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Prisoner Education Guide

Articles by Dale Chappell

Delaware Supreme Court Describes What Constitutes ‘Effective’ Counsel at Sentencing

by Dale Chappell

Providing a lesson on what defense lawyers should and should not do to get their client a lower sentence, the Supreme Court of Delaware held that counsel was ineffective when he met with his client for the first time just minutes before sentencing and did not coach him on allocution.

There was no doubt that Darius Harden’s crime called for a serious sentence, the Court said, but his defense lawyer’s lack of assistance was too much to ignore. Harden, who pleaded guilty in 2014 to offensive assault second degree and endangering the welfare of a child for physically assaulting his girlfriend in front of her child, went into his sentencing hearing expecting to receive no more than the 15 years in prison. The State had agreed to recommend 15 years as part of a plea agreement. Instead, he received 18 years.

Harden then filed a Rule 61 motion for post-conviction relief, claiming that his counsel was ineffective during the sentencing phase. The superior court, though, denied his motion, holding that the record supported the 18-year sentence, so Harden was not prejudiced by counsel’s ineffective assistance. Harden appealed, and the Delaware Supreme Court agreed to hear his case ...

Pennsylvania Supreme Court Holds Any Search of Cellphone Requires Warrant

by Dale Chappell

The Supreme Court of Pennsylvania made it clear: “If a member of law enforcement wishes to obtain information from a cellphone, get a warrant.” The Court held that turning on, as well as digging into a cellphone to obtain its number, constituted a search each that required a warrant, tossing all evidence against a murder suspect.

Michael Toll called 911 and said he had been shot. Police arrived to find Toll sitting in a car with a cellphone in his hand. He told police “Jeff” shot him. In Toll’s cellphone was a contact named “Jeff” who had been called shortly before the shooting. Toll died from his wounds.

In an unrelated incident, police arrested I. Dean Fulton the same day Toll died. Upon arrest, police seized a smartphone from Fulton. Detective John Harkins of the Philadelphia Police Department turned on Fulton’s phone and searched the phone’s menu to find its number.

It was then that Harkins linked Fulton to Toll as the “Jeff” Toll called before he was murdered. Harkins also left the phone on and monitored the incoming calls and texts, even answering a call on the phone from a person who agreed to meet ...

Wyoming Supreme Court Adopts ‘Castle Doctrine’ for Cohabitants

by Dale Chappell

In a case of first impression before the Supreme Court of Wyoming, the Court held that a cohabitant who attacks another cohabitant in their shared home may raise the “castle doctrine” in a self-defense argument, defending her use of force to protect herself from the other cohabitant.

When Misty Widdison was staying with her uncle in 2016, they got into an argument, and Widdison stabbed her uncle in the leg and neck. After a jury trial, she was convicted and sentenced to prison for attempted second-degree murder and aggravated assault. In her appeal to the Wyoming Supreme Court, she argued that the district court improperly refused to instruct the jury about the “castle doctrine” of self-defense in her use of force to defend herself.

The castle doctrine provides that a person may “stand his ground and kill his assailant if he is assaulted, without fault, in his own home.” Drennen v. State, 311 P.3d 116 (Wyo. 2013). Known by various names, the castle doctrine is not new; a majority of the states have such a rule allowing people to “stand their ground” when being attacked in their home.

But whether a person has the right ...

Eleventh Circuit Clarifies When a Court Must Conduct Resentencing Following § 2255 Relief

by Dale Chappell

In an issue of first impression for the U.S. Court of Appeals for the Eleventh Circuit, the Court clarified when a district court must hold a resentencing hearing, rather than summarily “correcting” a sentence, when granting relief under 28 U.S.C. § 2255.

In the wake of courts granting § 2255 relief based on the U.S. Supreme Court’s retroactive decision in Johnson v. United States, 135 S. Ct. 2551 (2015), holding the Armed Career Criminal Act (“ACCA”) residual clause unconstitutional, numerous prisoners saw their mandatory ACCA sentences vacated, but the remedy imposed by the courts sometimes did not make any difference at the end of the day.

While the unconstitutional ACCA sentence was vacated, courts were leaving the rest of the sentence intact, by simply “correcting” the sentence by removing the ACCA sentence on the record.

The unanswered question was when must a court conduct a resentencing hearing and when may it merely “correct” a sentence under section 2255? The Eleventh Circuit has finally answered that question.

When Jazzman Brown learned his § 2255 motion was granted and his 15-year mandatory minimum ACCA sentence was vacated in light of Johnson, he was surprised to ...

Virginia Supreme Court Grants Relief Under Revised Actual Innocence Statute

by Dale Chappell

The change of a single word in Virginia’s actual innocence statute “fundamentally changed the nature” of actual innocence inquiries, the Supreme Court of Virginia announced, finding a petitioner proved his actual innocence under the revised statute.

In 1978, Roy Watford pleaded guilty to the rape of a 12-year-old girl. When a DNA test in 2016 showed that he was not linked to the DNA evidence found at the crime scene, he petitioned the Virginia Supreme Court for a writ of actual innocence. After an evidentiary hearing during which the rape victim testified that she “could not remember” identifying Watford as her attacker and other witnesses said Watford was not in the area on the day of the rape, the State still urged the Court to dismiss Watford’s petition because he could not conclusively establish he was not one of the three men who had raped the girl and because he pleaded guilty. The Supreme Court did not agree.

The General Assembly lowered the burden of proof in 2013 for petitioners filing actual innocence petitions under Code § 19.2-327.5. Instead of having to prove “no rational trier of fact could have found proof beyond a reasonable ...

Colorado High Court Clarifies Crime-Fraud Exception to Attorney-Client Privilege

by Dale Chappell

In a case of first impression, the Supreme Court of Colorado held February 5, 2018, that a party seeking to invoke the crime-fraud exception to the attorney-client privilege must demonstrate “probable cause” that a crime or fraud is being committed by the client’s communications with his or her attorney.

When the State subpoenaed attorney Amy Brimha to produce her communications with her client, M.W., the owner of a company suspected of manufacturing herbal cigarettes laced with synthetic cannabinoids, she filed a motion to quash the subpoena, citing the attorney-client privilege.

The State, however, argued the crime-fraud exception to the attorney-client privilege applied because Brimha’s communications with M.W. helped to further his criminal conduct. Brimha countered that M.W.’s alleged criminal conduct had curtailed when she was retained, thus the crime-fraud exception did not apply since her communications with him did not involve a “continuing or future” crime. However, the district court agreed with the State and ordered Brimha to turn over her communications with M.W. to the State.

Before turning them over, Brimha petitioned the Colorado Supreme Court to determine (1) whether the crime-fraud exception applies and (2) whether the State was required ...

California Supreme Court Vacates Conviction and Death Sentence After Experts Recant Testimony

by Dale Chappell

The Supreme Court of California granted a writ of habeas corpus and vacated a first-degree murder conviction and death sentence after several of the experts who testified at trial recanted their testimony over 25 years later.

Vincent Benavides was convicted of first-degree murder and sentenced to death for the supposed sexual assault that led to the death of his girlfriend’s 21-month-old daughter in 1991. At the trial, the State relied on the opinions of doctors who had treated the victim and testified that she had died of blunt-force trauma to her abdominal organs as a result of a sexual assault. Over two decades later, those doctors and other caregivers recanted their stories, and admitted that had they actually reviewed the victim’s medical records, they would have concluded she was not sexually assaulted.

Benavides offered new declarations obtained to support his petition for relief. One doctor declared that the injuries “could not have physically” been the result of sexual assault. Another doctor who earlier testified the victim died as a result of being sodomized declared, “it is now my opinion to a high degree of medical certainty” the victim was not sexually assaulted. A doctor characterized as “the ...

Colorado Supreme Court: ‘Entry of Judgment’ for New Trial Motion Means Both Conviction and Imposition of Sentence

by Dale Chappell

“Entry of judgment” for purposes of a motion for new trial under Criminal Procedure Rule 33(c) means the finding of guilt and the imposition of a sentence, the Colorado Supreme Court held on January 22, 2018, finding a defendant’s motion for new trial was timely filed.

Fifteen months after David Bueno was found guilty by a jury for the murder of a fellow prisoner, but before he was sentenced, the State disclosed evidence it had in its possession since the first days of the investigation that could have changed the outcome of his trial.

Bueno filed a motion for a new trial under Rule 33(c), arguing the State had purposely withheld the exculpatory evidence. The State opposed his motion on the basis that it was filed more than one year after the date of his conviction and was thus time-barred. The trial court disagreed and granted a new trial, and the court of appeals affirmed the trial court’s decision. The State appealed to the Supreme Court of Colorado.

The questions before the Supreme Court were (1) whether Bueno’s motion for a new trial was timely filed and (2) whether the State had improperly withheld exculpatory ...

DOJ: Police Shooting Family Dogs has Become ‘Epidemic’

by Dale Chappell

Cops in this country kill so many dogs each year that a specialist at the Department of Justice’s (“DOJ”) community-oriented program services office says it has become an “epidemic.” The DOJ estimates that around 25 to 30 dogs are killed by cops every day, with some numbers as high as 10,000 per year. The totals could, in fact, be higher, since most police agencies do not formally track officer-involved shootings involving animals.

In Detroit, cops killed at least 25 dogs in 2015 and 21 before the first half of 2016. According to police records, two detectives had killed at least 100 dogs between them over the course of their careers. Meanwhile Metro Atlanta cops kill on average 50 dogs per year, and a Buffalo, New York, news channel investigation found that police there killed 92 dogs over three years, with one officer having killed 26 himself.

The pet owner’s recourse to hold cops accountable for killing a family pet, though, is not easy. The law provides “immunity” for cops unless their actions were “plainly incompetent” or they violated the law, according to the courts. Dogs are considered “property” under the U.S. Constitution’s Fourth Amendment ...

S.C. Supreme Court Rules Counsel’s Failure to Recognize Ex Post Facto Issue in Advising Defendant to Accept Plea Deal Constituted IAC

by Dale Chappell

The Supreme Court of South Carolina found that counsel’s advice to a defendant to take a plea deal to avoid the State’s threat to use a new, harsher sentencing law if he refused to plead guilty was “clearly deficient.” Therefore, the Court reversed the post-conviction relief court’s dismissal of defendant’s application.

Michael Robinson was indicted in 2013 on charges of first-degree criminal sexual conduct (“CSC”) with a minor. The alleged conduct occurred between 1998 and 2000. Between 2001 and 2012, the CSC statute was amended by increasing the applicable sentencing range. The State offered “to let” Robinson plead guilty under the sentencing law in effect prior to the 2012 amendment (0 to 30 years imprisonment); the State warned that if he refused the plea deal he would be subject to the harsher sentencing range implemented by the 2012 amendment to the CSC sentencing statute (25 years to life imprisonment) if he went to trial.

Apparently unaware that the 2012 sentencing range was not applicable to Robinson under any circumstance due to the prohibition against ex post facto criminal laws, his lawyer advised him to accept the plea deal. Based on his lawyer’s advice, Robinson pleaded guilty ...


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