-December-7-11, 2009.
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U.S. Supreme Court, December 07, 2009 Michigan v. Fisher, No. 09–91 In an assault prosecution, grant of petitioner’s motion to suppress evidence that he pointed a rifle at an officer when he entered his house is reversed where the officer did not violate the Fourth Amendment because he was responding to a report of a disturbance and encountered a tumultuous situation in the house, which justified a warrantless search under the emergency aid exception.
U.S. Supreme Court, December 08, 2009 Beard v. Kindler, No. 08–992 In a capital habeas matter involving whether Pennsylvania’s fugitive forfeiture rule provided an adequate basis to bar federal habeas review of petitioner’s claims, grant of his habeas petition is vacated and remanded where a state procedural rule is not automatically “inadequate” under the adequate state ground doctrine (and therefore unenforceable on federal habeas review) because the state rule was discretionary rather than mandatory. ..
U.S. 1st Circuit Court of Appeals, December 07, 2009 US v. Leon-Quinones, No. 07-1395 Defendant’s conviction for robbing two banks and for carrying a firearm during and in relation to a robbery is affirmed where: 1) there was sufficient evidence that defendant used a real firearm during the robbery of one of the banks; 2) the district court committed no clear or obvious error in allowing a witness to identify defendant; and 3) the district court did not abuse its discretion in allowing the prosecutor to ask witnesses leading questions when they returned to the stand to identify defendant.
U.S. 1st Circuit Court of Appeals, December 11, 2009 US v. Carrasco-de-Jesus, No. 08-2463 Conviction of defendant for conspiracy to issue and use counterfeit checks is affirmed where: 1) because the government affirmatively disclaimed the waiver-of-appeal provision, there is no justification for proceeding sua sponte to inquire into its preclusive effect; 2) U.S.S.G. section 5G1.3(b) did not require the district court to impose a concurrent sentence in this case; and 3) district court’s decision to run the sentence consecutively was substantively reasonable.
U.S. 2nd Circuit Court of Appeals, December 08, 2009 Pierre v. Holder, No. 08-6217 In a petition for review of the BIA’s order removing petitioner from the U.S. for committing an aggravated felony, the petition is granted where: 1) petitioner was not charged, either explicitly or implicitly, with an aggravated felony as defined by 8 U.S.C. section 101(a)(43)(U); 2) subsection U is not a necessarily included offense under subsection M of the same statute; and 3) petitioner therefore was denied her due process rights of notice and an opportunity to be heard when the BIA sua sponte found her removable on the basis of her conviction for an aggravated felony as defined by subsection U.
U.S. 2nd Circuit Court of Appeals, December 09, 2009 Sacirbey v. Guccione, No. 06-5137 In a habeas petition challenging an order extraditing plaintiff to Bosnia, denial of the petition is reversed where the relevant arrest warrant was issued by a court that neither had jurisdiction over the matter nor authority to enforce the warrant, and thus the requirement of the Treaty for Mutual Extradition of Fugitives from Justice between the U.S. and Bosnia that an individual be “charged” with an extraditable offense had not been satisfied.
U.S. 2nd Circuit Court of Appeals, December 11, 2009 Lynch v. N.Y., No. 08-5250 In an action challenging the constitutionality of a New York Police Department (NYPD) policy that required that a breathalyzer test be administered to every NYPD officer who caused injury or death as a result of firing his or her gun, the denial of a preliminary injunction is affirmed where: 1) the district court did not make a clearly erroneous assessment of the evidence when it found that the primary purpose of the breathalyzer policy was not the NYPD’s general interest in crime control and thus fell under the “special needs” doctrine of Fourth Amendment jurisprudence; (2) the fact that crime control was one purpose-but not the primary purpose-of the breathalyzer policy did not bar the application of the “special needs” doctrine to the breathalyzer policy; and (3) based on the record at this stage of the proceedings, the breathalyzer policy was reasonable under the three-factor balancing test of the “special needs” doctrine.
U.S. 4th Circuit Court of Appeals, December 07, 2009 US v. Squirrel , No. 08-4150 In a conviction of defendants for being accessories-after-the-fact to first degree murder, judgment holding the defendants jointly and severally liable for additional restitution to the victim’s estate in the amount of $1,459,854.22 is vacated and remanded as, unless a plea agreement provides otherwise, an order of restitution under the (Mandatory Victims Restitution Act of 1996) MVRA is to be based upon the loss directly and proximately caused by the defendant’s offense, and here, the restitution paragraphs in defendants’ plea agreements do not provide a valid basis for the district court’s decision holding them jointly and severally liable to the victim’s estate under the MVRA for her lost future income from the Tribe and her lost future wages.
U.S. 4th Circuit Court of Appeals, December 07, 2009 US v. Rumley , No. 08-5269 In a prosecution for possession of a firearm by a convicted felon, district court’s denial of defendant’s motion to suppress a firearm seized from his vehicle during a traffic stop is affirmed as the district court did not commit plain error, or any error at all, in refusing to suppress the firearm as the police lawfully seized defendant’s pistol when it came into plain view before any search of defendant’s vehicle, and as such, Gant does not apply to the present facts.
U.S. 5th Circuit Court of Appeals, December 10, 2009 US v. Cooley, No. 08-30604 Defendant’s crack cocaine distribution sentence is affirmed where 1) even though the U.S.S.G. section 1B1.10 policy statement provided that the district court may grant a comparable sentence reduction, it was not compelled to do so; and 2) the fact that the district court did not mention the 18 U.S.C. section 3553(a) factors when it summarily reduced defendant’s sentence did not mean that it did not consider them.
U.S. 5th Circuit Court of Appeals, December 10, 2009 US v. Garcia, No. 08-51224 Defendant’s sentence for making a false statement in violation of 18 U.S.C. section 1001(a)(2) is affirmed where: 1) a district court may only apply a cross-reference provision under U.S.S.G. section 2B1.1(c)(3) if the facts alleged in the count of conviction support the application of that provision; and 2) the district court did not err when it referred to U.S.S.G. section 2L1.1 to determine defendant’s base offense level.
U.S. 6th Circuit Court of Appeals, December 08, 2009 Cooey v. Strickland, No. 09-4474 District court’s denial of defendant’s request for a stay of execution by lethal injection under Ohio’s new protocol where the state eliminated the use of a three-drug protocol and implemented a one-drug protocol is affirmed as the defendant is unable to demonstrate a likelihood of success on the merits on his Eighth Amendment claim by demonstrating that, facially or as applied to him, Ohio’s new protocol demonstrates risk of severe pain that is substantial when compared to the known and available alternatives.
U.S. 6th Circuit Court of Appeals, December 09, 2009 Holder v. Palmer, No. 07-1440 District court’s denial of defendant’s petition for a writ of habeas corpus following his conviction for sexual penetration with an uninformed partner by a person infected with AIDS is affirmed as defendant failed to demonstrate either that his trial counsel’s failure to challenge five jurors permeated the entire trial with obvious unfairness, or that the trial court committed plain error by allowing the five jurors to serve on the jury.
U.S. 6th Circuit Court of Appeals, December 09, 2009 Jensen v. Romanowski, No. 08-1758 Grant of habeas relief from a conviction for criminal sexual conduct with an 11 year old girl is affirmed as: 1) there was no serious dispute that a violation of the Confrontation Clause occurred via an officer’s testimony regarding a prior complainant; and 2) the officer’s testimony had a substantial and injurious effect or influence on the jury’s verdict under the Brecht v. Abrahamson test for harmless error.
U.S. 6th Circuit Court of Appeals, December 10, 2009 Spears v. Ruth, No. 09-5408 In a suit brought by the family of an individual who died eleven months after being in police custody for public intoxication, denial of a summary judgment motion by an officer and the City of Cleveland is reversed and remanded where: 1) plaintiffs have not established the obvious existence of a sufficiently serious medical need; 2) there is no evidence that the officer was aware of facts from which the inference could be drawn that a substantial risk of serious harm existed, and that he drew that inference and chose to disregard the risk; 3) as such, because no constitutional violation occurred, the officer is entitled to qualified immunity; and 4) the city is entitled to summary judgment because the record as a whole does not support an inference that a reasonable trier of fact could find a causal connection between either officer’s actions or the police chief’s no-transport policy and the decedent’s injuries.
U.S. 7th Circuit Court of Appeals, December 07, 2009 US v. Crowder, No. 08-3320 District court’s sentencing and conviction of defendant for conspiracy and attempted possession of drugs is affirmed where: 1) defendant did not have a reasonable expectation of privacy in his vehicle after he turned it over to a shipper, and because he lacked a reasonable expectation of privacy in the vehicle, he does not have standing to challenge the search of the car and subsequent seizure of the drugs hidden inside; 2) even if defendant had standing to challenge the search, the search complied with the requirements of the Fourth Amendment; 3) the district court did not err in denying defendant’s motion for a continuance; 4) defendant’s claim that his conviction should be reversed because the indictment was constructively amended is rejected; and 5) the Blockburger test should be applied at the sentencing phase to determine whether separate sentences are appropriate for the crimes charged and convicted, even where those crimes arise out of a single criminal act, and here! , defendant may be sentenced for both conspiracy and attempt.
U.S. 7th Circuit Court of Appeals, December 08, 2009 McAfee v. Thurmer, No. 09-1230 Denial of defendant’s petition for habeas relief from a conviction and life sentence for the first degree murder of a police officer 13 years ago is affirmed as defendant’s trial counsel’s performance was not constitutionally ineffective, and even if deficient performance could be found, defendant cannot show that there is a reasonable probability that the result of the trial would have been different but for counsel’s shortcomings.
U.S. 7th Circuit Court of Appeals, December 09, 2009 Woods v. Schwartz, No. 08-1234 District court’s denial of defendant’s petition for habeas relief following his conviction for murder and sentence to forty years’ imprisonment is affirmed where: 1) some of defendant’s ineffective assistance claims were procedurally defaulted as it was clear that a state court’s decision to deny defendant’s third post-conviction petition did not fairly appear to either rest on, or to be interwoven with, federal law; 2) defendant has not shown that failure to consider these claims will result in miscarriage of justice; and 3) the appellate court’s rejection of defendant’s preserved ineffective assistance of counsel claim related to his trial counsel’s failure to call a witness as an alibi witness was not contrary to or an unreasonable application of clearly established federal law.
U.S. 7th Circuit Court of Appeals, December 11, 2009 In re: Hijazi , No. 08-3060 Defendant’s petition for a writ of mandamus arising from his indictment for various fraud-related charges involving a contract with the United States Army to provide goods and services to military locations throughout the world, including Kuwait, is granted under the three conditions set forth by the Supreme Court in Cheney v. U.S. Dist. Court and the district court is ordered to rule on defendant’s motion to dismiss the indictment where: 1) even though ordinary proceedings do not provide an adequate alternative, defendant is asking for relief well within the power of the district court where, as a Lebanese citizen and resident of Kuwait, defendant is under no obligation to travel to the U.S. for his arraignment, there is no extradition treaty between the U.S. and Kuwait and Kuwait has formally refused to extradite him, and as long as the indictment hangs over defendant, he is prejudiced even if he does not travel to the U.S. as INTERPOL has been directed by U.S. to issue a! red notice to arrest defendant if he enters their jurisdiction; 2) the right to the issuance of the writ is clear and indisputable as there is no doubt that the question of how far a statute, such as the Major Fraud Act and the Wire Fraud Act, reaches out to address conduct undertaken outside the U.S. is a fundamental one, and as more than enough time has passed, defendant is entitled to a ruling on his motions now; and 3) this case is an appropriate candidate for mandamus as defendant’s arguments raise serious questions about the reach of U.S. law, and it remains to be seen whether the U.S. contacts on which the government relies are sufficient to support its prosecution. Finally, with regards to the fugitive dis-entitlement doctrine and mutuality, although the district court correctly recognized that the doctrine does not apply to defendant’s situation, the court took too narrow a view of the adverse consequences that defendant would suffer if he loses on his motion to ! dismiss.
U.S. 8th Circuit Court of Appeals, December 07, 2009 US v. Miller, No. 08-3052 In the government’s appeal from defendant’s wire fraud sentence, the sentence is affirmed where: 1) the government cited no reason why the court should not defer to the district court’s actual loss conclusion; and 2) where there was no actual loss and no intended loss, the Sentencing Guidelines did not permit the substitution of the “gain” measure for loss.
U.S. 8th Circuit Court of Appeals, December 07, 2009 US v. Hodge, No. 09-1129 Defendant’s wire fraud sentence is affirmed where the district court did not clearly err in finding that the government presented sufficient evidence to establish a nexus between defendant and each of the fraudulent life insurance reimbursement submissions at issue.
U.S. 9th Circuit Court of Appeals, December 09, 2009 Pinholster v. Ayers, No. 03-99003 In a capital habeas matter, grant of petitioner’s habeas petition is affirmed where defense counsel provided petitioner ineffective assistance at the penalty phase because: 1) petitioner properly challenged the district court’s legal conclusions, as opposed to its factual ones; 2) counsel spent almost no time preparing for the penalty phase hearing; 3) counsel failed to obtain any of the readily available medical, psychological, law enforcement, or school records for petitioner or his siblings; and 4) properly presented evidence of petitioner’s brain injury, and its profound effect on his behavior, could have altered the jury’s impressions of his detrimental guilt phase testimony and of his boastful, disrespectful demeanor by indicating an organic basis for his inappropriate expressions and for his tendency to exaggerate his past.
U.S. 9th Circuit Court of Appeals, December 09, 2009 Robinson v. Kramer, No. 07-55611 In a drug possession prosecution, denial of petitioner’s habeas petition is affirmed where petitioner never raised a claim for unconstitutional denial of his right to self-representation — i.e. to proceed without a lawyer — on direct appeal in the state courts, nor in his state habeas petition, nor in his district court habeas petition.
U.S. 9th Circuit Court of Appeals, December 09, 2009 Ewing v. City of Stockton, No. 08-15732 In a 42 U.S.C. section 1983 action alleging violations of plaintiffs’ constitutional rights arising out of the search of their home and the arrest of plaintiffs in connection with a murder they did not commit, summary judgment for defendants is affirmed where: 1) neither of an officer’s problematic representations in support of the warrant at issue was critical to the probable cause determination; 2) the issuing judge could reasonably find the information provided by a witness to be reliable under the circumstances; and 3) the language of the warrant was not overbroad.
U.S. 9th Circuit Court of Appeals, December 10, 2009 Greene v. Camreta, No. 06-35333 In a 42 U.S.C. section 1983 action alleging a student was unlawfully searched and seized, summary judgment for defendants is affirmed in part where: 1) the general law of search warrants applies to child abuse investigations; 2) however, precedent did not clearly establish that the in-school seizure of a student suspected of being the victim of child sexual abuse could be subject to traditional Fourth Amendment protections; and 3) applying the prior lower standard, defendants’ actions were not so clearly invalid as to strip them of qualified immunity. However, the order is reversed in part where: 1) there was a genuine issue of material fact as to whether defendant-social worker secured an order by misrepresenting his conversations with plaintiff-mother; and 2) social worker’s decision to exclude mother from her daughters’ medical examinations violated the parents’ clearly established familial rights under the Fourteenth Amendment.
U.S. 9th Circuit Court of Appeals, December 10, 2009 Cox v. Ayers, No. 07-99010 In a capital habeas matter, the denial of petitioner’s habeas petition is affirmed where: 1) petitioner was not prejudiced by the trial court’s decision to shackle him during the guilt phase of the trial; 2) counsel’s thorough mitigation investigation was more than reasonable; 3) further evidence about petitioner’s childhood and gang activity would have suggested violent propensities at odds with counsel’s goal of portraying petitioner as less culpable; and 4) the proposed additional evidence was mostly cumulative of the information already presented at the penalty phase trial.
U.S. 10th Circuit Court of Appeals, December 07, 2009 US v. Pena-Montes, No. 08-2169 In a prosecution for illegal reentry into the U.S. following removal, denial of defendant’s motion to suppress is vacated and remanded where the court of appeals could not determine based on the record whether the evidence of defendant’s identity needed to be suppressed in light of the police’s Fourth Amendment violation in searching defendant’s vehicle.
U.S. 10th Circuit Court of Appeals, December 10, 2009 US v. Masek, No. 08-1296 Defendant’s wire fraud sentence and restitution order are affirmed where: 1) defendant did not present evidence to bring the reliability of the government witnesses’ conservative estimates regarding the loss caused by defendant or the district court’s findings into doubt; and 2) the Sentencing Guidelines did not require a civil settlement amount to be credited against the loss figure for the purposes of calculating the sentencing range.
U.S. 11th Circuit Court of Appeals, December 07, 2009 Cummings v. Sec’y., Dept. of Corrs., No. 09-12416 In a capital habeas matter, denial of petitioner’s habeas petition is affirmed where defense counsel did not provide ineffective assistance during the penalty phase because defendant clearly instructed counsel not to investigate or present mitigation evidence, and thus the scope of counsel’s duty to investigate was significantly more limited than in the ordinary case.
U.S. D.C. Circuit Court of Appeals, December 08, 2009 US v. Motley, No. 08-3079 Defendant’s drug distribution sentence is affirmed where the government’s refusal to file a motion authorizing the court to sentence defendant below the statutory mandatory minimum sentence did not deny defendant due process because: 1) the government was not required to file an 18 U.S.C. section 3553(e) motion any time it filed a U.S.S.G. section 5K1.1 motion; and 2) it was rational for the government to conclude that, although substantial assistance may have justified substantially reducing defendant’s potential sentence, his repeated drug dealing was still sufficiently serious to require a sentence of at least 120 months’ incarceration.
Supreme Court of California, December 07, 2009 People v. Ervine, No. S054372 On automatic appeal from a conviction and imposition of a death sentence on defendant for first degree murder of a deputy sheriff and the attempted willful, deliberate and premeditated murder of a commander and two other deputies is affirmed in its entirety and all of defendant’s pretrial, guilt phase, and penalty phase issues are rejected as they are without merit. .
Supreme Court of California, December 10, 2009 People v. Butler, No. S068230 Defendant’s conviction and death sentence for the first degree murder of a fellow jail inmate, while awaiting trial for the murder of two college students, is reversed where defendant’s Sixth Amendment right to represent himself at trial was denied as the trial court erroneously decided that defendant could not adequately represent himself because of jail restrictions resulting from his disciplinary infractions, and Faretta and its progeny require reversal of the judgment in its entirety.
Supreme Court of Florida, December 10, 2009 Gore v. State of Florida, No. SC05-1848 Denial of postconviction relief of defendant convicted of and sentenced to death for first degree murder and armed robbery after his initial conviction and death sentence were overturned is affirmed where: 1) defendant’s claim of ineffective assistance of counsel in failing to advocate the issue of competency is without merit; 2) defendant’s claim of error concerning his Spencer hearing claim to be meritless; 3) trial court did not err in its ruling and any inability of current counsel to obtain the records was due primarily to defendant’s own actions in refusing his counsel access; 4) although the trial court did not err in its ruling, the Florida Supreme Court order granting an extension of time in which to file an amended motion rendered defendant’s motion timely for purposes of federal review; and 5) defendant’s remaining claims are rejected.
Supreme Court of Florida, December 10, 2009 Hayward v. State of Florida, No. SC07-1234 Conviction and sentence of death of defendant for first degree murder and other crimes is affirmed where: 1) even though admission of witness’ hearsay statement violated the Confrontation Clause, any error in admitting the statement was harmless beyond a reasonable doubt; 2) defendant’s claim that his statement at the rooming house and at the police station should have been suppressed is rejected as is his claim that the police did not have probable cause to detain or arrest him; 3) admission of recorded conversations of defendant in jail was not error; 4) given the strength of the evidence against defendant and the gravity of the aggravators, it cannot be said that the jury would not have recommended a death sentence or that the trial court would not have imposed a death sentence if the prosecutor had not made the improper victim impact comparison; 5) defendant’s challenges to Florida’s capital sentencing scheme are without merit; 6) evidence is sufficient to support the co! nvictions; and 7) death sentence in this case is proportional. .
California Appellate Districts, December 07, 2009 People v. Cason, No. E047440 Defendant’s conviction for pimping and pandering while on probation for two prior felonies is affirmed as defendant’s claim that the two witnesses were both accomplices and co-conspirators whose testimony was worthless is rejected.
California Appellate Districts, December 08, 2009 In re S.C., No. A123371 Juvenile court’s determination that the juvenile-defendant be a ward of the court and placed on probation after concluding that he was in possession of a switchblade knife is affirmed as Penal Code section 653k is violated any time a person carries a switchblade knife on his or her person, regardless of where the possession occurs.
California Appellate Districts, December 09, 2009 People v. O’Neal, No. B209612 In an administrative action brought by the Commissioner of Corporations against defendant for the offer and sale of unqualified, not-exempt securities, and fraud in the offer and sale of securities, trial court’s judgment is affirmed where there is no limitation that the Commissioner may seek restitution only on behalf of those who were in privity with defendant, and as such, the Commissioner may seek restitution on behalf of any person injured by the violation. .