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The Habeas Citebook Ineffective Counsel

Criminal Legal News: June, 2020

Issue PDF
Volume 3, Number 6

In this issue:

  1. Racism and Wrongful Convictions (p 1)
  2. Sixth Circuit Grants Habeas Relief After Michigan Court Violates Confrontation Clause (p 10)
  3. Ninth Circuit: Mental Impairment that Prevented ‘Monitoring’ of Habeas Counsel’s Actions May Require Equitable Tolling (p 12)
  4. Tenth Circuit Vacates District Court’s Order Sealing Plea Supplement, Explaining Local Court Rule Doesn’t Abrogate Common Law Right of Access to Judicial Records (p 13)
  5. Federal Judge Issues Order Reducing 40-Year Stacked § 924(c) Sentence Based on First Step Act Changes to Compassionate Release (p 14)
  6. Latest Forensic Technology, Pattern Analysis, May Be ‘Pseudoscience’ (p 16)
  7. SCOTUS: Jury Verdicts Must Be Unanimous to Convict on Criminal Charges, Overruling Apodaca (p 18)
  8. ATF: What Is a Gun? (p 19)
  9. Michigan Supreme Court Announces that Duress May be Asserted as an Affirmative Defense to Felony Murder, Overruling Gimotty and Etheridge (p 20)
  10. Texas Court of Criminal Appeals: Failure to Include ‘Or Others’ in Jury Instruction for Self-Defense Against Multiple Assailants Deprived Defendant of Defense (p 21)
  11. Virus Vigilantes v. Virus Violators: Shunning, Shaming, or Policing COVID-19 May not Be the Cure (p 22)
  12. SCOTUS: Due Process Doesn’t Require States to Adopt a Specific Test for Determining Insanity (p 24)
  13. Fifth Circuit: Defendant Lacked Culpability in Attempting to Export Ammunition by Merely Purchasing It (p 25)
  14. Second Circuit: Habeas Petition Not Moot Where It Attacked Inactive Original Order That Gave Rise to Current Active Order Restraining Petitioner’s Liberty (p 26)
  15. Iowa Supreme Court Vacates Guilty Plea for Lack of Evidence and Ineffective Assistance of Counsel (p 26)
  16. Federal District Court Finds ‘Confusion’ Over Law in State Court Excused Late Filing of § 2255 Motion (p 28)
  17. Seventh Circuit Reiterates IAC Requires Only ‘Reasonable Probability,’ Not ‘More Likely Than Not,’ of Different Outcome (p 29)
  18. Divide and Conquer: New Algorithm Examines Crime-Scene Bullets Segment by Segment (p 30)
  19. U.S. Supreme Court Justice Files Statement on Court’s Refusal to Hear Habeas Case, Despite Deep Circuit Split (p 31)
  20. SCOTUS: Knowledge that Driver’s License of Vehicle’s Registered Owner Was Revoked Provides Reasonable Suspicion to Initiate Traffic Stop (p 32)
  21. Don’t Allow Government to Abuse Emergency Powers After COVID-19 Threat Subsides (p 33)
  22. Illinois Supreme Court: Failing to Stipulate Felon Status Allowing Jury to Hear About Murder Conviction Constitutes IAC (p 34)
  23. Notorious Louisiana Prosecutor Fired for Misconduct Technicality (p 34)
  24. 10th Circuit: Evidence Insufficient to Support Conviction for Attempting to Kill Witness (p 35)
  25. $369,000 Settlement in Police Raid of Journalist’s Home and Office (p 36)
  26. Delaware Supreme Court Clarifies Meaning of ‘Mixture’ as Used in State’s Controlled Substances Act (p 36)
  27. Colorado Supreme Court: Defendant Has No Duty to Bring Himself to Trial (p 37)
  28. Fifth Circuit Finds IAC for Failure to Object to Court’s Jury Instructions that Constructively Amended Indictment by Lowering Government’s Burden of Proof (p 38)
  29. Pennsylvania Supreme Court: Cronic’s Presumption of Prejudice Triggered by Counsel Failing to Secure Interpreter for First Day of Trial (p 39)
  30. Ohio Supreme Court Announces New Standard for ‘Actual Racial Bias’ for Jurors and Holds Counsel Was Ineffective for Failing to Strike Racially Biased Juror (p 40)
  31. U.S. Supreme Court Rejects Fifth Circuit’s Rule Barring Plain-Error Review of Unpreserved Factual Arguments (p 40)
  32. FBI’s Long History of Squelching Political Dissent Under the Guise of National Security (p 41)
  33. Utah Supreme Court: Dismissal of Second Post-Conviction Petition Improper Where First Petition Voluntarily Withdrawn (p 42)
  34. No Consequences for Prosecutors’ Bad Behavior (p 42)
  35. Nevada Supreme Court Rules Bail Determination Requires Due Process and Severs Unconstitutional Language from Bail Statute (p 43)
  36. Federal Court Overturns Conviction for Person Linked to Former Subway Spokesperson’s Child Porn Case (p 44)
  37. Study Sheds Light on ‘Recidivism’ and Probation and Parole Violations (p 45)
  38. Utah Residents Can Wind Up in Jail When They Miss Loan Payments (p 46)
  39. California Court of Appeal: Unoccupied Running Vehicle Doesn’t Justify Warrantless Search of Residence (p 46)
  40. Interpreting Emojis as Court Evidence (p 47)
  41. LAPD Officers Accused of Entering Names of Innocent People Into Gang Database (p 47)
  42. ‘No-Knock Raids’ an Increasing Danger to Public Safety (p 48)
  43. Massachusetts Supreme Judicial Court Clarifies Standards for Exit Order and Patfrisk (p 48)
  44. A Mass Purge of Misconduct Records by Phoenix, Arizona Police (p 49)
  45. Cops in Missouri Exploit Loophole to Seize $2.6 Million from Innocent Citizens (p 49)
  46. How Old Is That Fingerprint? (p 50)
  47. News in Brief (p 50)

Racism and Wrongful Convictions

The meaning of “race” is not clearly defined. Further, perhaps due to ...

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 ...

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 ...

Tenth Circuit Vacates District Court’s Order Sealing Plea Supplement, Explaining Local Court Rule Doesn’t Abrogate Common Law Right of Access to Judicial Records

Bacon pleaded guilty to multiple counts, including bank robbery. At issue in this appeal was ...

Federal Judge Issues Order Reducing 40-Year Stacked § 924(c) Sentence Based on First Step Act Changes to Compassionate Release

On a cold February 2003 night, my life was shattered. That is when I was arrested and charged with a crack cocaine conspiracy along with two § 924(c) counts. My mandatory minimum sentence could be no lower than 40 years. And after a three-week trial, that is ...

Latest Forensic Technology, Pattern Analysis, May Be ‘Pseudoscience’

Television crime dramas and docudramas have, for decades, lulled the public into accepting the infallibility of forensic crime science. However, a groundbreaking study by the National Academy of Sciences (“NAS”) — made up of legal, technical, and policy experts authorized by Congress in 2005—was tasked with ...

SCOTUS: Jury Verdicts Must Be Unanimous to Convict on Criminal Charges, Overruling Apodaca

by Douglas Ankney

The Supreme Court of the United States (“SCOTUS”) held that in jury trials of criminal cases the verdict must be unanimous to convict the defendant, overruling Apodaca v. Oregon, 406 U.S. 404 (1972).

Evangelisto Ramos was convicted of a serious crime in Louisiana by a jury ...

ATF: What Is a Gun?

Making a decision about what is or is not a “firearm” under the law would seem to be a fairly straightforward process, but recent controversy about the regulations used by the Federal Bureau of Alcohol, Tobacco, Firearms, and Explosive (“ATF”) has shown that the definition of a ...

Michigan Supreme Court Announces that Duress May be Asserted as an Affirmative Defense to Felony Murder, Overruling Gimotty and Etheridge

In a case of first impression for the Supreme Court of Michigan, the Court announced that the affirmative defense of duress may be asserted in a prosecution for felony murder if such defense is available for the underlying felony, overruling People v. Gimotty, 549 N.W.2d 39 (Mich. ...

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 ...

Virus Vigilantes v. Virus Violators: Shunning, Shaming, or Policing COVID-19 May not Be the Cure

Crises have a way of bringing out the best as well as the worst in all of us. When driven by fear of the unknown, and in this case the unknown is a microscopic viral assailant known respectfully as COVID-19, a society’s response can vary dramatically. ...

SCOTUS: Due Process Doesn’t Require States to Adopt a Specific Test for Determining Insanity

The Supreme Court of the United States (“SCOTUS”) determined that “no insanity rule in this country’s heritage was ever so settled as to tie a State’s hands centuries later” and held that Kansas did not violate due process by failing to “adopt an insanity test turning on ...

Fifth Circuit: Defendant Lacked Culpability in Attempting to Export Ammunition by Merely Purchasing It

The U.S. Court of Appeals for the Fifth Circuit held that a district court clearly erred in assigning a defendant a three-level enhancement for attempting to export ammunition when he had purchased the ammunition but was yet to take further steps toward its export.

Rodolfo Rodriguez-Leos was ...

Second Circuit: Habeas Petition Not Moot Where It Attacked Inactive Original Order That Gave Rise to Current Active Order Restraining Petitioner’s Liberty

The U.S. Court of Appeals for the Second Circuit held that a habeas petition is not moot where it attacks an earlier order that is inactive but gave rise to a current active order restricting the petitioner’s liberty.

In December 2007, Steven Janakievski attacked a coworker with ...

Iowa Supreme Court Vacates Guilty Plea for Lack of Evidence and Ineffective Assistance of Counsel

The Supreme Court of Iowa ruled there was no factual basis to support a defendant’s guilty plea to possessing a tool with the intent to use in the unlawful removal of a theft detection device. The Court further ruled that defense counsel was ineffective for allowing ...

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 ...

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 ...

Divide and Conquer: New Algorithm Examines Crime-Scene Bullets Segment by Segment

On the morning of March 22, 1915, residents of the small town of West Shelby, New York, awoke to a horrific scene. A woman clad only in a bloodied nightgown lay shot to death in the snow ...

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 ...

SCOTUS: Knowledge that Driver’s License of Vehicle’s Registered Owner Was Revoked Provides Reasonable Suspicion to Initiate Traffic Stop

The Supreme Court of the United States (“SCOTUS”) whittled away at Fourth Amendment protections by holding that when a police officer has knowledge that the driver’s license of a vehicle’s registered owner has been revoked this gives rise to an inference that the driver is likely the ...

Don’t Allow Government to Abuse Emergency Powers After COVID-19 Threat Subsides

During this COVID-19 crisis, state and local authorities are ordering people to shelter in place, banning large gatherings, and closing businesses. These restrictions are implemented under traditional police powers that allow designated officials to take emergency actions to protect the public’s health, safety, and welfare during a ...

Illinois Supreme Court: Failing to Stipulate Felon Status Allowing Jury to Hear About Murder Conviction Constitutes IAC

The Supreme Court of the State of Illinois reversed a defendant’s conviction because his attorney failed to stipulate his felon status at trial, and the jury was likely prejudiced by knowing his previous conviction was for murder.

Leslie Moore was pulled over in Joliet, Illinois, because he ...

Notorious Louisiana Prosecutor Fired for Misconduct Technicality

Jason Brown was a ‘lock ‘em up tight and throw away the key’ type. One of the most disliked prosecutors in Caddo Parish, Louisiana, history, he was a hard-charging and inflexibly tough prosecutor who pushed for maximum punishments. Several of them were recounted by investigative journalist Jon ...

10th Circuit: Evidence Insufficient to Support Conviction for Attempting to Kill Witness

The U.S. Court of Appeals for the Tenth Circuit ruled that the evidence was insufficient to support John Terry Chatman, Jr.’s conviction of obstruction of justice by attempting to kill a witness.

Chatman was walking around the corner of the Trade Winds Hotel when two officers from ...

$369,000 Settlement in Police Raid of Journalist’s Home and Office

It was a quieting day for First Amendment freedom when San Francisco cops and the FBI raided the home and newsroom of freelance journalist Bryan Carmody May 10, 2019, in search of the source of a confidential police report into the Feb. 22, 2019, death of elected San Francisco Public ...

Delaware Supreme Court Clarifies Meaning of ‘Mixture’ as Used in State’s Controlled Substances Act

The Supreme Court of Delaware clarified the meaning of “mixture” as the term is used in Delaware’s Uniform Controlled Substances Act (“Act”).

Police recovered from the person of Darren Wiggins a vial containing an amber liquid and brown chunks. Wiggins was ultimately charged with several offenses, including ...

Colorado Supreme Court: Defendant Has No Duty to Bring Himself to Trial

The Supreme Court of Colorado ruled that Edward Kevin DeGreat had no duty to bring himself to trial and ordered his charges dismissed with prejudice for violation of his right to a speedy trial.

In October 2018, the Supreme Court of Colorado affirmed the court of appeals’ ...

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 ...

Pennsylvania Supreme Court: Cronic’s Presumption of Prejudice Triggered by Counsel Failing to Secure Interpreter for First Day of Trial

by Douglas Ankney

The Supreme Court of Pennsylvania ruled that the defendant was denied the effective assistance of counsel where a Spanish-language interpreter was not secured for the first day of trial and that counsel’s failure to do so triggered the application of the presumption of prejudice articulated by the ...

Ohio Supreme Court Announces New Standard for ‘Actual Racial Bias’ for Jurors and Holds Counsel Was Ineffective for Failing to Strike Racially Biased Juror

The Supreme Court of Ohio held that Glen E. Bates was deprived of his right to effective assistance of counsel when his attorney failed to inquire into a juror’s expressed racial bias or strike the juror.

Bates was convicted by a jury of aggravated murder and other ...

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 ...

FBI’s Long History of Squelching Political Dissent Under the Guise of National Security

by Jayson Hawkins

For nearly a century, one of the most important duties of the FBI has been to act as the primary counterterrorism force on American soil. Unfortunately, throughout that time, the FBI has shown a troubling tendency to surveil dissidents and view challenges to the status quo as ...

Utah Supreme Court: Dismissal of Second Post-Conviction Petition Improper Where First Petition Voluntarily Withdrawn

The Supreme Court of Utah held that there was no previous request for post-conviction relief to support dismissal of a second petition under Utah Code § 78B-9-106(1)(d) of the Post-Conviction Remedies Act (“PCRA”) where the first petition was voluntarily dismissed under Utah Rules of Civil Procedure, Rule ...

No Consequences for Prosecutors’ Bad Behavior

It is not unheard of that the quest for justice occasionally ends in a mistrial.

That the defendant would then be retried six times for the same crime, however, is less of a misfire than it is a miscarriage of justice—especially when four of the verdicts were ...

Nevada Supreme Court Rules Bail Determination Requires Due Process and Severs Unconstitutional Language from Bail Statute

In a case of first impression, the Supreme Court of Nevada ruled that bail determinations for pretrial detainees requires due process, announced the procedures to be followed, and severed unconstitutional language from NRS 178.4851(1).

The State obtained felony indictments against Aaron Frye and Jose Valdez-Jimenez, and the ...

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 ...

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 ...

Utah Residents Can Wind Up in Jail When They Miss Loan Payments

Utah residents suffer from the highest payday and auto loan interest rates in the United States. It is one of only six states that does not have an interest-rate cap on such loans. Moreover, despite Congress’ ban on debtors’ prison, more and more residents are finding themselves ...

California Court of Appeal: Unoccupied Running Vehicle Doesn’t Justify Warrantless Search of Residence

Division One of the Fourth Appellate District of the California Court of Appeal ruled that an unoccupied vehicle left running in a driveway satisfied neither the “emergency aid exception” nor the “exigent circumstances exception” to justify the warrantless search of a residence. The Court further ruled that ...

Interpreting Emojis as Court Evidence

Emojis on cellphones and other digital devices have advanced their popularity as a way to express emotion. It should be no surprise then that their ubiquity has brought them into court cases. However, the accepted meanings of the emojis has not caught up to their ubiquity. Enter ...

LAPD Officers Accused of Entering Names of Innocent People Into Gang Database

Officers from an elite division within the Los Angeles Police Department (“LAPD”) are under investigation regarding allegations that they falsified reports and listed some innocent people as gang members.

LAPD Police Chief Michel Moore announced in January that he was seeking to fire one officer for his ...

‘No-Knock Raids’ an Increasing Danger to Public Safety

Julian Betton was in his home minding his own business when the police crashed through his front door. The cops entered without knocking or identifying themselves as law enforcement, and Betton reacted as any citizen would to masked individuals shouting threats and brandishing weapons: He confronted the ...

Massachusetts Supreme Judicial Court Clarifies Standards for Exit Order and Patfrisk

The Supreme Judicial Court of the Commonwealth of Massachusetts affirmed the suppression of evidence resulting from a patfrisk that was conducted after the defendant had exited his vehicle unprompted by police, and twice looked back into it during his encounter with officers.

Manuel Torres-Pagan (“Torres”) was pulled ...

A Mass Purge of Misconduct Records by Phoenix, Arizona Police

Few people realize that Phoenix police regularly “purge” the disciplinary records of police, an Arizona Republic investigation uncovered. And it’s been going on for two decades.

The Republic uncovered “more than 600 acts of wrongdoing” committed by 525 cops (out of nearly 3,000 sworn employees) in just ...

Cops in Missouri Exploit Loophole to Seize $2.6 Million from Innocent Citizens

According to St. Louis Public Radio, police in Missouri abused a civil asset forfeiture scheme to seize at least $2.6 million from motorists during traffic stops in 2018.

St. Charles County cops stopped people for minor traffic violations and directed the drivers to a private lot owned ...

How Old Is That Fingerprint?

While forensic scientists have, for more than a hundred years, been able to opine that a fingerprint came from a particular person, the limitations of science did not permit them to state when the fingerprint was left by that person.

But that limitation may have been recently ...

News in Brief

Arizona: Tucson has a new ordinance topunish those who fail to stay outside designated crime scene perimeters, the Tucson Star reports. The law aims to halt “cop haters” with cameras, but the potential fallout is a stifling of First Amendment rights. While people should not provoke police, critics worry ...

 

 

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