdy_No_132975_2014_BL_232022_3d_Cir_Aug_21_2014