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Articles by Matthew Clarke

First Circuit Announces No Joint Participation Exception to Spousal Testimonial Privilege

by Matt Clarke

The U.S. Court of Appeals for the First Circuit declined to recognize a joint participation exception to the spousal testimonial privilege for married criminal co-conspirators. In deciding upon this issue of first impression in the circuit, the Court affirmed the district court’s determination that such an ...

Minnesota Supreme Court Holds Sentencing Guidelines 
at Time of Offense, Not Time of Sentencing, Controls for Purposes of Calculating Criminal History Score

by Matt Clarke 

On August 15, 2018, the Supreme Court of Minnesota held that the classification of a previous offense used to calculate a defendant’s criminal history under Minnesota Sentencing Guidelines 2.B.7.a is controlled by the offense definitions and sentencing policies in effect at the time ...

West Virginia Supreme Court Vacates Sentence After State Violates Plea Bargain by Making Recommendation at Sentencing

by Matt Clarke

The Supreme Court of Appeals of West Virginia ruled that a prosecutor’s recommendation that sentences should be served consecutively violated a plea agreement requiring the State to “remain silent on a recommendation at sentencing.” The Court vacated the sentence and remanded the case for resentencing before ...

Tenth Circuit Clarifies Proper Test for Pretrial Hearing on Seized Assets Needed to Retain Counsel

by Matt Clarke

The Tenth Circuit Court of Appeals ruled that the proper test for whether a district court should hold a pretrial hearing on a motion challenging the seizure of assets is whether the defendant has sufficient unseized assets to pay the reasonable costs of retaining his choice of ...

America’s Cities Are Criminalizing Homelessness

by Matt Clarke

Across the United States, cities are adopting ordinances that effectively criminalize homelessness. The behavior banned includes: sitting, lying down, or placing property on a sidewalk; camping or sleeping in public (including in a vehicle); standing on a roadway median; blocking a sidewalk; loitering; panhandling; and sharing food ...

Seventh Circuit Vacates Conditions of Supervised Release Following Child Pornography Conviction

by Matt Clarke

The U.S. Court of Appeals for the Seventh Circuit vacated three of the four conditions of supervised release (“CSR”) challenged by a man who had been convicted of possessing child pornography.

Joseph Canfield pleaded guilty to possessing digital images of child pornography in Illinois federal court ...

Ninth Circuit Grants Habeas for IAC of Resentencing Counsel Who Failed to Challenge Sole Aggravating Factor or Investigate Mitigating Circumstances

by Matt Clarke

The U.S. Court of Appeals for the Ninth Circuit ordered the granting of habeas relief to an Arizona death row prisoner based on ineffective assistance of counsel (“IAC”) at resentencing.

Michael Ray White was manipulated by a woman he was having an affair with into shooting ...

Kansas Supreme Court Holds Travel Plan Questions Unconstitutionally Extended Traffic Stop

by Matt Clarke

The Supreme Court of Kansas held that a police officer unconstitutionally extended the traffic stop he had made for following too closely when he asked questions about the driver’s travel plans for four-and-a-half minutes before requesting warrant information and criminal history checks. This required the suppression of ...

Ninth Circuit Grants Habeas for Appellate Lawyer’s Failure to Raise Denial of Self-Representation Claim

by Matt Clarke

On July 6, 2018, the U.S. Court of Appeals for the Ninth Circuit reversed a federal court’s denial of a California state prisoner’s petition for a writ of habeas corpus after determining that appellate counsel failed to raise a viable claim under Faretta v. California, 422 ...

First Circuit Vacates Supervised Release Condition Effectively Prohibiting Contact with His Minor Children

by Matt Clarke

On June 20, 2018, the U.S. Court of Appeals for the First Circuit held that a condition of supervised release prohibiting contact with minors without pre-approval from a probation officer in a plea-bargained possession of child pornography case was clear error and a miscarriage of justice ...


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Disciplinary Self-Help Litigation Manual


Federal Prison Handbook