For the week of June 19, 2015
In this edition:
News to Use | Top of the Ninth |
SCOTUS Focus | Short Circuits | For the Bookworms
News to use
- Alternative Sentencing in the Federal Criminal Justice System (U.S. Sentencing Commission)
- How Germany Does Prison (The Marshall Project)
- Constitution Project gets 130 former judges, prosecutors and law enforcement officials on letter advocating for SSA (SL&P)
- Another Update on a Not So Recent Discovery Post (Carl Gunn)
Top of the Ninth
- Mitchell v. U.S. (§2255) (no trial-phase IAC in investigation of possible intoxication defense or decision to pursue “good guy” strategy and cast accomplice as main malefactor) (no penalty-phase IAC, where counsel adequately investigated mental health and social history)) (Reinhardt in dissent would grant penalty-phase relief).
- Seeboth v. Allenby (§2254) (California state courts reasonably concluded that Sexually Violent Predator Act did not deprive petitioner of equal protection, where petitioner had claimed Act’s lack of timing provision for sexually violent predators was discriminatory because other civilly committed persons have statutory right to recommitment trial within specified period).
- U.S. v. Lizarraga-Tirado (Google Earth images and location tacks automatically labeled with GPS coordinates aren’t hearsay, and therefore don’t raise Confrontation Clause problem). UPDATE (6.22.15): More at Ninth Circuit Blog.
- Washington v. Ryan (no jurisdiction to hear §2254 appeal because notice of appeal was filed one day late, and motion for COA may not be construed as motion for EOT) (Rule 60(b) appeal is also dismissed because Rule 60(b) relief may not be granted solely to render notice of appeal timely on grounds identical to those authorized by FRAP 4(a), and because FPDO secretary’s miscalculation of NOA deadline was not attorney abandonment).
- Coquico v. Lynch (immigration) (California misdemeanor “unlawful laser activity,” CPC §417.26, is not categorical CIMT).
- Fuentes v. Lynch (immigration) (per Nijhawan, $10,000 threshold in 8 U.S.C. §1101(a)(43)(D) refers to specific circumstances of money laundering offense rather than element of generic crime).
- Ruiz-Vidal v. Lynch (immigration) (no-contest plea to California drug possession, CPC §11377(a), which was uncharged lesser-included of methamphetamine sale charged in information under CPC §11379(a), established crime involving methamphetamine) (Reinhardt in dissent says record is not clear enough in these circumstances to justify new exception to circuit’s en banc decision in U.S. v. Vidal).
- Newman v. Wengler (per curiam) (§2254) (Stone v. Powell bar survives AEDPA, and applied here).
- U.S. v. Macias (affidavit signed by border patrol agents that amended defendant’s delayed registration of birth was testimonial, and its introduction without agents’ testimony violated Confrontation Clause, but was harmless on plain error review) (prosecutor’s statement during argument that defendant’s registration was forged was reasonable inference, not misconduct) (in partial dissent, Wardlaw says proper standard on confrontation issue is de novo, under which government can’t show harmlessness beyond a reasonable doubt).
- U.S. v. Sanchez-Soto (unpub’d) (prosecutorial misconduct required reversal, where government waived harmless error argument).
SCOTUS focus
- McFadden v. U.S. (conviction for distributing “controlled substance analogue” (CSA) requires showing defendant either knew that substance was controlled (even if he didn’t know what type of substance it was) or else knew what type of substance it was (even if he didn’t know it was controlled)) (Court assumed arguendo government’s construction that proving that substance is a CSA requires showing that both chemical structure and effects of alleged CSA are similar to controlled substance).
- Brumfield v. Cain (§2254) (state court’s factual determinations in passing on Atkins claim—that petitioner’s IQ score of 75 was inconsistent with diagnosis of intellectual disability; and that he’d presented no evidence of adaptive impairment—were unreasonable).
- Ohio v. Clark (§2254) (three-year-old’s statements to teacher about abuse weren’t testimonial under Crawford).
- Davis v. Ayala (§2254) (reversing Ninth Circuit) (if it was federal constitutional violation for state trial court to exclude defense attorneys from hearings on prosecutor’s “race neutral” reasons for striking all seven potential black and Hispanic jurors (because there can even be a question about this?), the error was harmless).
- Hittson v. Chatman (§2254) (denial of cert.) (Ginsburg with Kagan concur with their view that though Eleventh Circuit’s ruling that Richter abrogated Ylst look-through presumption was clearly erroneous, there’s no need for SCOTUS to address the matter because en banc rehearing petition raising it is pending in Eleventh Circuit).
Short circuits
- U.S. v. Shell (4th Cir.) (North Carolina second degree rape, Gen. Stat. §14-27.3, isn’t a COV within §2K2.1(a)(4)(A)/§4B1.2) (enhancement under §3C1.2 for recklessly creating substantial risk of death/serious bodily injury by fleeing police didn’t apply to defendant seen by police speeding, then found a short time later after he’d totaled his car, because district court didn’t find that he was fleeing as opposed to being generally reckless). (H/T)
- U.S. v. Span (4th Cir.) (district court’s conclusion that three prior state robbery convictions were on different occasions and so counted as separate ACCA predicates was error, where “[n]o single offense date for any predicate robbery conviction [wa]s consistent across all three sources” of evidence provided by government). (H/T)
- Amos v. Lynch (4th Cir.) (Maryland child abuse, Md. Code, Art. 27 §35A (1988), was not “sexual abuse of a minor”/aggravate felony, since it encompassed failure to prevent sexual abuse that one has a duty to). (H/T Jim Locklin)
- U.S. v. Hernandez-Rodriguez (5th Cir.) (Louisiana aggravated battery, defined as “battery committed with a dangerous weapon,” La. Rev. Stat. §14:34, is general-intent crime and therefore no COV within §2L1.2).
- Arvelo v. Sec., Fla. Dep’t of Corr. (11th Cir.) (§2254) (under CEFL, guilty plea did not waive IAC claim) (petitioner was entitled to evidentiary hearing on whether counsel’s failure to seek suppression of confession was IAC, where confession was only direct evidence supporting intent element; “benefit” conferred by plea was irrelevant). (H/T)
- U.S. v. Wingo (11th Cir.) (district court was obligated to order competency hearing sua sponte under §4241(a), where medical records submitted with defense sentencing papers showed defendant had diminished mental capacity). (H/T)
For the bookworms
- “Ranking Drug Harms for Sentencing Policy,” Paul Jeffrey Hofer, working paper (SSRN). (H/T)
- “Get a Warrant: The Supreme Court’s New Course for Digital Privacy Rights after Riley v. California,” Alan Butler, 10 Duke J. Const. L. & Pub. Pol’y ___ (2015) (SSRN). (H/T)
- “Overcoming the Public-Private Divide in Privacy Analogies,” Victoria L. Schwartz, ___ Hastings L.J. ___ (forthcoming) (SSRN). (H/T)
- “Widening the Aperture on Fourth Amendment Interests: A Comment on Orin Kerr's 'The Fourth Amendment and the Global Internet',” David G. Delaney, 68 Stan. L. Rev. Online 9 (2015) (article). (H/T)
- “The Effects of Local Police Surges on Crime and Arrests in New York City,” John MacDonald et al., working paper (SSRN). (H/T)
- “A Natural Experiment of the Consequences of Concentrating Former Prisoners in the Same Neighborhoods,” David Kirk, 112-22 Proc. Nat’l Acad. Sci. 6943 (2015) (SSRN). (H/T)
- “Beyond the Numbers: Toward a Moral Vision for Criminal Justice Reform,” Seth Mayer, ___ Drake L. Rev. Discourse ___ (forthcoming) (SSRN). (H/T)
