Cert Granted re Double Jeopardy

Double rainbow, double jeopardy. . . .

No 6th Cir opinions today. But the S Ct granted cert in Blueford v. Arkansas, No. 10-1320. The Ct's going to consider whether, if a jury is deadlocked on a lesser-included offense, double jeopardy bars reprosecution for a greater offense after a jury has announced that it has voted against guilt on that offense.

Stay tuned!

Habeas

Sorry for the delay in posting. It's been hectic. (The picture, like this case, demonstrates long delays and congestion.)

Published habeas decision today: United States v. Van Hook, No. 03–4207 (6^th Cir. Oct. 4, 2011). Panel of Judges Merritt, Martin, and Moore.

Procedural History:

Long procedural history (pre-AEDPA case). Petitioner filed for federal habeas relief in 1995. Ohio courts had upheld petitioner’s death sentence. Ohio courts denied post-conviction relief. Initially, the federal district court denied the petition and the appellate panel reversed, finding that the petitioner’s confession was unconstitutionally obtained. The Sixth Circuit, sitting en banc, vacated that ruling. On remand, the panel again granted habeas relief, finding that trial counsel had been ineffective. Again, the Sixth Circuit sitting en banc vacated the decision. The panel found ineffective assistance on the next remand, but narrowed the scope of its holding. The Supreme Court granted cert and reversed. The case came back to the panel, and this decision is the next in the series.

Petitioner made three claims. He asserted a Brady claim that the the trial court and prosecution wrongfully withheld two pieces of exculpatory evidence from him at trial. He argued that his trial counsel was constitutionally ineffective because counsel failed to request an independent mental-health expert and requested a presentence report for the penalty phase. And he argued that his appellate counsel for his direct appeal was constitutionally ineffective for failing to raise two grounds for relief.

Brady:

Panel found that the State of Ohio had affirmatively waived the exhaustion of state remedies on the Brady issue. But the Brady evidence would not have added anything of note to the proof. If the three trial judges had not been persuaded by expert testimony to mitigate the punishment, the court found it was highly implausible that the two pieces of Brady evidence (which similarly suggested that the petitioner may have killed the victim because of a "homophobic panic") would have altered the judges’ conclusion. The evidence was weaker and less persuasive than the actual testimony and shined no new light on the issues.

The panel found that there was overwhelming expert testimony at the trial that the petitioner neither met the Ohio standard for insanity nor suffered from a mental disease. No expert testified that the petitioner met the standard for insanity, nor did any expert testify that the murder was the result of a mental disease. Neither of the two Brady documents stated that the petitioner met the standard for insanity or suffered from a mental disease or defect. So this evidence did not undermine confidence that the Ohio courts would have reached the same determinations regarding the petitioner’s mental condition.

Overwhelming evidence at trial showed that the petitioner satisfied the statutory aggravating factor of aggravated robbery. Even if the petitioner was motivated partially, or even entirely, at the precise time of the murder by a "homophobic panic," such a factor would not change the fact that the petitioner also stole some of the victim’s personal property by the use of serious physical harm, and thus committed robbery. The Brady evidence does not undermine confidence in the trial court’s determination regarding this aggravating factor. The court denied the petitioner’s Brady claim on the merits.

IAC for Trial Counsel:

The petitioner argued that his trial counsel was constitutionally ineffective because trial counsel failed to request an independent mental-health expert and requested preparation of a presentence report for the trial court during the penalty phase. The panel found that the Sixth Circuit, sitting en banc, had already rejected these arguments.

IAC for Appellate Counsel:

Petitioner argued his appellate counsel was constitutionally ineffective for failing to raise, among the assignments of error presented on direct appeal to the Ohio Supreme Court, two specific grounds for relief: 1) The trial court should not have admitted into evidence the victim-impact statements in which the victim’s mother and an arresting police officer urged the imposition of the death penalty; and 2) the prosecution committed misconduct by referring to the petitioner’s criminal history or capacity for future dangerousness during the penalty phase.

The petitioner, however, failed to follow the Ohio state procedural rules for timely filing claims of ineffective assistance of appellate counsel. And the petitioner’s delay was not one of days, but rather of years, so it did not matter whether the rule in effect at the time presumed timeliness if within ten days or ninety days. What mattered, under either rule, was whether the petitioner showed good cause for the six-year delay. The state appellate court reasonably found that he did not make the necessary showing.

The court found that the Ohio procedural rules constituted an adequate and independent state ground to foreclose review of the federal claim.

The panel found that the district court properly concluded that the petitioner’s claim of ineffective assistance of appellate counsel was procedurally defaulted. The petitioner presented no argument that his default should have been excused due to cause and prejudice. The panel held that the petitioner’s procedural default barred habeas relief on the claim.

The panel affirmed the judgment of the district court denying the writ of habeas corpus.

Federal Defender Entry in ArtPrize!!!

Are you ArtPrizing this weekend? Don't miss "Whodunit," a thought-provoking piece that questions bias and prejudice. Created and entered by the Office of the Federal Public Defender for the Western District of Michigan, it's in the GRCC Spectrum Theater, on Fountain b/t Barclay and Ransom. (Just down Fountain from the GR Public Library.)

Vote for 50631!

www.artprize.org.

A Little Mich Habeas Action to Start the Week

Crump v. Lafler, No. 09-1073 (6th Cir. September 20, 2011) (to be published). Panel of Judges Cole, Gibbons, and Cleland (E.D. Mich.). Judge Cole dissented.

Petitioner argued that Mich law governing parole created a liberty interest under the Fourteenth Amendment enforceable under 28 U.S.C. 2254. Court found that, despite Mich classifying a parole-eligible inmate as having a high probability of release, actual release determinations are uncertain and the parole board has broad discretion. There is no enforceable claim of entitlement to release. Ct affirmed dismissal of the petition.

Petitioner convicted of CSC 3rd and sentenced to 3 to 22.5 years. Also picked up a cocaine charge while on bond for the CSC. Got 7 to 20 (consecutive to the CSC) for the cocaine. Petitioner became eligible for parole in '08. He was marked as having a high probability of parole. But after the parole-board interview, the board denied parole for 18 months.

Petitioner argued that the board relied on a seven-year-old psych report that could not adequately reflect his risk of recidivism in '08. He raised other arguments regarding the board's reasons for denying parole. Petitioner filed a "motion to show cause" in federal court (W.D. Mich.), which the court interpreted as a 2254. Petitioner argued that board's decision was not supported by evidence and constituted a deprivation of liberty w/o due process. The magistrate judge recommended dismissal for failure to raise a meritorious federal claim. The district court adopted the recommendation and dismissed the petition. The ct also denied a cert of appealability. Petitioner appealed; the COA granted a certificate of appealability.

Court reiterated that "There is no constitutional or inherent right of a convicted person to be conditionally released before expiration of a valid sentence." States may establish parole systems, but there is no duty to do so. The Supreme Court found that Nebraska's parole system (in 1979) should be afforded some constitutional scrutiny b/c the statutory scheme was unique, ordering that an inmate SHALL be released unless certain factors are present. The same was true of Montana's system. And the reasoning applied even in cases where the parole board had broad discretion. Even if the board has discretion, if the board determines, in its discretion, that the factors are met such that the statute requires release, there is a liberty interest.

The Sixth Circuit, sitting en banc, decided in Sweeton v. Brown, 27 F.3d 1162 (6th Cir. 1994), that Michigan's parole system does not create a liberty interest. The Sweeton decision, however, was not dispositive b/c Mich had since amended the parole system to curtail discretion.

But Michigan's system does not presume release (e.g., release mandated unless certain factors present). Under the Mich system, any expectation of release is limited to a class of inmates. So at best, only a limited class of inmates could have a potential liberty interest. And this class is not readily discernible from the statute. And the reasons the parole board could use to deny parole are ambiguous in the statute: there is very broad discretion. Beyond this discretion, there is the issue that "the classification into which each prisoner is placed is a 'probability.' While Petitioner may have been classified as a 'high probability of parole,' a probability does not equal a presumption."

Conclusions:
Mich's amendments to the parole system do not change the holding in Sweeton. "There is no 'legitimate claim of entitlement to' parole, . . . and thus no liberty interest in parole."

Judge Cole dissented. He found that under Supreme Court precedent Michigan's parole system creates a presumption that release will be granted. There is a liberty interest for inmates classified with a "high probability of parole."

Both the majority and the dissent are fun to read. The language is energetic and the writers use entertaining and colorful analogies, examples, and quotes.

More Double Jeopardy and CP: Amended Opinion

On July 28, 2011, the Sixth Circuit decided United States v. Dudeck, No. 09-3231 (see older post on this blog). On September 14, 2011, the Court issued an amended opinion (to be published). Panel of Judges Keith, McKeague, and Kethledge. Mr. Dudeck proceeded pro se.

The defendant had asserted that double jeopardy precluded conviction on all three CP counts. Court concluded that possession of CP (18 U.S.C. 2252A(a)(5)(B)) is a lesser-included offense of receipt (18 U.S.C. 2252A(a)(2)(A)). Because it was unclear whether the two convictions under 2252(a)(2) and 2252A(a)(2)(A) were based on receiving the same images, the Court remanded. Issue for remand is whether separate acts underlie the convictions.

Double-jeopardy analysis conducted under plain-error standard. The Court considered the issue of whether conviction under both 18 U.S.C. 2252A(a)(2)(A) and 2252(A)(a)(5)(B) (this citation in the opinion appears to be a typographical error) for the same material is permissible in United States v. Ehle. The Ehle court concluded that possession under 2252(A)(a)(5)(b) (again, this citation appears to be an error) is a lesser-included offense of receipt under 2252A(a)(2)(A). Conviction under both sections is acceptable if based on separate conduct.

Whether there was separate conduct in this case was unclear, so remand was necessary.

Next argument was that convictions for receiving CP under 2252(a)(2) and receiving CP under 2252A(a)(2) violated double jeopardy. One section deals with pictures of real minors; the other section deals with pictures of real minors or "virtual" minors. Remand necessary to determine whether the defendant received different kinds of images.

The 120-month, within GLs sentence was reasonable (if all the convictions are affirmed on remand).

Why the amended opinion? On August 23, the government filed for rehearing. On September 14, the Court denied this petition, and filed the amended opinion. The petition for rehearing cited confusion as to which counts would be vacated should the district court conclude that there was a violation of double jeopardy. The government argued that the count with the lower punishment should be vacated and the one with the higher punishment should stand. The amended opinion seems to clear up the confusion.

Stop! Or I'll tase you! (+FSA)

I just wanted to blog this case b/c the police are quoted as saying: "Stop! Police! Or I'll tase you!" There's just charm to such cries! (Plus, I was a big Tom Swift fan growing up, and I read somewhere that TASER is a random acronym. The guy who came up with the taser didn't know what to call it, so he decided on Tom A. Swift's Electric Rifle, or TASER. You really needed to know that. . . .)

So, Court of Appeals upholds denial of a motion to suppress in United States v. Ruff, No. 08-4428 (6th Cir. Sept. 9, 2011) (unpublished). Panel of Chief Judge Batchelder, and Judges Boggs and White.

Defendant argued that the officer's initial approach to the defendant, during which the officer identified himself as a police officer, was an arrest requiring probable cause. Defendant argued the officer lacked PC for an arrest, and even reasonable suspicion for a Terry stop. Court finds the encounter was neither an arrest nor a Terry stop. The defendant was not seized. The officers had approached some men drinking beer in a high-crime area on a stoop with no-trespassing signs around it (after they had received a tip re drugs and a gun from a reliable informant). The officers identified themselves as police officers. The defendant immediately fled.

Court goes on to say that even if there was a seizure, it was, at most, a Terry stop. The officers had received a tip (from a reliable informant) that a person matching the defendant's description had drugs and a gun. Such a tip can establish reasonable suspicion to support a stop. So there was reasonable suspicion to support a stop here.

The defendant next argued that he was arrested when the officer deployed the taser and there was no PC for an arrest then b/c the defendant threw the gun away at the same time the officer deployed the taser. The Court rejected the argument. The officer did not deploy the taser until he saw the gun, so he had PC. The tip, the flight, the disposal of the gun all gave the officer PC for an arrest.

Defendant next argued that the FSA should have applied to him. The offense occurred on November 21, 2007. The Court cites Carradine, saying the FSA is not retroactive. This case is a Carradine case: sentencing and appellate briefing occurred prior to enactment of the FSA on Aug. 3, 2010.

Jury Finding on Drug Quantity

United States v. Jones, No. 08-5009 (6th Cir. Sept. 6, 2011) (unpublished). Panel of Judges Gibbons, Rogers, and Cook.

Defendant appealed mandatory life sentence for possession with intent to distribute 108 grams of meth. Jury made no findings of fact regarding quantity. Also argued that the dist ct erred in making findings regarding prior convictions necessary for the mandatory life sentence under 21 U.S.C. 841(b)(1)(A). The government conceded the error regarding the jury's lack of a quantity finding. The Court found that the argument on the prior convictions was foreclosed by S Ct precedent.

The Court vacated the sentence and remanded.

The only evidence presented at trial on the issue of quantity was the testimony of the government's drug-chemistry expert. This expert testified that she had calculated the weight of the meth as 99 grams. She calculated the purity as 73%: so the "pure" meth quantity was 72 grams.

The dist ct instructed the jury that while the indictment alleged certain quantities the evidence need not establish those quantities. The instruction was that the evidence only needed to establish that a measurable amount of meth was the subject of the acts charged. The jury was not asked to make a quantity determination.

At sentencing, the government presented testimony to prove the defendant's prior convictions for purposes of the mandatory life sentence. The dist ct found that there were valid prior convictions and sentenced the defendant to life.

The Court of Appeals found that the dist ct plainly erred in applying 841(b)(1)(A) w/o a jury finding of quantity. Gov conceded the plain error. Jury must find beyond a reasonable doubt any fact that increases the statutory maximum sentence (other than a prior conviction). Section 841(b)(1)(A) provides for mandatory life when a defendant has two prior, qualifying convictions, and the amount of meth was 50 grams or more or the the mixture containing a detectable amount of meth exceeded 500 grams. W/o this quantity determination, the max sentence is 30 years. The life sentence was clear error.

The Court did affirm the dist ct's findings re the priors. Following Apprendi, the Court found that prior convictions need not be found by a jury. Sentencing judges may find prior convictions based on a preponderance of the evidence.