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Disciplinary Self-Help Litigation Manual

Articles by Dale Chappell

Washington Supreme Court Announces PRP Petition ‘Final’ Upon Issuance of Certificate of Finality to Allow Tolling of Federal Habeas Clock

by Dale Chappell

Answering a question certified to the Court by the U.S. Court of Appeals for the Ninth Circuit, the Supreme Court of Washington held on February 27, 2020, that a personal restraint petition (“PRP”) is not “final” until a certificate of finality (“COF”) is issued. The question was posed by the Ninth Circuit because Washington law was unclear on when the one-year clock restarts when filing a federal habeas corpus petition after the denial of a PRP petition.

The case came before the Court in a not so unusual fashion. In 2011, Phonsavanh Phongmanivan was convicted in state court and sentenced to just over 25 years in prison. After his direct appeal was denied, he filed a timely PRP petition, which also was denied. Phongmanivan then took his PRP appeal to the Supreme Court, and on December 3, 2015, the state’s highest court denied discretionary review. On February 10, 2016, the Court denied reconsideration, and thereafter, the court of appeals issued a COF.

Just eight days after the COF, Phongmanivan filed a pro se habeas corpus petition in the federal district court, on April 9. However, the court dismissed his petition as untimely, holding that his one-year window ...

News Websites Rethink Using Mugshots as Click-Bait

Once something is on the internet, it can’t be deleted, they say. Enter the jail mugshot. Proven time and again to be an effective way to ruin someone’s life. Especially when they’re innocent. And news agencies have used them to drive traffic to their websites for years, forever memorializing the worst day of someone’s life.

And that’s why some news agencies are rethinking the use of mugshots on their websites. In January, the Houston Chronicle was the latest major newspaper to stop putting mugshots on its website of those who have been arrested but not yet convicted. In an email to the Marshall Project, Managing Editor Mark Lorado said of the decision against posting mugshots on the paper’s website, “We’re better than that.”

The paper even got an unlikely supporter: “Thank you, @HoustonChron for doing the right thing,” tweeted Jason Spencer, spokesman for the Harris County Sheriff’s Office. “I’m hopeful that other media outlets and law enforcement agencies will follow your lead and rethink the practice of publicly shaming arrested people who haven’t been convicted of a crime.”

Others have raised the same concerns. “It creates this situation when you’re criminalizing folks before they’re convicted of any ...

‘Constitutional Crisis’ Still Exists Despite California Supreme Court Ruling on Opening Access to Law Enforcement Brady Lists

The latest attempt by the California courts to “harmonize” the state’s brutally secretive police protection statutes with the U.S. Supreme Court’s ruling in Brady v. Maryland, the 1963 case holding that prosecutors must turn over favorable evidence to the defense in order to satisfy the Due Process Clause of the Constitution, is still no better even after the California Supreme Court’s recent ruling that law enforcement agencies “may” turn over their list of problem officers to prosecutors.

In Association for LA Deputy Sheriffs v. Superior Court, the Court held on August 26, 2019, that a law enforcement agency “does not violate [the Pitchess statutes protecting police officer personnel files] by sharing with prosecutors the fact that an officer, who is a potential witness in a pending criminal prosecution, may have relevant exonerating or impeaching material in that officer’s confidential personnel file.” While the media declared this a major victory for criminal defendants, the ruling is actually anything but that.

Experts who have followed the fallout from the ruling have said that California’s laws on police privacy protection remain in conflict with the Constitution’s due process requirements and undermine the rights guaranteed to defendants by the ...

How to Clear Your Record of Marijuana Charges in Illinois

While Illinois has legalized recreational marijuana and pardoned more than 11,000 people with marijuana cases, removing marijuana charges and convictions from your record may require more leg work from some who don’t qualify under the automatic clearing of certain marijuana records.

“We are ending the 50-year-long war on cannabis,” Gov. J.B. Pritzker said in a statement just after signing into law a measure that legalized recreational marijuana in Illinois. “We are restoring rights to many tens of thousands of Illinoisans,” he said.

But getting those rights restored may take a bit of work for some but will be automatic for others. Last June, Illinois became the eleventh state to legalize marijuana and was one of the first to do so through legislation instead of a vote from the public.

The new law allows removal of marijuana charges from someone’s record, which will greatly help with employment, housing, and other opportunities. So, how do you take advantage of the new law? If you have a charge or conviction for less than 30 grams of marijuana that wasn’t tied to a violent crime, the process is automatic. You don’t have to do anything. But it can take a while. ...

U.S. District Judge Blows Open ATF Fake Stash-House Stings, Wants to Know Why They Only Target Minorities

by Dale Chappell

“Psst ... Wanna make some easy money? I got this drug dealer who owes me big time. You help me rob him, and I’ll split it all with you — drugs, money, everything. You in? Good. Meet me at the High School at 10. Oh, and bring ...

Nevada Supreme Court: Duress Defense May be Used for Non-Death Penalty Charges, Even When Connected to Charges Punishable by Death

by Dale Chappell

The Supreme Court of Nevada held on December 26, 2019, that the defense of duress — as codified in NRS 194.010(8) but is not available in connection with any crime that’s punishable by death — can be asserted as a defense to a crime that is ...

Pennsylvania Supreme Court Holds Retention of Defendant’s ID Card Constitutes ‘Seizure’ for Fourth Amendment Purposes

by Dale Chappell

The Supreme Court of Pennsylvania held on January 22, 2020, that the retention of a person’s identification card by law enforcement constituted a “seizure” under the U.S. Constitution, triggering the protections of the Fourth Amendment’s prohibition on unreasonable seizures.

The case came before the Court after Harold ...

Third Circuit Holds ‘Bare’ Arrest Record Insufficient to Support Higher Sentence

by Dale Chappell

In a case that reiterated the limits a federal sentencing judge may consider at sentencing, the U.S. Court of Appeals for the Third Circuit held that when a sentencing judge relies on “bare” arrest records in a defendant’s criminal history to justify imposing a higher sentence, it ...

Seventh Circuit Holds Brain Injury May Allow Equitable Tolling to File Late Habeas Petition

by Dale Chappell

The U.S. Court of Appeals for the Seventh Circuit held on February 12, 2020, that a brain injury resulting from a stroke may be an “extraordinary circumstance” that could allow “equitable tolling” of the one-year clock for filing a petition for habeas corpus.

DeWayne Perry filed a ...

Sixth Circuit Adopts ‘Naked Eye Test’ for Altered Firearm Serial Number Enhancement

by Dale Chappell

The U.S. Court of Appeals for the Sixth Circuit adopted a “naked eye test” in holding that a firearm’s serial number is not “altered or obliterated” for a sentencing enhancement if a person must “squint” to view the number, but it’s still readable, overturning a district court’s ...

 

 

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