by Richard Resch
The U.S. Court of Appeals for the Seventh Circuit held that because petitioner’s Illinois postconviction relief petition had been pending in state court for over 20 years, state postconviction remedies proved “ineffective,” entitling him to seek federal habeas relief under the terms of 28 U.S.C. § 2254(b)(1) without first waiting for further relief in Illinois courts.
In 1999, two separate juries convicted James Evans of murder and soliciting murder. He received sentences of 60 years for the former and 47 years for the latter to run consecutively. The convictions were both affirmed on direct appeal. In 2003, Evans filed a petition for postconviction relief in state court, claiming that he was innocent and that the prosecution engaged in serious misconduct during both prosecutions.
After nearly 20 years, the state courts still have not resolved Evans’ petition for postconviction relief due, in large part, to the conduct of the State. For example, in December 2008, Evans requested copies of audio recordings that he claims were manipulated by the prosecution; the court ordered the State to “provide all copies” of the recordings to Evan. But it failed to comply and would continue to do so …
by Richard Resch
The Supreme Court of the United States held that criminal liability for true threats, which are not protected by the First Amendment, requires proof that the defendant had a subjective understanding of the threatening nature of the statements and further held that a mental state of recklessness is sufficient because it provides enough breathing space for protected speech without sacrificing too many of the benefits of enforcing laws prohibiting true threats.
Billy Counterman sent hundreds of Facebook messages to a local singer and musician, C.W., over a two-year period despite the fact they had never met. C.W. did not respond to any of Counterman’s messages and blocked him numerous times, but he created new Facebook accounts and resumed sending her unwanted messages. The messages ranged from the mundane – “I am going to the store would you like anything?” – to the unsettling – “Fuck off permanently” and “Staying in cyber life is going to kill you.”
The barrage of messages affected C.W.’s daily existence. Believing that Counterman was threatening her life, she had “a lot of trouble sleeping” and suffered from severe anxiety. Consequently, she no longer walked alone, reduced her social …
by Richard Resch
The Supreme Court of the United States (“SCOTUS”) held that the “right-to-control” theory of liability, which imposes liability for depriving the victim of “potentially valuable economic information … necessary to make discretionary economic decisions,” is not a valid basis for liability under the federal wire …
by Richard Resch
The Supreme Court of the United States held that a trial court’s jury instructions on the standard as to whether a private citizen owes a fiduciary duty to the public and a breach thereof may serve as the basis for a conviction for honest-services fraud …
by Richard Resch
The U.S. Court of Appeals for the Fifth Circuit held that police violated a defendant’s Fourth Amendment rights by conducting a warrantless search of his jacket that he tossed over the fence at his mother’s home as police were initiating contact because he did not …
by Richard Resch
The Supreme Court of the United States held that when a prisoner’s request for postconviction DNA testing of evidence in accordance with the process established by the state is denied and the prisoner files a 42 U.S.C. § 1983 procedural due process claim challenging the …
by Richard Resch
The U.S. Court of Appeals for the Seventh Circuit ruled that a suspect in a federal drug investigation who leased a condominium using a false name retained a subjective expectation of privacy in the premises that society recognizes as reasonable, and thus, the landlord could …
by Richard Resch
The Court of Appeal of California, Second Appellate District, held that a geofence warrant used to gather evidence in a homicide investigation that resulted in two murder convictions lacked the requisite particularity and was overbroad in violation of the Fourth Amendment. Nevertheless, the Court affirmed …
by Richard Resch
The U.S. Court of Appeals for the Fifth Circuit joined four of its sister Circuits in holding that U.S. Sentencing Guideline § 2K2.1(b)(4)(B) does not apply in cases where the firearm in question never had a serial number.
A Houston Police Department officer conducted …
by Richard Resch
The U.S. Court of Appeals for the First Circuit vacated Jadnel Flores-Nater’s 30-year prison sentence containing a 20-year upward variance because the District Court failed to provide the required case-specific rationale to justify an upward variance of that magnitude.
On June 8, 2018, Flores-Nater …
