December 7, 2009.
Update from the Lexis Alert Service,
1. People v Basbus, 1649, 2759/05, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2009 NY Slip Op 8964; 2009 N.Y. App. Div. LEXIS 8782, December 3, 2009, Decided, December 3, 2009, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
November 30-December-4, 2009.
To view the full-text of cases you must sign in to FindLaw.com. All summaries are produced by Findlaw.
U.S. Supreme Court, November 30, 2009 Porter v. McCollum, No. 08–10537 In capital habeas proceedings, circuit court’s order reversing a district court’s grant of a habeas petition is reversed where it was objectively unreasonable for a state court to conclude that there was no reasonable probability the sentence would have been different if the sentencing judge and jury had heard the significant mitigation evidence that petitioner’s counsel neither uncovered nor presented, including evidence of petitioner’s mental health or mental impairment, his family background, or his military service.
U.S. 1st Circuit Court of Appeals, December 01, 2009 US v. Willings, No. 09-1334 In a prosecution for robbery of a federal bank through the use of a dangerous weapon, district court’s imposition of a sentence designating defendant as a career offender under U.S.S.G. section 4B1.1(a) is affirmed as escape from secure custody is a crime of violence within the purview of the career offender guideline.
U.S. 1st Circuit Court of Appeals, December 03, 2009 US v. Hersom, No. 07-2401 Defendant’s conviction for maliciously destroying by fire a building owned by an institution receiving Federal financial assistance in violation of 18 U.S.C. section 844(f) is affirmed where: 1) in general, the statute should be limited to arson of property acquired, renovated, or leased using federal financial assistance; 2) section 844(f) is constitutional and it applies to defendant’s conduct in this case; but 3) defendant’s sentence is vacated and remanded in light of US v. Giggey to determine whether defendant’s second career offender predicate is a crime of violence.
Continue reading
November 30-December-4, 2009.
To view the full-text of cases you must sign in to FindLaw.com. All summaries are produced by Findlaw.
——————————————————————————–
U.S. 1st Circuit Court of Appeals, December 03, 2009 US v. Hersom, No. 07-2401 Defendant’s conviction for maliciously destroying by fire a building owned by an institution receiving Federal financial assistance in violation of 18 U.S.C. section 844(f) is affirmed where: 1) in general, the statute should be limited to arson of property acquired, renovated, or leased using federal financial assistance; 2) section 844(f) is constitutional and it applies to defendant’s conduct in this case; but 3) defendant’s sentence is vacated and remanded in light of US v. Giggey to determine whether defendant’s second career offender predicate is a crime of violence. ..
U.S. 1st Circuit Court of Appeals, December 03, 2009 Lopez v. Commonwealth of Massachusetts, No. 09-1664 In minority police officers’ disparate impact race claim under Title VII against a state agency that prepares and administers promotional examinations for local police officers under the state civil service system, their employers, various cities, and the Massachusetts Bay Transportation Authority (MBTA), district court’s denial of Eleventh Amendment immunity for the state defendants, the state of Massachusetts and a chief human resources officers of the Human Resources Division (HRD) in his official capacity, is reversed where: 1) the state defendants do not qualify as employers as that term is used in Title VII; 2) HRD cannot be deemed plaintiffs’ de facto employer as it exercised no control, direct or indirect, over the factors relevant to the common law agency test; and 3) plaintiffs’ alternate theories why HRD should be considered their employer under Title VII are rejected.
U.S. 4th Circuit Court of Appeals, December 02, 2009 Francis v. Giacomelli, No. 08-1908 In a case brought by a police commissioner and his deputies following a highly public dispute with the mayor of Baltimore resulting in the termination of their employment, dismissal of the action is affirmed as, based on the facts alleged in the complaint, the complaint fails to articulate any claim for relief that is plausible on its face. Furthermore, the mayor, against whom the allegations of due process violations were directed, is entitled to qualified immunity.
Continue reading
Title: The Ethics of Representing Organizations: Legal Fictions For Clients
Authors: Lawrence J. Fox Susan R. Martyn
Publisher: Oxford University Press (New York)
GungaWeb is an online tool that assists analysis of New York criminal cases with respect to sentencing, lesser included offenses, plea bargaining restrictions, charging and offense elements.
Detailed sentencing reports for all Penal Law offenses plus DWI and,now for 2009, Aggravated Unlicensed Operation of a Motor Vehicle (VTL511). Dynamic detailed and summary reports of lesser included and greater inclusory offenses. Commentary on pertinent legislative amendments included.
Current subscribers include over 100 New York judges and law clerks.
Top Ten Stories for week ending December 4, 2009.
Editor’s Note: The 3rd Annual ABA Journal Blawg 100 is now online! Readers are invited to browse the list and are encouraged to register to vote for their favorites.
U.S. Supreme Court A ‘Somewhat Tense Moment’ as Justices Consider Discharge of Student Loans
Another Bite at the Apple: A Guide to Section 2255 Motions for Federal Prisoners
By Janice L. Bergmann
Today, the writ of habeas corpus is a federal remedy primarily used by state prisoners to challenge their conviction or sentence. Habeas corpus was also the primary post conviction remedy for federal prisoners until 1948, when Congress adopted Section 2255. Congress intended Section 2255 to supersede habeas corpus as the means by which federal prisoners could challenge the lawfulness of their incarceration, but nonetheless Aafford federal prisoners a remedy identical in scope to federal habeas corpus.
Another Bite at the Apple: A Guide to Section 2255 Motions for Federal Prisoners is the first book of its kind to focus on the special procedures and concerns that arise when a prisoner moves to Avacate, set aside, or correct a federal conviction or sentence under Section 2255.
This book is especially important now as Section 2255 proceedings have become significantly more complex with the enactment of the Antiterrorism and Effective Death Penalty Act, and federal courts continue to struggle with the interpretation of the AEDPA=s provisions. This book examines the various legal and practical questions that may be encountered in section 2255 proceedings, including those posed by the AEDPA. This book is an essential resource for anyone wanting an introductory education about section 2255, or experienced practitioner looking for an in-depth analysis. This important book is the perfect handbook for the in the litigation of noncapital section 2255 proceedings.
This book examines:
-An Overview of Section 2255 Proceedings, including the relationship of Section 2255 to other federal postconviction remedies
-Timing Considerations, including the statute of limitations
-Section 2255 Jurisdiction, including custody and mootness, and cognizable claims
-Obstacles to Relief, including retroactive application of Teague v. Lane and Fourth Amendment claims
-Proceedings Before the District Court, including motion, summary proceedings, relief and postjudgement motions
-The Appeal and Subsequent Motions, including perfecting the appeal and second or successive motions
-Finally, an appendix contains the full text of section 2255 and the rules governing 2255 proceedings.
Product Details: 5090118 Regular Price: $99.95 CJ Section Member Price: $84.95 ©2008 6 x 9 – Paperback 327 pages
________________________
Human Rights and the Alien Tort Statute Law, History and Analysis
by Peter Henner
This unique book addresses the legal interpretations and practical implications of the Alien Tort Statute (ATS), which has become the primary vehicle for international human rights litigation in United States courts in the last thirty years. It places the Alien Tort Statute in perspective, from its original enactment as a jurisdictional statute in 1789, through its evolution into a vehicle for human rights litigation. It includes in-depth analysis of legal decisions and describes the theoretical issues, practical considerations, and anticipated prospective development of the statute. It also examines the relationship between the Alien Tort Statute and two issues which have received particular attention during the Bush administration: the use of torture by United States officials and the practice of extraordinary rendition.
“Whether you are a trial lawyer representing plaintiffs or defendants in the expanding field of ATS litigation or a federal judge faced with deciding the complex jurisdictional and immunity questions which such litigation presents, you will want a copy of Peter Henner’s Human Rights and the Alien Tort Statute. In this readable, lucid and logically organized text, Peter Henner has covered it all from the history of the Alien Tort Statute’s enactment in 1789 to recent efforts to bring cases against the United States.”
Hon. Stewart F. Hancock, Jr.
Retired Associate Judge, New York State Court of Appeals
Product Details:
Regular Price: $109.95 Section Member Price: $87.95
©2009 6 x 9 – Paper 492 pages Product Code:
1620419 _________________________ Continue reading
Projected publication dates from July 2009 to September 2010*
Sorted in ascending order by projected publication date:
Title: Criminal Law and Procedure for the Paralegal
Author: Gary W. Carter
Publication Date: July 2009
Publisher: Wolters Kluwer Law & Business
Market: United States
ISBN: 0-7355-7012-4
ISBN 13: 978-0-7355-7012-2
Binding Format: Trade Paper
Price: $95.95(USD) Retail (Publisher)
—————————————
Title: International Children’s Rights
Author: Sara Dillon
Publication Date: November 2009
Publisher: Carolina Academic Press
Market: United States
ISBN: 1-59460-115-1
ISBN 13: 978-1-59460-115-6
Binding Format: Trade Cloth
Price: $100.00(USD) Retail (Publisher)
—————————————
Title: The Criminal Cases Review Commission: Hope for the Innocent?
Contributor: Michael Naughton (Editor)
Publication Date: December 2009
Publisher: Palgrave Macmillan
Market: United States
ISBN: 0-230-21938-1
ISBN 13: 978-0-230-21938-0
Binding Format: Trade Cloth
Price: $90.00(USD) Retail (Macmillan)
—————————————
Title: Real Law Stories: Inside the American Judicial Process
Author: Richard A. Brisbin John C. Kilwein
Publication Date: December 2009
Publisher: Oxford University Press, Incorporated
Market: United States
ISBN: 0-19-973359-7
ISBN 13: 978-0-19-973359-0
Binding Format: Trade Paper
Price: $22.95(USD) Retail (Publisher)
Continue reading
I received the following letter from the ABA Journal along with a request to send it along to our readers. I urge all of you to contribute to the Blawg 100 conversation.
David Badertscher
Dear Blawgger,
CLLB Abstract Prepared by Michael Chernicoff
http://blogs.sciencemag.org/scienceinsider/2009/11/fmri-evidence-u.html
The defense lawyer for Brian Dugan, an Illinois man convicted of raping and killing a 10-year-old girl, used fMRI brain scans as evidence during the sentencing phase of his trial show that their client should be spared the death penalty because he has a brain disorder. The defense argued that Dugan was born with a mental illness – psychopathy. This, said the defense, should be a mitigating factor since it impaired his ability to control his behavior.
