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Prison Profiteers

Articles by Dale Chappell

Sixth Circuit Grants Habeas Relief After Michigan Court Violates Confrontation Clause

The U.S. Court of Appeals for the Sixth Circuit held on April 7, 2020, that a Michigan court’s violation of a defendant’s right to confront the witness against him in court was not “harmless,” as the state court had held, and granted habeas corpus relief requiring his release or a new trial.

There was no dispute that the State violated Joseph Reiner’s constitutional right to confront its witness against him. The State admitted as much, after it used a statement made by the broker of a pawn shop that Reiner had been in the shop on the day of a home invasion and stabbing that lead to the death of a woman in Macomb County in 2011. Reiner was charged with several counts, including murder.

The State’s case relied heavily on the pawn broker’s statement. He told detectives that Reiner came in the shop on that day and threw “some items” on the counter and asked what they were worth. When the detective asked about a ring he saw in a canister matching the description of a ring taken from the victim, the broker said it was possible that Reiner had brought in the ring to pawn. ...

Ninth Circuit: Mental Impairment that Prevented ‘Monitoring’ of Habeas Counsel’s Actions May Require Equitable Tolling

The U.S. Court of Appeals held on March 25, 2020, that a prisoner’s mental impairment that prevented him from “monitoring” his habeas counsel’s actions, which led to the delayed filing of his state habeas petitions, may have been cause for equitable tolling with respect to the late filing of his federal habeas petition.

Thomas Milam is serving a life sentence in a California state prison. His family hired a lawyer, Stratton Barbee, to file a state habeas corpus petition in 2007. The petition was filed just months after Milam’s conviction became final in 2008, and it was denied two months later on the merits by the state trial court. But Barbee didn’t file an appeal until nearly eight months later, and when that was summarily denied, he filed an appeal with the California Supreme Court over three months later. [Writer’s note: California has a unique habeas system, where an “appeal” is taken by simply filing another habeas petition in the next highest court, and there is no time limit as long as it’s filed within a “reasonable time.” Valdez v. Montgomery, 918 F.3d 687 (9th Cir. 2019).]

Milam’s family then hired a new lawyer, ...

Texas Court of Criminal Appeals: Failure to Include ‘Or Others’ in Jury Instruction for Self-Defense Against Multiple Assailants Deprived Defendant of Defense

The Texas Court of Criminal Appeals (“TCCA”) held on February 5, 2020, that the failure to include “or others with him [the primary assailant]” in the jury instruction for a self-defense against multiple assailants defense was a “calculated” omission that deprived a defendant of his defense, requiring reversal of the conviction.

Patrick Jordan was encouraged by an ex-girlfriend, Summer Varley, to stop by a local bar to buy her a drink since he was moving out of town. Jordan and his friend Coby Bryan already planned to eat at a restaurant next to the bar, so he agreed. When they arrived at the bar, the two were met by Varley’s large, angry friends, who had been drinking and advised Jordan not to speak to Varley. Jordan agreed and they went next door to eat.

Varley’s friends, Jordan Royal, Austin Crumpton, Damon Prichard, and Joshua Stevenson, followed Jordan and Bryan and became “aggressive” with them. Jordan and Bryan then changed their minds about eating there and tried to leave. However, Varley’s friends turned violent, with Royal knocking out Bryan. Jordan fell and the mob followed him, with Royal attacking him.

Jordan then stopped the attack by shooting his ...

Federal District Court Finds ‘Confusion’ Over Law in State Court Excused Late Filing of § 2255 Motion

Finding confusion in the state courts over the status of the law and obstacles put in place by the federal prison system that hindered filing for relief, the U.S. District Court for the District of Vermont granted resentencing, excusing the late filing of a motion to vacate a sentence under 28 U.S.C. § 2255.

Federal prisoner Shawn Simard filed a motion to vacate his sentence under § 2255 after he successfully challenged a prior conviction in state court that was used to double his federal sentencing range. He had been convicted of possession of child pornography under 18 U.S.C. § 2252(a)(4)(B) and sentenced in 2012 to just over 10 years in federal prison without parole, under a 10-year mandatory minimum for having a qualifying prior sex offense in Vermont. Without the prior conviction, Simard faced up to 10 years in prison.

Simard’s motion was filed five years after his sentencing and three years after that sentence became “final,” but he argued that his motion was filed within the one-year limit of § 2255 because he had filed it within one year of the vacatur of his prior conviction by the state court.

The magistrate judge assigned to ...

Seventh Circuit Reiterates IAC Requires Only ‘Reasonable Probability,’ Not ‘More Likely Than Not,’ of Different Outcome

The U.S. Court of Appeals for the Seventh Circuit held that the federal district court unreasonably applied “clearly established federal law” when it erroneously required a more demanding standard of review than the law requires for ineffective assistance claims (“IAC”) where trial counsel was clearly ineffective, requiring remand to grant habeas relief.

The state trial court agreed that Terez Cook’s trial lawyer was ineffective. Cook lost at trial after numerous errors prompted the trial judge to grant him a new trial, saying that counsel’s “deficiencies are so big that I would have to conclude if it had been tried correctly, that there’s a probability of a different result.”

When the State appealed, the Wisconsin Court of Appeals reversed, holding that Cook would not have won at trial absent the errors. Cook then filed a habeas corpus petition in federal court, raising several IAC claims. The district court found that the state court of appeals had in fact applied the wrong IAC standard but nonetheless concluded it was required to give deference to the state courts, so it denied Cook’s petition. He appealed.

Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), a federal court may not grant ...

U.S. Supreme Court Justice Files Statement on Court’s Refusal to Hear Habeas Case, Despite Deep Circuit Split

While the U.S. Supreme Court refused to hear a case to settle a deep and widening split among the federal courts, the Court’s newest justice filed a statement on March 23, 2020, saying that he would grant certiorari in the “right case” to resolve a problem that even the government admits needs fixing.

In his statement, Justice Kavanaugh seemed to suggest that the U.S. Court of Appeals for the Sixth Circuit was wrong in the way it denied habeas relief to Edwin Avery, who filed a motion to vacate his federal prison sentence under 28 U.S.C. § 2255 based on a retroactive change in federal law by the Supreme Court. The problem was that Avery was denied relief by the district court, and instead of appealing, he filed an application in the Sixth Circuit for authorization to file another § 2255 motion raising the same claim.

The Sixth Circuit granted him permission to file another motion in the district court, but the district court dismissed his motion, saying he was barred from filing the same claim he had filed in his earlier motion. When he appealed that denial, the Sixth Circuit agreed and instructed that Avery’s motion ...

Fifth Circuit Finds IAC for Failure to Object to Court’s Jury Instructions that Constructively Amended Indictment by Lowering Government’s Burden of Proof

The U.S. Court of Appeals for the Fifth Circuit ruled on March 31, 2020, that the district court’s constructive amendment to an indictment that allowed the Government to prove its case with an alternative, lower standard constituted ineffective assistance of counsel (“IAC”) where trial counsel failed to object to the error.

The Tagged.com profile said she was 18, so Brian Phea made arrangements for the teen to come to Texas and engage in prostitution. He was charged with the prostitution of a minor — because the girl, K.R., was actually 14. Count one of the indictment charged Phea “knowingly recruited ... Jane Doe knowing that Jane Doe had not attained the age of 18 years and that Jane Doe would be caused to engage in a commercial sex act.” 18 U.S.C. § 1591(a). Count two charged aiding and abetting the promotion of a business enterprise involving prostitution.

Phea took his case to trial, where the district court gave this jury instruction: “If the government proves beyond a reasonable doubt that the defendant had a reasonable opportunity to observe the person recruited ... then the government does not have to prove that the defendant knew that the person ...

U.S. Supreme Court Rejects Fifth Circuit’s Rule Barring Plain-Error Review of Unpreserved Factual Arguments

In an opinion that amounted to just three paragraphs, the Supreme Court of the United States held on March 23, 2020, that the Fifth Circuit’s rule barring plain error review for unpreserved factual errors had “no legal basis,” and the Court vacated the lower court’s decision and remanded for review in the first instance.

When Charles Davis was convicted of drug and firearm charges after his 2016 arrest in Dallas, Texas, he was sentenced to just under five years in federal prison. But the judge ordered that sentence to run consecutively to whatever sentence the Texas state court would impose for offenses that occurred a year earlier. Davis never objected to his sentence.

Instead, on appeal to the U.S. Court of Appeals for the Fifth Circuit, Davis raised for the first time that the district judge should have run the sentences concurrent because the offenses were of the “same course of conduct” as provided under United States Sentencing Guidelines (“USSG”). Under USSG § 5G1.3(c), a federal sentence must run concurrent with any future state sentence “that is relevant conduct to the instant offense of conviction under ... § 1B.1.3 (relevant conduct).”

But the Court of Appeals refused ...

Federal Court Overturns Conviction for Person Linked to Former Subway Spokesperson’s Child Porn Case

The U.S. District Court for the Southern District of Indiana overturned the conviction of Russell Taylor, a person linked to Jared Fogle’s child pornography case, finding that Taylor’s counsel failed to advise him that “the government never really had a case” with some of the charges it filed, before advising him to plead guilty, the Court said.

Taylor pleaded guilty in 2015 to 12 counts of producing child pornography and one count of possessing child pornography, after a woman told Indiana State Police that during a sex chat Taylor suggested to her he had images of “young girls.” Based on this information, law enforcement obtained a search warrant and found that Taylor had hidden cameras in his house that had captured images of minors showering and changing clothes. Authorities also found that Taylor had sent some images to Fogle, the longtime pitchman for Subway and founder of the Jared Foundation. Taylor worked closely with Fogle as the head of his foundation.

Fogle was also arrested and charged with receipt of child pornography and further charged with traveling to engage in sexual conduct with minors for going to New York City to have sex with two underage prostitutes. ...

Study Sheds Light on ‘Recidivism’ and Probation and Parole Violations

While this country has the highest rate of incarceration in the world, with 2.3 million of its residents in prison, it also has the alarmingly high rate of people on probation or parole: 4.5 million.

In other words, 1 in 55 adults in this country is on probation or parole. And of those 4.5 million, 40 percent will be re-arrested within one year of release and 70 percent within three years.

The Institute for Justice Research and Development (“IJRD”), a research center within the College of Social Work at Florida State University, filed its sixth quarterly report shedding some light on what the re-arrest of those who are on supervision means. Here’s what the multi-year study found.

Purpose of the Study

The study states up front that its focus is not about the rate of recidivism. Instead, the focus of the report is to highlight the impact that re-arrest of those on supervision has on them, their families, and society as a whole. The authors provide facts that might show re-arrest for non-criminal conduct could do more harm than good.

The idea, the authors say, is to create change by providing facts about supervision and recidivism and ...

 

 

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