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February 16 – February 20, 2009
U.S. 1st Circuit Court of Appeals, February 19, 2009 Yeboah-Sefah v. Ficco, No. 07-2585
Denial of habeus corpus relief by district court is affirmed where the state court reasonably concluded: 1) plaintiff’s Sixth Amendment right to counsel was not violated because he made a knowing and intelligent waiver of counsel’s conflict of interest; 2) plaintiff cannot satisfy standards set forth in Strickland and adequately prove constitutionally ineffective assistance of counsel; and 3) plaintiff right to due process was not violated as he was determined to be competent a week before the trial and no evidence was brought to light indicating the competency determination needed to be revisited.
U.S. 2nd Circuit Court of Appeals, February 17, 2009 Sledge v. Kooi, No. 07-1547 In a suit brought pro se by plaintiff alleging defendant violated his Eighth Amendment rights while incarcerated, grant of defendant’s motion for summary judgment is affirmed. When facing pro se litigants who are repeat filers, absent a strong showing that the pro se litigant has acquired adequate experience more generally, a district court should limit the withdrawal of pro se litigant’s special status to specific contexts in which the litigant’s experiences indicates that he may fairly be deemed knowledgeable and experienced.
U.S. 2nd Circuit Court of Appeals, February 19, 2009 US v. Reyes , No. 06-3699 Sentence for assault in aid of racketeering activity is upheld where the district court did not engage in impermissible “double counting” of a sentencing factor when it departed upward from the recommended statutory sentencing guidelines pursuant to U.S.S.G. section 5K2, as the upward adjustment was reasonable and not legal error or an abuse of discretion..
U.S. 2nd Circuit Court of Appeals, February 19, 2009 US v. Carr, No. 06-5490 In an appeal from an amended judgment, sentence is affirmed and remanded for clerical correction of judgment where: 1) the law of the case doctrine applies, even where the district court imposes a new sentence pursuant to Booker following a remand; 2) there is no evidence that the district court abused its discretion in sentencing or that the sentence is unreasonable; and 3) there is no evidence of a plain error in sentencing that affected defendant’s substantial rights.
U.S. 2nd Circuit Court of Appeals, February 19, 2009 Lebron v. Sanders, No. 08-2054 In a habeus petition action, plaintiff’s motion for an extension of time to file motions to proceed in forma pauperis and for a certificate of appealability is granted where: 1) pro se plaintiff cannot access, without cost, from prison some of the federal case law that form a part of the substantive basis of the district court’s dismissal of his habeus petition; and 2) the court is concerned about the impact on the appearance of justice when pro se litigants may not have financial access to case authorities that form the basis of a court’s decision, thereby hampering the opportunities to understand and assert their legal rights. New local rules of the Southern and Eastern Districts of New York also oblige counsel to provide pro se litigants with copies of unreported decisions or decisions reported exclusively on computerized databases that are cited in their submissions to court.
U.S. 3rd Circuit Court of Appeals, February 18, 2009 US v. Green, No. 06-2468 Conviction and sentence for distribution of cocaine base are vacated and remanded for a new trial where: 1) the district court erred in admitting the written statement of a confidential informant as a present-sense impression; and 2) this was not harmless error.
U.S. 3rd Circuit Court of Appeals, February 18, 2009 Burkey v. Marberry, No. 07-4782 Dismissal of a habeas petition is affirmed where petitioner’s release from Bureau of Prisons (BOP) custody caused the pending petition, which challenged the BOP’s failure to grant him early release, to become moot; and 2) petitioner’s assertion of “collateral consequences” was insufficient.
U.S. 4th Circuit Court of Appeals, February 20, 2009 US v. Hood, No. 08-7019, 08-7571 Defendants’ sentences for crack cocaine trafficking are affirmed, where the sentences were not “based on a sentencing range” lowered by Amendment 706 to the Sentencing Guidelines, and thus they were ineligible for a reduction under that amendment.
U.S. 4th Circuit Court of Appeals, February 20, 2009 US v. Lindsey, No. 08-7715, 08-7728 Defendants’ sentences for crack cocaine trafficking are affirmed in part and vacated in part. Defendant was not entitled to a reduction in his sentence under Sentencing Guidelines Amendment 706 because that amendment did not lower his sentencing range.
U.S. 5th Circuit Court of Appeals, February 17, 2009 US v. Anderson, No. 07-20467 Conviction and sentence for sex trafficking of children are affirmed where: 1) a jury instruction correctly conveyed the law; 2) testimony from a prosecution witness should have been excluded, but the error was harmless; 3) the district court did not abuse its discretion in allowing expert witness testimony since the testimony was both reliable and relevant; 4) the district court properly quashed a subpoena for a judge based on the mental process rule; and 5) the district court did not err in applying sentencing enhancements, and an upward departure was not an abuse of discretion. .
U.S. 5th Circuit Court of Appeals, February 17, 2009 Avila v. Quarterman, No. 07-70029 In a dual appeal from a partial grant and partial denial of a petition for habeas corpus, denial of petition is affirmed and grant of petition is reversed where the state court’s adjudication of petitioner’s claims was not an unreasonable application of clearly established Federal law, and petitioner did not made a substantial showing of the denial of a constitutional right. .
U.S. 5th Circuit Court of Appeals, February 18, 2009 US v. Wofford, No. 08-10126 Conviction for theft from an employee benefit plan is affirmed where: 1) the district court correctly excluded defendant’s expert witness testimony as irrelevant and inaccurate as a matter of law; 2) submission of a jury instruction was not error since defendant’s counsel raised the issue covered by the instruction; 3) the combined exclusion of defendant’s expert witness testimony and the jury instruction did not deprive defendant of his constitutional right to have a jury determine his guilt on every element of the crime charged; and 4) the district court did not err in submitting another jury instruction since the evidence supported the instruction’s inclusion.
U.S. 5th Circuit Court of Appeals, February 17, 2009 US v. Ramirez-Carcamo, No. 08-30298 Conviction for illegal reentry after removal is affirmed where a removal order entered in absentia after an alien departed the country before a removal proceeding has the same effect for prosecutions as would a departure after the issuance of the removal order.
U.S. 5th Circuit Court of Appeals, February 17, 2009 Price v. Cain, No. 08-30338 Denial of a petition for habeas corpus is reversed and remanded where the facts and circumstances demonstrated by petitioner in his Batson motion were sufficient to permit the trial judge to draw an inference that discrimination had occurred.
U.S. 6th Circuit Court of Appeals, February 17, 2009 US v. Bell, No. 06-4413 District Court’s denial of Defendant’s motion to suppress evidence is affirmed. Officers who searched Defendant’s vehicle complied with the Fourth Amendment because the officers, in performing the search, did not unreasonably extend Defendant’s detention beyond the purposes of the initial stop.
U.S. 6th Circuit Court of Appeals, February 17, 2009 Dominguez v. Correctional Med. Servs., No. 08-1212 In a 42 U.S.C. section 1983 action, order denying Defendant’s summary judgment motion is affirmed, where: 1) a reasonable jury could find that Defendant acted with deliberate indifference to Plaintiff’s medical needs in violation of Eighth Amendment; and 2) Mich. Comp. Laws section 691.1407(2) did not preclude Plaintiff’s gross negligence claim.
U.S. 7th Circuit Court of Appeals, February 17, 2009 US v. Stephenson, No. 06-2574 Sentence for distribution of a controlled substance is affirmed where: 1) the district court did not err in determining that defendant was guilty of distributing crack cocaine; 2) the definition of crack cocaine is not unconstitutionally vague; and 3) the district court appropriately considered relevant conduct in calculating defendant’s sentence.
U.S. 7th Circuit Court of Appeals, February 17, 2009 US v. Woods, No. 07-4074 Conviction and sentence for conspiracy to commit bank robbery and bank robbery are affirmed over defendant’s arguments that: 1) the trial judge committed errors in the admission of evidence; 2) the evidence was not sufficient to sustain the conviction; 3) the judge improperly calculated the sentencing guidelines and did not consider the sentencing factors set out in 18 U.S.C. section 3553(a)(2); and 4) there is unwarranted disparity between his sentence and the one his accomplice and codefendant received.
U.S. 7th Circuit Court of Appeals, February 17, 2009 US v. Wise, No. 08-2794 Sentence for possession of a firearm by a felon is affirmed where an adjustment applied to defendant’s base offense level for possessing the firearm in connection with a child endangerment felony was proper, and the district court did not err in applying the maximum sentence.
U.S. 7th Circuit Court of Appeals, February 18, 2009 Huusko v. Endicott, No. 07-2660 In a collateral attack on a conviction alleging that the defendant’s appellate attorney furnished ineffective assistance of counsel by not calling a witness whom the attorney had represented in another matter, judgment against defendant is affirmed where, under the Wisconsin ethical rules, lawyers must maintain a former client’s confidences but do not have a duty to protect a former client’s current legal interests, thus there was no conflict of interest.
U.S. 7th Circuit Court of Appeals, February 18, 2009 US v. Jackson, No. 07-3849 Conviction for possession of a firearm in furtherance of a drug trafficking crime is affirmed where there was no constitutional issue after District of Columbia v. Heller, 128 S. Ct. 2783 (2008) in the criminalization of the possession of firearms in connection with drug crimes, and there was an adequate factual basis for defendant’s guilty plea.
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U.S. 8th Circuit Court of Appeals, February 17, 2009 US v. Lyons , No. 07-3216 Sentence is vacated and remanded where the district court committed procedural error in applying the advisory sentencing range for the production or trafficking of a counterfeit access device under U.S.S.G. section 2B1.1(10)(B) as there was insufficient evidence to support the specific offense.
U.S. 8th Circuit Court of Appeals, February 18, 2009 US v. Palega, No. 08-2305 Conviction and sentence for drug-related offenses are affirmed over a claim of violation of plaintiff’s Fourth and Fifth Amendment rights where: 1) the search warrant provided a description of the residence with enough accuracy to locate the intended structure, regardless of a mistake in the name specified in the warrant, and surveillance and statements from informants provided probable cause its issuance; 2) there is no clear error in the district court’s findings that the plaintiff’s consent for a urine sample was lawfully obtained; and 3) there is no clear error in the district court’s determination of the drug quantity. Case is remanded to the district court for correction of the forfeiture amount.
U.S. 8th Circuit Court of Appeals, February 19, 2009 US v. Easley , No. 08-1873 Sentence is affirmed where District Court correctly applied statutory enhancement of defendant’s sentence as a felon in possession of ammunition under U.S.S.G. section 2K2.1(b)(6). The sentencing guideline does not require a defendant to be a felon at the time of his possession of a firearm in connection with another felony offense in order for the statutory enhancement to apply.
U.S. 8th Circuit Court of Appeals, February 20, 2009 US v. Williams, No. 08-1269 Conviction and sentence for conspiracy to distribute cocaine and crack, possession with intent to distribute cocaine and crack, and possession of a firearm in furtherance of a drug trafficking crime is affirmed where: 1) there was no violation of defendant’s Sixth Amendment right to a speedy trial because the delay was not of such length to eliminate the need to show particularized prejudice and there was no evidence the delay impeded defendant’s defense or deprive him of a fair trial; and 2) there was no Speedy Trial Act violation as every motion filed by defendant, including those filed pro se, tolled the speedy trial clock.
U.S. 8th Circuit Court of Appeals, February 20, 2009 US v. Lofton, No. 08-2257 Conviction and sentence for firearms possession is affirmed where: 1) jury’s conclusion that there was sufficient evidence to show that the defendant knowingly possessed a firearm was not unreasonable; and 2) district court did not abuse its discretion in denying defendant’s motion in limine to exclude witness testimony based on government’s late disclosure as government did not act in bad faith and defendant was not prejudiced. ..
U.S. 8th Circuit Court of Appeals, February 20, 2009 US v. Martinez , No. 08-2374 Sentence for conspiracy to possess with intent to distribute and distribution of a substance containing methamphetamine is affirmed where: 1) the district court did not clearly err in assessing a statutory sentencing enhancement for firearms possession as the defendant’s possession of the firearm was related to the underlying drug offense; and 2) the district court’s brief explanation for the application of statutory sentencing guidelines was sufficient to meet procedural requirements.
U.S. 9th Circuit Court of Appeals, February 17, 2009 US v. Garcia-Cardenas, No. 08-50117 Defendant’s sentence for illegal reentry into the United States following removal is affirmed and remanded. Although the fact of Defendant’s prior conviction was not proven to a jury, the District Court did not violate the Sentencing Guidelines or Apprendi by using the conviction as a basis for increasing Defendant’s sentence.
U.S. 9th Circuit Court of Appeals, February 18, 2009 US v. Norwood, No. 08-30050 Defendant’s conviction is affirmed, as a document showing that Defendant did not receive wages during the relevant time period was nontestimonial, and thus its admission did not violate the Confrontation Clause.
U.S. 9th Circuit Court of Appeals, February 20, 2009 US v. Kincaid-Chauncey, No. 06-10544 Defendant’s conviction for wire fraud and extortion is affirmed, where the testimony of certain witnesses proposed by Defendant would be inadmissible because it constituted impeachment of cross-examination testimony by contradiction.
U.S. 9th Circuit Court of Appeals, February 20, 2009 US v. Renteria, No. 07-50471 Defendant’s conviction for arson is affirmed, where the indictment adequately alleged that the building destroyed by Defendant affected interstate commerce, as required by 18 U.S.C. section 844(i).
U.S. 11th Circuit Court of Appeals, February 18, 2009 US v. Guzman, No. 08-14077 District Court’s imposition of a special condition of Defendant’s supervised release is affirmed. The requirement that Defendant report his address was reasonably related to the factors in 18 U.S.C. section 3553(a).
U.S. 11th Circuit Court of Appeals, February 19, 2009 US v. Harrison, No. 08-12636 Defendant’s sentence for possession of a firearm is vacated and remanded, where a prior state conviction for willful fleeing is not a “violent felony” under the Armed Career Criminal Act. .
U.S. D.C. Circuit Court of Appeals, February 17, 2009 US v. Ashton, No. 07-3015 Defendant’s conviction for possession with intent to distribute PCP is affirmed, as the District Court did not abuse its discretion in excluding Defendant’s Miranda rights card from evidence and refusing to delay trial until ill defense witness recovered.
U.S. D.C. Circuit Court of Appeals, February 18, 2009 Kiyemba v. Obama, No. 08-5424 On a petition for habeas corpus, the District Court’s order granting the petition was reversed and remanded. Petitioners sought release from Guantanamo Bay into the United States, but the executive branch, not the courts, must make such determinations.
U.S. D.C. Circuit Court of Appeals, February 19, 2009 US v. $6,976,934.65, No. 07-5383 In a civil forfeiture action, summary judgment for Plaintiff is reversed. There was insufficient evidence that Plaintiff “declined to enter or reenter” the U.S. to avoid prosecution, as required by 28 U.S.C. section 2466(a)(1).
Supreme Court of California, February 19, 2009 People v. Gutierrez, No. S073253 In an automatic appeal in a death penalty case, the conviction and sentence are affirmed over claims of error regarding: 1) denial of a Marsden motion; 2) dismissal of prospective juror following contact with a prosecution witness; 3) precluding cross-examination of victim’s sister regarding a conversation with dismissed juror; 4) admission of a spontaneous statement of defendant’s son; 5) a failure to instruct regarding evaluating child testimony; 6) seizure and admission of defendant’s correspondence; 7) admission of testimony regarding defendant’s gang affiliation and intent to kill; 8) defendant’s alleged inability to fully testify; 9) trial court’s alleged disparagement of defendant in front of the jury; 10) a failure to instruct regarding third party culpability; 11) a failure to instruct that manslaughter is a lesser included offense of murder; 12) exclusion of the victim’s prior battery conviction; 13) cumulative guilt phase error; 14) a failure to instruct regarding! unanimity on aggravating factors; 15) the overbreadth of the death penalty; and 16) additional claims of sentencing error.
Supreme Court of California, February 19, 2009 People v. Scott, No. S136498 For purposes of the offense of robbery, all employees have constructive possession of the employer’s property while on duty and thus may be separate victims of a robbery of the employer’s business, assuming the other elements of robbery are met as to each employee.
Supreme Court of California, February 19, 2009 People v. Soper, No. S152667 A court of appeal’s ruling reversing a conviction for first and second degree murder, which was based on two separate charges arising from the murders of two homeless individuals, is reversed where the court of appeal erred in finding that the trial court abused its discretion by failing to sever the charged offenses.
New York Court of Appeals, February 17, 2009 People v. Elysee, No. 6opn09 Conviction for manslaughter, assault and DUI is affirmed where: 1) even if blood samples given after an accident were privileged, under the facts and circumstances of this case the privilege was overcome when the police officers executed a court order to test the samples; and 2) the supreme court did not err by not charging criminally negligent homicide as a lesser included offense of second degree manslaughter since there was no reasonable view of the evidence which would support a finding that defendant committed the lesser offense of criminally negligent homicide.
New York Court of Appeals, February 17, 2009 People v. Jackson, No. 9-10-11opn09 Sentences for attempted kidnapping and unlawful imprisonment are affirmed where the State did not violate defendants’ constitutional rights by compelling them to register as “sex offenders,” even though there was no proof that their crimes involved any sexual act or sexual motive.
New York Court of Appeals, February 17, 2009 People v. Middleton, No. ssm50mem09 The order of the Appellate Division is affirmed without costs where defendant’s constitutional arguments are unpreserved and the record supports the determination of the courts below that defendant is a level 3 sex offender.
New York Court of Appeals, February 19, 2009 People v. Guerrero, No. 12opn09 Sentence for murder is affirmed where the mandatory surcharge and crime victim assistance fee are not a part of a sentence, thus a judge need not pronounce them in a defendant’s presence during sentencing.
New York Court of Appeals, February 19, 2009 People v. Moye, No. 24mem09 Order affirmed where: 1) an attorney may not make himself an unsworn witness by supporting his case by his own or anyone else’s veracity and position; 2) the prosecutor’s vouching remarks in summation may not be excused as fair response to defense provocation; 3) the remarks were prejudicial to defendant; and 4) the trial court’s limiting instruction failed to eliminate the prejudicial effect. .
New York Court of Appeals, February 19, 2009 People v. Washington, No. ssm41ent09 Order affirmed where a mandatory surcharge, crime victim assistance fee and DNA databank fee are not components of a defendant’s sentence.
New York Court of Appeals, February 19, 2009 People v. Harris, No. ssm42ent09 Order affirmed where a mandatory surcharge, crime victim assistance fee and DNA databank fee are not components of a defendant’s sentence.
New York Court of Appeals, February 19, 2009 People v. Furet, No. ssm43ent09 Order affirmed where a mandatory surcharge, crime victim assistance fee and DNA databank fee need not be pronounced by the court at sentencing, and the lower courts’ determinations regarding reasonable suspicion and probable cause, which are mixed questions of law and fact, have support in the record and are thus beyond further review.
New York Court of Appeals, February 19, 2009 People v. Hoti, No. ssm4ent09 Order affirmed where a mandatory surcharge, crime victim assistance fee and DNA databank fee are not components of a defendant’s sentence, thus the court’s failure to pronounce the surcharge and fees at sentencing did not deprive the defendant of the opportunity to knowingly, voluntarily and intelligently choose among alternative courses of action. .
Supreme Court of Florida, February 19, 2009 Muehleman v. State of Florida, No. SC05353 Death sentence for first-degree premeditated murder is affirmed where: 1) the case involved bludgeoning, strangling, and finally suffocating of victim; 2) the trial court correctly found that the weighty aggravator of heinous, atrocious or cruel (HAC), along with the cold, calculated, and premeditated (CCP), financial gain, and avoid arrest aggravators, when weighed against only one statutory mitigator, supported a sentence of death; and 3) the death sentence in this case was proportionate.
Supreme Court of Florida, February 19, 2009 Duest v. State of Florida, No. SC07162 In conviction for first-degree murder and sentence of death, denial of post-conviction relief is affirmed over claims of error that: 1) criminal-appellant was denied a reliable adversarial testing at the guilt and resentencing phases of his trial in violation of the Sixth and Fourteenth Amendments of the U.S. Constitution and the trial court erred in summarily denying various issues attendant to this claim; and 2) criminal-appellant was denied a reliable adversarial testing at his resentencing in violation of the Sixth, Eighth and Fourteenth Amendments and the trial court erred in summarily denying this claim without an evidentiary hearing. .
California Appellate Districts, February 18, 2009 People v. Murillo, No. H032409 A judgment imposing a probation condition that requires the defendant to take any and all medication prescribed by her doctor is reversed where a medication requirement must be narrowly tailored and reasonably necessary to address an identifiable disorder, condition, or problem: 1) that defendant is currently suffering from; 2) that is reasonably related to her offense, future criminality, rehabilitation or reformation; and 3) for which medication is appropriate. The trial court did not abuse its discretion in imposing a probation condition barring defendant from possessing or consuming alcohol where the alcohol-related condition was reasonably related to defendant’s rehabilitation and reformation.
California Appellate Districts, February 19, 2009 People v. R.V., No. A121376 In appeal of a juvenile court sentence, the merits of the case are addressed although defendant’s appeal is moot because the issue is likely to recur. Probation condition requiring defendant to wear a global positioning system (GPS) device is affirmed where: 1) the juvenile court acted within its broad discretion over probation conditions; 2) wearing a monitoring device is not an invasion of defendant’s right to privacy as it is not overly intrusive, arbitrary or harassing; and 3) imposing of the monitoring condition does not deny him the equal protection of the law.
California Appellate Districts, February 19, 2009 In re David H McGraw, No. F054655 Board of Parole Hearings decision finding plaintiff not suitable for parole is reversed and remanded for reconsideration in light of intervening Supreme Court clarification of the law of parole suitability