There has been more good stuff recently, and I'll try to post more next week, but for today, I put this note up on the Sixth Cir. Blog, as it was my week to post there.
Ajan v. United States, No. 09--6366 (6th Cir. Oct 3, 2013) (for publication).
Panel of Judges Keith, McKeague, and Watson (S.D. Ohio).
Drugs, aiding and abetting kidnapping, couple 924(c)s. . . . 646-month sentence. 2255 granted in part and denied in part by dist ct. Dist ct entered amended judgment and new sentence without a resentencing hrg. Petitioner did not seek a certificate of appealability (COA). Petitioner appealed, arguing he was entitled to a resentencing hrg.
Conclusions:
* No COA needed b/c petitioner appealing previously unreviewed issues.
* Ct of Appeals vacated amended judgment---dist ct to exercise its discretion in selecting a 2255 remedy.
Issues and Points:
* Whether a COA needed to appeal relief granted after a successful 2255 was an open questions in the circuit.
* Once a judgment is vacated under 2255, a district court must grant one of four remedies: 1) discharge the prisoner, 2) resentence the prisoner, 3) grant a new trial, or 4) correct the sentence.
* Here, successful 2255 led to a new judgment---the amended judgment---that was not in place at time 2255 filed.
* Petitioner was essentially appealing a new sentence and did not need a COA. Defendants entitled to direct review of sentences for non-constitutional errors.
* In terms of the merits, ambiguity existed as to what the district court perceived as its statutory authority to grant 2255 relief. So sentence vacated and case remanded. (The parties had agreed that one 924(c) was not an offense under the charged statute; the dist ct vacated the conviction for that count and sentenced the petitioner to 346 months. The dist ct essentially excised the unlawful sentence, but reinstated the others.) Issue was: did the dist ct fully appreciate its discretion?
* In terms of 924(c)s more broadly, Court of Appeals is clear: coexistence of a mandatory consecutive sentence does NOT remove a dist ct's discretion to resentence. Dist cts have the authority to resentence after reversal of a 924(c).
This opinion is pretty interesting in terms of 2255 and resentencings. The guidelines were mandatory when the petitioner was sentenced; now he gets the benefit of advisory GLs. On remand, the dist ct can consider that the count with the longest sentence has been vacated, so the dist ct has "a far less egregious set of convictions" to consider on remand.
Showing posts with label Appellate Procedure. Show all posts
Showing posts with label Appellate Procedure. Show all posts
Friday, October 4, 2013
Thursday, February 28, 2013
6th Cir Policy on e-Gadgets
The 6th Cir. has a new policy on electronic gear. Released last month:
http://www.ca6.uscourts.gov/internet/court_calendars/documents/Electronic_Device.pdf
http://www.ca6.uscourts.gov/internet/court_calendars/documents/Electronic_Device.pdf
Saturday, September 8, 2012
6th Cir Changes
Sorry, trial has made time scarce, so no blogging.
But FYI: 6th Cir. amended the 6th Cir. Rules on Aug. 16, 2012. New ones are on-line. Check your citations! There are changes!
http://www.ca6.uscourts.gov/internet/rules_and_procedures/pdf/rules2004.pdf
Also, the checklist for briefs in not on-line. It's under review, so I anticipate some changes there too.
But FYI: 6th Cir. amended the 6th Cir. Rules on Aug. 16, 2012. New ones are on-line. Check your citations! There are changes!
http://www.ca6.uscourts.gov/internet/rules_and_procedures/pdf/rules2004.pdf
Also, the checklist for briefs in not on-line. It's under review, so I anticipate some changes there too.
Friday, May 11, 2012
Catching Up! Jurisdictional Issues. . . .
Whew! Sorry for the absence. Lots going on + Sixth Cir Conf in Lexington, Kentucky!
But I'll do some catching up today.
United States v. Detcher, No. 10-3776 (6th Cir. May 8, 2012) (not for publication).
Panel of Judges Kethledge, Stranch, and Gwin (N.D. Ohio).
CP and sex-abuse-of-a-child case. Defendant argued that the Ohio dist ct lacked subject-matter jurisdiction over the sex-abuse offense b/c the offense occurred on a U.S. Army base in Germany. COA remanded case to dist ct.
First, "the fact that [the defendant] did not make this jurisdictional argument below does not release [the COA] from [its] duty to determine the issue."
Second, there's a circuit split over whether "the special maritime and territorial jurisdiction of the United States" includes only federal lands within the territory of the United States. Does such jurisdiction extend extraterritorially? "Special maritime and territorial jurisdiction" is defined in 18 USC 7.
Third, the defendant argued that even if the statute reaches areas outside the U.S. it does not reach the base in Germany. He based his argument on the fact that Germany has not ceded any jurisdiction to the United States civilian courts to try crimes there. The defendant looked to the status-of-forces agreement between the U.S. and Germany. He argued only trial in military court might be permitted.
The COA remanded to the dist ct to consider the issue.
But I'll do some catching up today.
United States v. Detcher, No. 10-3776 (6th Cir. May 8, 2012) (not for publication).
Panel of Judges Kethledge, Stranch, and Gwin (N.D. Ohio).
CP and sex-abuse-of-a-child case. Defendant argued that the Ohio dist ct lacked subject-matter jurisdiction over the sex-abuse offense b/c the offense occurred on a U.S. Army base in Germany. COA remanded case to dist ct.
First, "the fact that [the defendant] did not make this jurisdictional argument below does not release [the COA] from [its] duty to determine the issue."
Second, there's a circuit split over whether "the special maritime and territorial jurisdiction of the United States" includes only federal lands within the territory of the United States. Does such jurisdiction extend extraterritorially? "Special maritime and territorial jurisdiction" is defined in 18 USC 7.
Third, the defendant argued that even if the statute reaches areas outside the U.S. it does not reach the base in Germany. He based his argument on the fact that Germany has not ceded any jurisdiction to the United States civilian courts to try crimes there. The defendant looked to the status-of-forces agreement between the U.S. and Germany. He argued only trial in military court might be permitted.
The COA remanded to the dist ct to consider the issue.
Monday, February 27, 2012
Two CP Decisions. . . .
United States v. Ferguson, No. 10-3070 (6th Cir. Feb. 27, 2012) (published).
Panel of Judges Kennedy, Gibbons, and Kethledge.
CP case. D appealed the special conditions of his supervised release. Also appealed denial of suppression motion, and claimed ineffective assistance of counsel (counsel's failure to preserve suppression issue for appeal).
D had been residing in a residence that was in disrepair (he did not have a property interest in it and only stayed there part-time). Police told of possible CP (contacted by another police department). Police went to the residence and arrested the D for trespassing. Searched home (to ensure no other trespassers present). Seized D's property; said home scheduled for demolition and evidence could be destroyed. Detective got a warrant and examined the electronic media. Found CP.
The district court denied D's motion to suppress: D did not own the home, had no lawful possession of it, had been convicted of failing to keep it sanitary, and had been ordered to stay away from it. Home was scheduled for demolition.
D pleaded guilty. Appellate waiver in plea agreement. Agreement detailed several conditions the government would seek for supervised release.
District court imposed a sentence of 30 months and 10 years of supervised release. Among the conditions of supervised release were: 1) ban on contact with minors; 2) ban on contact with people with sexual interests in minors; 3) no jobs/residence/recreation and such involving minors; 4) ban on loitering within 100' of a school/playground frequented by minors; and 5) no on-line access w/o probation's approval.
Ineffective-assistance-of-counsel claim, based on failing to preserve right to appeal suppression issue, should wait for a 2255. Record not developed on direct appeal. Unconditional plea means no review of the denial of the motion to suppress here. As to the conditions of supervised release, the D waived his right to appeal them. Even a lack of notice of one of the conditions did not jump the waiver hurdle. A general reservation of the right to appeal a punishment in excess of the statutory max does not preserve the right to challenge SR conditions.
Next there is United States v. Robinson, No. 09-1959 (6th Cir. Feb. 27, 2012) (published).
Panel of Judges Cole, Rogers, and Sargus (S.D. Ohio).
CP case. GLs of 78 to 97 months. District court gave the D one day in custody and 5 years of SR. Sentence vacated as substantively unreasonable.
Psych report indicated that the D was a low risk for recidivism (and other positive factors). D was cooperative, lacked criminal history, went to counseling, and had a painful back condition.
The government appealed the one-day sentence. The court of appeals looked at Gall and cited a portion about ensuring that justifications for a variance are sufficient to support the degree of the variance. The appellate court found that courts struggle with CP cases and cited a Sentencing Commission statistic that variances occur in 60% of the cases.
The sentence was procedurally reasonable, but failed substantively. Sentence based excessively on the issue of recidivism (low risk for hands-on offenses); this case was about CP---not child molestation. D's employment history, age, and debilitating back condition were "discouraged" factors under the GLs. Even post-Booker, a sentencing court "should take into account 'the 'discouraged' status of these factors.'" The other 3553(a) factors received too little attention from the district court.
The court of appeals cited Bistline, that CP case we included in a post on January 14, 2012. The COA recognized that the CP GLs are controversial "and are currently under review by the Sentencing Commission." Court acknowledged that "In the computer age, we have some doubt that the number of pictures alone captures the gravity of the crime of possession of child pornography." But this D collected his images over an extended period of time and paid to do so.
The court of appeals distinguished United States v. Stall, 581 F.3d 276 (6th Cir. 2009), and United States v. Prisel, 316 F. App`x 377 (6th Cir. 2008), both of which involved one-day sentences and involved plain-error review.
"[E]xtraordinary circumstances may justify extraordinary variances or departures." This finding seems to follow up on some of the problematic issues in Bistline.
Panel of Judges Kennedy, Gibbons, and Kethledge.
CP case. D appealed the special conditions of his supervised release. Also appealed denial of suppression motion, and claimed ineffective assistance of counsel (counsel's failure to preserve suppression issue for appeal).
D had been residing in a residence that was in disrepair (he did not have a property interest in it and only stayed there part-time). Police told of possible CP (contacted by another police department). Police went to the residence and arrested the D for trespassing. Searched home (to ensure no other trespassers present). Seized D's property; said home scheduled for demolition and evidence could be destroyed. Detective got a warrant and examined the electronic media. Found CP.
The district court denied D's motion to suppress: D did not own the home, had no lawful possession of it, had been convicted of failing to keep it sanitary, and had been ordered to stay away from it. Home was scheduled for demolition.
D pleaded guilty. Appellate waiver in plea agreement. Agreement detailed several conditions the government would seek for supervised release.
District court imposed a sentence of 30 months and 10 years of supervised release. Among the conditions of supervised release were: 1) ban on contact with minors; 2) ban on contact with people with sexual interests in minors; 3) no jobs/residence/recreation and such involving minors; 4) ban on loitering within 100' of a school/playground frequented by minors; and 5) no on-line access w/o probation's approval.
Ineffective-assistance-of-counsel claim, based on failing to preserve right to appeal suppression issue, should wait for a 2255. Record not developed on direct appeal. Unconditional plea means no review of the denial of the motion to suppress here. As to the conditions of supervised release, the D waived his right to appeal them. Even a lack of notice of one of the conditions did not jump the waiver hurdle. A general reservation of the right to appeal a punishment in excess of the statutory max does not preserve the right to challenge SR conditions.
*****
Next there is United States v. Robinson, No. 09-1959 (6th Cir. Feb. 27, 2012) (published).
Panel of Judges Cole, Rogers, and Sargus (S.D. Ohio).
CP case. GLs of 78 to 97 months. District court gave the D one day in custody and 5 years of SR. Sentence vacated as substantively unreasonable.
Psych report indicated that the D was a low risk for recidivism (and other positive factors). D was cooperative, lacked criminal history, went to counseling, and had a painful back condition.
The government appealed the one-day sentence. The court of appeals looked at Gall and cited a portion about ensuring that justifications for a variance are sufficient to support the degree of the variance. The appellate court found that courts struggle with CP cases and cited a Sentencing Commission statistic that variances occur in 60% of the cases.
The sentence was procedurally reasonable, but failed substantively. Sentence based excessively on the issue of recidivism (low risk for hands-on offenses); this case was about CP---not child molestation. D's employment history, age, and debilitating back condition were "discouraged" factors under the GLs. Even post-Booker, a sentencing court "should take into account 'the 'discouraged' status of these factors.'" The other 3553(a) factors received too little attention from the district court.
The court of appeals cited Bistline, that CP case we included in a post on January 14, 2012. The COA recognized that the CP GLs are controversial "and are currently under review by the Sentencing Commission." Court acknowledged that "In the computer age, we have some doubt that the number of pictures alone captures the gravity of the crime of possession of child pornography." But this D collected his images over an extended period of time and paid to do so.
The court of appeals distinguished United States v. Stall, 581 F.3d 276 (6th Cir. 2009), and United States v. Prisel, 316 F. App`x 377 (6th Cir. 2008), both of which involved one-day sentences and involved plain-error review.
"[E]xtraordinary circumstances may justify extraordinary variances or departures." This finding seems to follow up on some of the problematic issues in Bistline.
Wednesday, February 22, 2012
Good Reminder re Notices of Appeal
Sorry for the long break in posts. Trial. . . .
Today, the Circuit gives us a good reminder to stay on top of those notices of appeal (NOA). Jackson v. Chandler, No. 10-6060 (6th Cir. Feb. 21, 2012) (unpublished). (It's still listed on "today's opinions.")
Judges Merritt, Cook, and Cox (E.D. Mich.). Per curiam.
Habeas action from state court. Petitioner filed his 2254 in 2008, challenging his 2002 murder conviction. The district court dismissed the petition as untimely. Also found that counsel's error in calculating the timeliness of the petition did not call for equitable tolling. The district court entered its judgment on March 26, 2010. Deadline to file notice of appeal was April 26, 2010. Not filed till April 29, 2010. Court of appeals dismissed as untimely. While the appeal was pending, the petitioner moved the district court for an extension of time in which to file the appeal.
Counsel claimed she forgot to tell her assistant to overnight the NOA. So it allegedly got to the court a day late. In reality, however, the NOA was three days late. Federal Rule of Appellate Procedure 26(c) does not give the three extra days for NOAs. Court cites Ultimate Appliance CC v. Kirby Co., 601 F.3d 414, 416 (6th Cir. 2010).
The district court denied the motion, finding that counsel's oversight did not constitute excusable neglect. The petitioner appealed.
Under 28 U.S.C. 2107(c), district courts have only limited authority to extend the time limits for filing an NOA. A district court may extend for excusable neglect or good cause if the motion is filed within thirty days of the expiration of the prescribed time. Federal Rule of Appellate Procedure 4(a)(5) governs. Findings of excusable neglect are "extraordinary." And clients are held accountable for their attorneys' actions/omissions. Attorney inadvertence usually does not meet the standard for excusable neglect. Being busy is not excusable neglect.
The court of appeals affirmed.
Remember, Sixth Circuit Rule 101(a) says trial counsel in criminal cases must continue to represent a client on appeal until the Circuit explicitly relieves the attorney. We're on the case till we're off! And the Court reminds us here that there's no excuse for filing NOAs late!
Today, the Circuit gives us a good reminder to stay on top of those notices of appeal (NOA). Jackson v. Chandler, No. 10-6060 (6th Cir. Feb. 21, 2012) (unpublished). (It's still listed on "today's opinions.")
Judges Merritt, Cook, and Cox (E.D. Mich.). Per curiam.
Habeas action from state court. Petitioner filed his 2254 in 2008, challenging his 2002 murder conviction. The district court dismissed the petition as untimely. Also found that counsel's error in calculating the timeliness of the petition did not call for equitable tolling. The district court entered its judgment on March 26, 2010. Deadline to file notice of appeal was April 26, 2010. Not filed till April 29, 2010. Court of appeals dismissed as untimely. While the appeal was pending, the petitioner moved the district court for an extension of time in which to file the appeal.
Counsel claimed she forgot to tell her assistant to overnight the NOA. So it allegedly got to the court a day late. In reality, however, the NOA was three days late. Federal Rule of Appellate Procedure 26(c) does not give the three extra days for NOAs. Court cites Ultimate Appliance CC v. Kirby Co., 601 F.3d 414, 416 (6th Cir. 2010).
The district court denied the motion, finding that counsel's oversight did not constitute excusable neglect. The petitioner appealed.
Under 28 U.S.C. 2107(c), district courts have only limited authority to extend the time limits for filing an NOA. A district court may extend for excusable neglect or good cause if the motion is filed within thirty days of the expiration of the prescribed time. Federal Rule of Appellate Procedure 4(a)(5) governs. Findings of excusable neglect are "extraordinary." And clients are held accountable for their attorneys' actions/omissions. Attorney inadvertence usually does not meet the standard for excusable neglect. Being busy is not excusable neglect.
The court of appeals affirmed.
Remember, Sixth Circuit Rule 101(a) says trial counsel in criminal cases must continue to represent a client on appeal until the Circuit explicitly relieves the attorney. We're on the case till we're off! And the Court reminds us here that there's no excuse for filing NOAs late!
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