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Trevino v. Thaler, 569 U.S. _____ (2013)

Carlos Trevino was convicted of capital murder in Texas state court and sentenced to death. Neither new counsel appointed for direct appeal nor new counsel appointed for state collateral review raised the claim that trial counsel provided ineffective assistance during the penalty phase by failing to adequately investigate and present mitigating circumstances. When that claim was finally raised in Trevino's federal habeas petition, the district court stayed proceedings so Trevino could raise it in state court. The state court found the claim procedurally defaulted. The federal court concluded that this failure was an independent and adequate state ground barring federal courts from considering the claim. The Fifth Circuit affirmed. The Supreme Court vacated and remanded.

 

The Supreme Court held, in Martinez v. Ryan, that "a procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the [State's] initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective." Martinez concerned a prisoner from Arizona, where state law required the prisoner to raise the claim during his first state collateral review proceeding. Texas law does not require a defendant to raise his ineffective-assistance claim on collateral review and the Fifth Circuit subsequently held that Martinez was inapplicable to Texas cases. Where, as here, state procedures make it highly unlikely in a typical case that a defendant will have a meaningful opportunity to raise an ineffective-¬assistance-of-trial-counsel claim on direct appeal, the Martinez exception applies. Texas procedures make it nearly impossible for an ineffective-assistance claim to be presented on direct review; a writ of habeas corpus is normally needed to gather the facts necessary for evaluating such claims. Were Martinez not to apply, the Texas procedural system would create significant unfairness. The Court noted Texas courts' own "well-supported determination that collateral review normally is the preferred procedural route for raising an ineffective-assistance-of-trial-counsel claim." Failure to consider a lawyer's "ineffectiveness" during an initial-review collateral proceeding as a potential "cause" for excusing a procedural default will deprive the defendant of any opportunity for review of an ineffective-assistance-of-trial-counsel claim.

 

Drivers should always avoid drinking and driving. Nonetheless, if you are going out tonight in New Orleans, please be particularly sure to either use a designated driver or simply call a cab.

 

The New Orleans Police Department will be conducting a sobriety checkpoint tonight (i.e.- Friday May 24, 2013) in Orleans Parish, beginning at approximately 9:00 P.M. and will conclude at approximately 5:00 A.M. Motorists will experience minimal delays and should have the proper documentation available if requested (i.e.- proof of insurance, driver's license, etc.).

 

 

United States v. Andrew Kelly, United States Court of Appeals, 5th Circuit, Docket No. 12-30936

After Andrew Kelly pled guilty to possession with intent to distribute fifty (50) grams or more of cocaine base substance and possession of a firearm during a drug-trafficking offense, he appealed his sentence arguing that, pursuant to 18 U.S.C. 3582(c)(2), he was entitled to benefit from all of the changes wrought by the Fair Sentencing Act (FSA), Pub. L. No. 111-120, 124 Stat. 2372. As such, Kelly contended that the district court erred in declining to reduce his sentence below the original mandatory minimum sentence of 10 years. However, other courts had previously ruled that where a defendant was subject to a 10-year mandatory minimum sentence, the district court was not authorized to grant a reduction below that minimum. In light of this persuasive authority, the Fifth Circuit declined to treat a section 3582(c)(2) modification hearing as the equivalent of an original sentencing under Dorsey v. United States. Accordingly, the court affirmed Kelly's sentence.

 

State of Louisiana v. Timothy Bazile, Supreme Court of Louisiana, Docket No. 2012-KA-2243

Timothy Bazile was indicted by a grand jury for the second degree murder of his wife, Kendra. On May 18, 2011, the district court first set an October 3, 2011 trial date and notice was given to Bazile and his counsel in open court. Bazile subsequently attempted to waive his right to a jury trial after a colloquy with the district judge at a hearing on September 19, 2011. However, the State objected, arguing that Bazile's waiver was made in less than forty-five days prior to trial in violation of an newly enacted amendment to the Louisiana Constitution, La. Const. art. I, sec. 17(A). The district judge made no ruling on the State's objection at that time.

 

On the first day of trial, Bazile asked for a continuance on the ground that the State had failed to fully comply with discovery requests. Overruling the State's objection, the district court set a new trial date of October 11, 2011. Further, giving effect to Bazile's September 19, 2011 jury trial waiver, the new trial was set to proceed before the district judge alone without a jury. The State again objected, arguing the Bazile failed to waive trial by jury within the required time limitations under La. Const. art. I, sec. 17(A). In an attempt to overcome the State's objection, Bazile offered to re-set trial beyond forty-five days from the earlier waiver. But, the State objected to this offer as well, arguing a continuance does not extend the forty-five day period. It was the State's position that, whenever Bazile's trial was held, the mode of trial would be a trial before a jury because the forty-five day period contemplated by La. Const. art. I, sec. 17(A) had already run before the original October 3, 2011 trial date. The district judge ruled that Bazile had a right to waive a jury trial at any time before trial under the federal constitution; and, in turn, the Louisiana constitutional provision which imposed limits on that right was unconstitutional. The State sought a writ for review but was given no relief from the First Circuit Court of Appeal. The State then applied to the Louisiana Supreme Court for review.

 

After its review of the record, the Louisiana Supreme Court concluded the constitutionality of La. Const. art. I, sec. 17(A) was raised by the district court sua sponte, not the parties. When the matter was once more before the district court, Bazile did file a "Motion to Declare Constitutional Amendment Unconstitutional," claiming La. Const. art. I, sec. 17(A), as amended in 2010, violated the United States Constitution. Nonetheless, the Louisiana Supreme Court found that, since there is no explicit or implicit federal or state constitutional right to demand trial before a judge sitting alone, the district court's ruling was erroneous. Accordingly, the Louisiana Supreme Court reversed and remanded the case for further proceedings.

 

State of Louisiana v. Giovanni Brown, Supreme Court of Louisiana, Docket No. 2012-KP-0872

The Louisiana Supreme Court granted certiorari in this case to consider whether the United States Supreme Court's decision in Graham v. Florida, 130 S.Ct. 2011 (2010), applied in a case in which the juvenile offender committed multiple offenses resulting in cumulative sentences matching or exceeding his life expectancy without the opportunity of securing early release from confinement. Giovanni Brown, 29, was serving mandatory life in prison for a Jefferson Parish aggravated kidnapping conviction, and another 40 years for his convictions of four armed robberies, which were originally set to run consecutively. Brown committed the crimes in 1999, when he was 16 years old.

 

After Graham v. Florida, Judge Robert Murphy of the 24th Judicial District Court ruled last year that Brown is eligible for parole for the aggravated kidnapping conviction. Yet, Judge Murphy also took the Graham's mandate a step further and applied it to Brown's 40-year sentence for the armed robberies, making Brown eligible for parole at age 46. Without the extension of Graham's mandate, Brown would not be eligible for parole until he is 86 years old. Judge Murphy stated: "To impose 40 years of additional time without benefits after a parole review of a life sentence would effectively negate Graham's ultimate directive to provide an opportunity for rehabilitation for the juvenile." The Jefferson Parish District Attorney's Office appealed and argued its position to the Supreme Court of Louisiana in December 2012.

 

Having reviewed the record and the applicable law, the Louisiana Supreme Court found Graham's holding that the Eighth Amendment's prohibition of cruel and unusual punishment forbids the imposition of life in prison without parole for juveniles committing non-homicide crimes, applied only to sentences of life in prison without parole, and did not apply to a sentence of years without the possibility of parole. Therefore, the Louisiana Supreme Court reversed the decision of the trial court, which amended Brown's four 10-year sentences for four armed robberies.

 

Prior to passage by Louisiana's citizens, Amendment 2 to the Louisiana Constitution pitted Governor Bobby Jindal and New Orleans District Attorney Leon Cannizzaro against one another, with Jindal in favor of the Amendment and Cannizzaro in opposition.  Seventy-four percent of Louisiana's citizens apparently sided with Jindal, voting in favor of Amendment 2 in November 2012.  As a result, criminal defendants have begun challenging the constitutionally of many of Louisiana’s gun laws just as Cannizzaro warned.  Attorney Stephen Hébert recently published an article in Attorney at Law Magazine on this issue, which presently appears headed to the Louisiana Supreme Court.  Click here to read the full article, New Orleans District Attorney Leon Cannizzaro: I told you so?

 

Moncrieffe v. Holder, 569 U.S. _____ (2013)

Adrian Moncrieffe, a Jamaican citizen, entered the United States legally in 1984 when he was three (3) years old. During a 2007 traffic stop, police found 1.3 grams of marijuana (i.e. the equivalent of approximately two (2) or three (3) marijuana cigarettes) in Moncrieffe's car. Thereafter, Moncrieffe pleaded guilty under Georgia law to possession of marijuana with intent to distribute marijuana.

 

This conviction would later lead to other consequences for Moncrieffe. Under the Immigration and Nationality Act ("INA"), a noncitizen convicted of an "aggravated felony" is deportable, 8 U.S.C. § 227(a)(2)(A)(iii), and ineligible for discretionary relief. The INA lists as an "aggravated felony" "illicit trafficking in a controlled substance," including conviction of an offense that the Controlled Substances Act ("CSA") makes punishable as a felony (i.e.- by more than one year's imprisonment). A state conviction is a felony punishable under the CSA only if it involves conduct punishable as a felony under federal law. Possession of marijuana with intent to distribute is a CSA offense, 21 U.S.C. § 841(a), punishable by up to five years' imprisonment.

 

Citing the INA and the CSA, an immigration judge ordered Moncrieffe removed from the United States. The Board of Immigration Appeals subsequently affirmed, and the Fifth Circuit Court of Appeals denied a petition for review, rejecting Moncrieffe's reliance on § 841(b)(4), which makes marijuana distribution punishable as a misdemeanor if the offense involves a small amount for no remuneration.

 

Rejecting the government's contention that that § 841(b)(4) was merely a mitigating sentencing factor, not an element of the offense, the Supreme Court reversed and remanded. The Court employed the "categorical approach," examining what the state conviction necessarily involved and not the facts underlying the case. Since a conviction under the Georgia's statute, alone, did not reveal whether either remuneration or more than a small amount was involved, Moncrieffe's conviction could correspond to either the CSA felony or the CSA misdemeanor. The Court also found that the government's proposal that noncitizens be allowed, during immigration proceedings, to demonstrate that their convictions involved only a small amount of marijuana and no remuneration was inconsistent with the INA's text and the categorical approach and would unduly burden immigration courts and the noncitizens involved. The Court further explained that escaping aggravated felony treatment does not necessarily mean escaping deportation, because any marijuana distribution offense renders a noncitizen deportable as a controlled substances offender, but with an opportunity seek relief from removal. Accordingly, the Court held that, if a noncitizen's conviction for marijuana distribution fails to establish that the offense involved either remuneration or more than a small amount of marijuana, it is not an aggravated felony under the INA.

 

Missouri v. Tyler McNeely, 569 U.S. _____ (2013)

Missouri police stopped Tyler McNeely's truck for speeding and crossing the center line. Thereafter, McNeeely declined to take a breath test to measure his blood alcohol concentration ("BAC"). McNeeely was then arrested and taken to a hospital. McNeely refused to consent to have his blood drawn at the hospital, but the officer directed a lab technician to take a sample of McNeely's blood, without any attempt to secure a search warrant. McNeely's BAC tested above the legal limit; and, in turn, McNeely was charged with driving while intoxicated.

 

The trial court held that the exigency exception to the warrant requirement did not apply because, apart from the fact that McNeely's blood alcohol was dissipating, no circumstances suggested that the officer faced an emergency; consequently, the test results were suppressed. The Missouri Supreme Court later affirmed.

 

Declining to announce a per se rule, the U.S. Supreme Court looked to the "totality of circumstances." The Court found that blood testing is different in critical respects from other destruction-of-evidence cases because BAC evidence naturally dissipates in a gradual and relatively predictable manner. Since an officer must typically obtain a trained medical professional's assistance before having a blood test conducted, some delay between the time of the arrest and time of the test is inevitable regardless of whether a warrant is obtained. As such, the Court stated that circumstances may make obtaining a warrant impractical such that dissipation will support an exigency, but such analysis should nonetheless be done on a fact specific, case by case basis. Therefore, the Court held that, when officers in drunk-driving investigations can reasonably obtain a warrant before having a blood sample drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so. In light of the specific facts of McNeely's case, the Court affirmed the trial court's suppression of the test result.

 

United States v. Richard Scruggs, Untied States Court of Appeals, 5th Circuit, Docket No. 12-60423

Richard "Dickie" Scruggs, an attorney and brother-in-law of Senator Trent Lott, was convicted in connection with a bribe of a state circuit court judge in a lawsuit involving a fee-sharing dispute with his co-counsel (the "Wilson Case"). More particularly, Scruggs offered to recommend the judge to Lott for a federal district court judgeship in exchange for the judge's help in winning the Wilson Case. Scruggs appealed from the denial of his 28 U.S.C.§ 2255 motion. However, the U.S. 5th Circuit Court of Appeal concluded that Skilling v. United States, which addressed the constitutionality of the honest-services statute (i.e.- 18 U.S.C. § 1346), had no effect on the district court's subject matter jurisdiction over Scruggs' guilty plea. Scruggs had shown neither his actual innocence of post-Skilling honest-services fraud nor that there was cause and prejudice for failing to raise a constitutional-vagueness challenge to § 1346. Accordingly, Scruggs procedurally defaulted on his claim and the district court correctly denied his § 2255 motion. The appellate court also rejected Scruggs' First Amendment overbreadth challenge to § 1346. Accordingly, the U.S. 5th Circuit Court of Appeal affirmed Scruggs' conviction.

 

United States v. Ronald Mitchell, United States Court of Appeals, 5th Circuit, Docket No. 12-30423

Former New Orleans police officer Ronald Mitchell shot and killed Danny Brumfield outside the Ernest N. Morial Convention Center shortly after Hurricane Katrina ravaged New Orleans.  Mitchell was not charged in the September 2005 shooting.  Rather, a grand jury indicted Mitchell in 2010 on charges that Mitchell lied about the shooting's circumstances during a deposition for a civil lawsuit filed by Brumfield's widow.

 

After a jury convicted Mitchell of obstruction of justice and perjury for lying under oath when he said he left his patrol car after shooting and checked for a pulse, Mitchell appealed, arguing that the district erred in not granting his motion for judgment of acquittal and new trial.  In addition, Mitchell contended that his convictions were multiplicitous

 

Regarding the motion for judgment of acquittal and new trial, the United States 5th Circuit Court of Appeal found that, despite Mitchell’s assertion that he was unduly prejudiced by the late production of Brady material only five (5) days prior to trial, his counsel was nonetheless able to effectively use that material to obtain an acquittals on the counts related to that material.  As such, the court found that Mitchell suffered no prejudice.  The 5th Circuit also rejected Mitchell’s contention that his convictions were multiplicitous because “each charge requires proof of an element that the other does not.”  Accordingly, the 5th Circuit affirmed Mitchell’s convictions and sentence

 

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