Interesting Habeas Win

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. 

Speedy Trial, Border Searches, CP Issues

United States v. Stewart, No. 12--1427 (6th Cir. Sept. 3, 2013) (for publication).

Panel of Judges Gilman, Griffin, and White. 

D convicted of violating 18 U.S.C. 2252A(a)(1). 

Facts:

* D flew into Detroit from Japan.  Randomly approached by customs officer at int'l bag claim.  Sent to secondary inspection area. 

* Customs officer attempted to search one laptop, but couldn't b/c battery dead and power cord required int'l converter.  While searching a second laptop, the officer found thumbnails of nude children.  Officer held laptops for further examination, but released the D.  ICE agent took computers to ICE office in Detroit. 

* Forensic analyst previewed one laptop and found suspected CP.  Officers got warrant.  Did forensic exam.  Found CP. 

* In '09, grand jury charged D with transporting CP. 

* D moved ct to dismiss case after passage of time based on speedy-trial grounds.  (An error in the CM/ECF calendaring program put the trial date beyond the seventy-day period.)  Ct dismissed case w/o prejudice. 

* Grand jury brought a second indictment a month later. 

Issues and Conclusions:

* Looking to U.S. v. Tinklenberg, 131 S. Ct. 2007 (2011), the COA concluded "the speedy-trial clock automatically stops when a defendant files any type of pretrial motion, including a motion to dismiss for a Speedy Trial Act violation."  B/c one day remained on the speedy-trial clock when the D filed the original speedy-trial motion, that motion tolled the clock and there was no violation. 

* The speedy-trial issue was reviewable here even though it was from the earlier case (otherwise, there could be no review).  Footnote 1 addresses.

* D was not entitled to dismissal with prejudice.  So subsequent indictment proper.

* The search of the computers in Detroit was not an "extended border search."  The computers never cleared the border.  This search was just a routine border search.  No 4th Am violation. 

* Cropping and brightening of pics could make the pics CP, even if original pics were not necessarily CP. 

CP Restitution

The issue of restitution in child-pornography cases has been one we've talked about quite a bit here, at CDAM conferences, and elsewhere.  On June 27, 2013, the Supreme Ct. granted cert in Paroline v. United States, No. 12--8561.


Issue:

"What, if any, causal relationship or nexus between the defendant's conduct and the victim's harm or damages must the government or the victim establish in order to recover restitution under 18 U.S.C. Sec. 2259?"

Briefs were submitted August 19, 2013, but additional briefing is still pending.

Gunshot Residue

United States v. Stafford, No. 12-3238 (6th Cir. June 11, 2013) (for publication).  Panel of Judges Boggs, White, and McCalla (W.D. Tenn.).

Not a "new" case now, but worth noting.

Defendant (D) moved dist ct pre-trial to exclude gunshot-residue evidence, citing rules 702 and 403.  D asked for Daubert hrg.  Dist ct denied the motion. 

On appeal, the defendant made "four arguments regarding the inadmissibility of the gunshot-residue evidence. First, Stafford states that '[gunshot-residue] testing will not determine whether an individual fired a gun, was present when a gun was fired by someone else, or was merely in an environment in which [gunshot residue] existed.'  Stafford claims that because these three possible outcomes summarize the testimony of the Government's expert Robert Lewis—and because Lewis could not testify whether Stafford actually fired the weapon—Lewis 'could not reasonably make any conclusions as to the actual source of the six [gunshot-residue] particles found,' and therefore Lewis's testimony did not meet the standards of Daubert or Rule 702."  Dist ct allowed defense expert to testify regarding the evidence, but the defense did not call him. 

The defendant also argued that gunshot-residue evidence is imprecise.  COA said five particles on D's hand meant the conclusion that the D had residue on his hand was reliable. 

The argument that the particles could have been transferred inadvertantly was likewise unavailing.  COA found the evidence sufficiently reliable.  Defense cross-examined the gov expert on the point.  As to whether the police used proper techniques to gather the evidence, COA found these arguments do not go to reliability.  The arguments go to the weight of the evidence, not admissibility.  Cross-examination allowed jury to consider the weight of the evidence.    

Evidence not unfairly prejudicial under rule 403. 

Opinion also addresses ACCA.  Conviction for "aggravated riot" under Ohio law counts for ACCA purposes.  And it touches on 3C1.2, reckless endangerment.  3C1.2 applied: defendant threw loaded gun against a building near a crowded street and nightclub. 

The Crack Plot Thickens

OK, yesterday, United States v. Doe was released.  No case #.  Panel of Judges Keith, Cole, and Rogers.  It's for publication and there's a concurrence by Cole and a dissent by Rogers.  The opinion is good:

 

"For the reasons stated above, we hold that applying the new [FSA crack] minimums in Defendant’s § 1B1.10(b)(1) calculation is the only way to give effect to Congress’s intent to achieve consistency with other Guidelines provisions, especially with regard to which kinds of defendants—cooperative and uncooperative—are eligible for sentence reductions."

 

Defense counsel is likely to be able to surmise why the COA redacted. 

 

The crack issues swirl on. . . .

Shocking! Medical Procedure Shocks the Conscience and Evidence Must Be Excluded

United States v. Booker, No. 11--6311 (6th Cir. Aug. 26, 2013) (for publication). 

Panel of Judges Gilman, Gibbons, and Rogers.  Judge Gibbons dissented. 

Defendant (D) had hidden crack in his rectum.  Police suspected the D had contraband in his rectum and took him to a doctor.  Without the D's consent, the doctor intubated the D for an hour, rendered him unconscious for 20 to 30 minutes, and paralyzed him for 7 to 8 minutes.  Using a finger, the doctor retrieved the crack and turned it over to the officers.

Even if the doctor was acting entirely for medical reasons, the D was under police control; in these circumstances, the procedure must be seen as attributable to the state for Fourth Amendment purposes.  The procedure, to which the D never consented, "shocks the conscience"; the evidence must be excluded. 

Case started with traffic stop.  Police knew the D from prior encounters.  Drug dog alerted near the D.  During pat down, officer noticed D allegedly "clenched his buttocks."  Officer found rolls of currency, but no drugs.  Search of passenger seat revealed baggies with marijuana and powder residue.  Police arrested D for possessing marijuana despite a an insufficiency of actual marijuana to justify the arrest under Tennessee law. 

Post-arrest, the D's actions made the officers believe he had something secreted in his buttocks.  Strip search conducted.  Officer claimed to see a string protruding.  After an altercation, the officers took the D to a hospital.  Doc told D that doc had to conduct the "procedure" (manually removing any drugs from the rectum) b/c the rectum can absorb drugs quickly, which could create a life-threatening situation.  Naked and cuffed, the D refused to submit.  The doc said he had a "duty" to remove any dangerous substance.  Police allegedly did not direct the doc to do anything. 

D contracted his muscles to preclude the doc's "examination."  Doc ordered injection of a muscle relaxant.  Encounter escalated.  Nurse administered a sedative and paralytic agent intravenously.  D intubated to control breathing.  During the paralysis, the doc removed the rock of crack (> 5grams).  Officer took the rock as evidence. 

Indictment followed.  D argued the officer lacked probable cause to arrest him for marijuana possession and that post-arrest treatment was unreasonable under 4th Am: invasion of privacy, dignity, and "liberty to refuse medical treatment."  Dist ct denied motion.  Jury convicted D.

Conclusions:

D’s "Fourth Amendment rights were violated. The officers brought [D] to [the doctor] and stood by while [the doctor] performed a highly intrusive and dehumanizing procedure on [D] without his consent. On the facts of this case, [the doctor's] actions are attributable to the state government and were so unreasonable as to shock the conscience. Because this conduct is sufficiently deliberate and culpable, suppression of the evidence was a proper remedy."

 

* Sufficient nexus to attribute doc's actions to police. 

 

* No solid evidence D consented to "procedure."  At most there could have been consent to an undrugged digital rectal examination, so D could avoid paralysis.  Doc admitted the D did not consent to paralysis. 

 

* No reasonable officer "could believe that, without direction from the police, and over the clear refusal to consent by a conscious and competent patient, a doctor could lawfully go ahead and perform such a procedure. Even if [this doctor] was motivated by benevolent medical ideals, his actions in paralyzing and intubating [the defendant] and performing a rectal examination without his express or implied consent constitute medical battery."

 

* Police used doc as tool to search D's person. 

 

* "Procedure" here unreasonable.  From a legal standpoint, "investigative conduct that would shock

the conscience for purposes of the Due Process Clause is 'unreasonable' for purposes of the Fourth Amendment."

 

* Factors to consider regarding constitutionality of forced surgery: 1) extent of procedure's threat to safety/health of individual; 2) extent of intrusion upon individual's dignitary interests in privacy and bodily integrity; 3) community's interest in fairly and accurately determining guilt or innocence.  "In addition, when there was time to obtain a court order and the police declined to seek one, the suspect’s privacy interests should be given particular solicitude."  These factors, analyzed in the circumstances presented, compelled the conclusion that the 4th Am was violated. 

 

* Exclusion necessary.  No good-faith exception to save evidence from exclusion: "Based on the circumstances of this case, a reasonably well-trained officer and physician would have known that the search was unlawful."

 

Judge Gibbons dissented.

 

She did not believe the doctor was a state actor.

 

She found that "[t]he district court reasonably found that the officers took [the D] to the emergency room because they believed he had a serious health problem.  There is no evidence that the officers had met [the doctor] prior to this incident, knew he would be at the emergency room they took [the D] to at that particular time of day, or knew that he had previously worked with the Sheriff’s Department.  In the absence of a record establishing these facts, the premise that [the doctor] was a mere 'tool' of the officers is unsupportable."

 

 

OK, These Cases Are Just Getting Confusing

OK, X (below) was good, but same day, United States v. Joiner, No. 12--4508 (6th Cir. Aug. 20, 2013) (for publication), comes out.  Judges Boggs, McKeague, and Beckwith (S.D. Ohio).  This latter opinion comes to the opposite conclusion from that expressed in X: the new FSA mand mins do not apply. 

Also on the same day, the COA filed an opinion-correction letter in X, a letter not available to the public.  So the X opinion has been "corrected," but not publically.  And the COA has allowed an extension of time for the gov to seek rehearing in X. 

So we wait. . . .