Vol. XXVI, No. 12: Electronic Edition
Please do not rely solely on the summaries below. Each case name links to the full text of the opinion, which we recommend you read in addition to these brief synopses. The SDR is sent to current TCDLA members
Certiorari from the Ninth Circuit
Cullen v. Pinholster, 563 U.S. ___, 09-1088 (4/4/11)
Facts: A California state court convicted Pinholster of double murder and sentenced him to death. After exhausting his state court remedies, he petitioned for habeas corpus relief in a California federal district court, arguing that he was denied effective assistance of counsel at both the guilt and sentencing phases of trial. The district court upheld Pinholster’s conviction but granted habeas relief on his death sentence.
The Ninth Circuit reversed the lower court, holding that the denial of habeas relief during the guilt phase was appropriate, but not during the penalty phase. The court noted that Strickland v. Washington requires trial counsel to investigate mitigating evidence at the penalty phase. Here, the court reasoned that Pinholster’s counsel failed to meet his obligations.
Question: Can a federal court overturn a state criminal conviction on the basis of facts the defendant could have alleged, but did not, in state court?
Conclusion: No, limiting “review to the state-court record is consistent with our precedents.” Justice Stephen Breyer dissented in part: “I do not join Part III, for I would send this case back to the Court of Appeals so that it can apply the legal standards that Part II announces to the complex facts of this case.” Justice Sonia Sotomayor dissented in full: “Some habeas petitioners are unable to develop the factual basis of their claims in state court through no fault of their own.”
Certiorari from the Fourth Circuit
Virginia Office for Protection and Advocacy v. Reinhard, , 563 U.S. ___, 09-529 (4/19/11)
Facts: The Virginia Office of Protection and Advocacy (VOPA), a state agency dedicated to advocating for persons with disabilities, sued several Virginia state officials in their official capacities in a Virginia federal district court. VOPA alleged that the officials violated two federal statutes when the officials refused VOPA access to state records which VOPA argued it was entitled. The officials moved to dismiss the case arguing that they were immune to suit under the Eleventh Amendment.
The Fourth Circuit reversed the district court, holding that the state officials were immune to suit under the Eleventh Amendment. The court reasoned that: (1) Congress did not abrogate state immunity under the statutes which VOPA sued under, and (2) the mere receipt of federal funds by Virginia under the two statutes did not mean that the state had consented to suit. The court declined to extend the Eleventh Amendment exception established in Ex parte Young, 209 U. S. 123 (1908), where a private party may seek prospective injunctive relief against state officials, noting that VOPA was not a private party but rather a state agency.
Question: Does the Eleventh Amendment categorically preclude an independent state agency from bringing an action in federal court against state officials for prospective injunctive relief to remedy a violation of federal law under the doctrine of Ex Parte Young?
Conclusion: No: “Ex parte Young allows a federal court to hear a lawsuit for prospective relief against state officials brought by another agency of the same state.” Chief Justice John G. Roberts Jr. disagreed with the majority’s “substantial and novel expansion of what we have also called a ‘narrow exception’ to a State’s sovereign immunity.”
Pearson v. Holder, 624 F.3d 682 (5th Cir. 2010).
Where Texas state prisoner sued under 42 U.S.C. § 1983, challenging SORNA and state sex-offender registration laws as unconstitutional, district court reversibly erred in dismissing prisoner’s claims as not ripe. In determining ripeness, a court must balance the issues’ fitness for judicial decision against the hardship to the parties resulting from withholding court consideration. Inasmuch as the prisoner’s release date was only some two years hence, the Fifth Circuit concluded that his case was sufficiently ripe for adjudication; there was no further factual uncertainty, and the prisoner could suffer harm if his claims were not adjudicated as soon as practicable. Accordingly, the Fifth Circuit reversed the judgment dismissing the prisoner’s claims and remanded for further proceedings.
United States v. Jeong, 624 F.3d 706 (5th Cir. 2010).
Where defendant, a South Korean national, was prosecuted for bribery in an American court on the basis of the same bribery scheme for which he had been previously convicted in South Korea, his subsequent, American conviction was not barred by the Convention on Combating Bribery of Foreign Officials. Article 4.3 of this Convention does not prohibit two signatory countries from prosecuting the same offense. Rather, it imposes an obligation only to consult on jurisdiction when one of the countries so requests; here, no such request was made. Nor did the United States waive its jurisdiction to prosecute defendant by dint of assisting South Korea in that country’s investigation of defendant or by dint of the United States’ representation, in its request for mutual legal assistance, that it was “not seeking to further prosecute [defendant]”; no source of domestic or international law suggested that the United States either impliedly or expressly ceded its right of prosecution to South Korea.
United States v. Fisher, 624 F.3d 713 (5th Cir. 2010).
Where district court sua sponte declared a mistrial after two prosecution witnesses became unavailable to testify as scheduled, defendant did not impliedly consent to the mistrial by failing to sufficiently object. This is a case-by-case determination, and under the circumstances here—most prominently the district judge’s finding that defendant had sufficiently objected—there was no implied consent to the mistrial. That being the case, to retry defendant after this mistrial would violate his double jeopardy rights unless there was a manifest necessity for the mistrial; because the basis for the mistrial was the unavailability of critical prosecution evidence, the district court’s decision was subject to the strictest scrutiny, which requires the government to show that the district court carefully considered whether reasonable alternatives existed but that the court found none. Here, the government did not show—nor did the record independently show—that the court carefully considered reasonable alternatives before declaring a mistrial. Nor was the mistrial excused by defendant’s refusal to stipulate to the testimony of the two witnesses. Because defendant did not consent to the mistrial and because the district court did not carefully consider reasonable alternatives to a mistrial, defendant’s prosecution was barred by double jeopardy. Accordingly, the Fifth Circuit reversed the district court’s denial of defendant’s motion to dismiss the indictment, and it rendered a dismissal.
United States v. Wanambisi, 624 F.3d 724 (5th Cir. 2010).
In denying defendant’s motion for reduction of sentence under 18 U.S.C. § 3582(c)(2), the district court erroneously treated defendant’s motion as having been filed under Amendment 706 (pertaining only to crack cocaine offenses) rather than under Amendment 505 (applicable to heroin offenses like defendant’s). This was harmless error; the Fifth Circuit agrees with COA, affirming the denial of defendant’s motion on the alternate ground that Amendment 505 did not reduce the base offense level for the amount of heroin for which defendant was responsible.
United States v. Garcia, 625 F.3d 196 (5th Cir. 2010).
District court did not err in applying a 16-level “crime of violence” enhancement under USSG § 2L1.2(b)(1)(A)(ii); defendant’s prior Georgia state conviction for burglary, in violation of Ga. Code Ann. § 16-7-1(a), was one for the enumerated “crime of violence” of “burglary of a dwelling.”
Wiley v. Epps, 625 F.3d 199 (5th Cir. 2010).
District court did not err in holding a federal evidentiary hearing on death-sentenced Mississippi defendant’s claim, under Atkins v. Virginia, 536 U.S. 304 (2002), that he was ineligible for the death penalty due to being mentally retarded. Because the Mississippi Supreme Court improperly denied defendant’s Atkins claim without a hearing, the district court was not required to afford the state court decision deference under the AEDPA. Finally, the district court did not clearly err in finding defendant mentally retarded under the 4-prong test applicable in Mississippi. Accordingly, the Fifth Circuit affirmed the district court’s grant of federal habeas relief invalidating the death sentence imposed. (Judge Jolly concurred in the judgment only.)
Maldonado v. Thaler, 625 F.3d 229 (5th Cir. 2010).
Death-sentenced Texas defendant was not entitled to federal habeas relief on his claim, under Atkins v. Virginia, 536 U.S. 304 (2002), that he was ineligible for the death penalty due to being mentally retarded; defendant did not overcome the presumption of correctness that attached to the state habeas court’s conclusion that he did not meet his burden of establishing mental retardation. Therefore, the state court’s denial of relief was neither an unreasonable application of federal law, now an unreasonable determination of the facts in light of the evidence, as required for federal habeas relief under the AEDPA. Accordingly, the Fifth Circuit affirmed the district court’s denial of federal habeas relief.
United States v. Gonzalez, 625 F.3d 824 (5th Cir. 2010).
Where defendant sought to argue that he was not the person convicted in a 1988 drug conviction that was used to enhance his sentence to mandatory life imprisonment under 21 U.S.C. § 851, defendant’s challenge was not barred by the 5-year time limit contained in 21 U.S.C. § 851(e). That time limit applies only to challenges to the validity of the prior conviction; it does not prevent a defendant from arguing that he was not the person who was convicted of the offense. However, on the merits, defendant’s challenge to the enhancement failed because the government carried its burden of proving beyond a reasonable doubt, see 21 U.S.C. § 851(c)(1), that defendant was the person convicted in that prior case, notwithstanding the absence of fingerprint exemplars or other physical evidence to that effect.
COURT OF CRIMINAL APPEALS
Writ of Habeas Corpus from Dallas County
Ex parte Spencer, __S.W.3d__ (Tex.Crim.App. No. AP-76, 244, 4/20/11)
Denied: Meyers (8-0); Price concurred w/Hervey, Cochran
Applicant was convicted of murder and sentenced to 35 years’ confinement. He filed a motion for new trial, which was granted. On retrial, he was convicted of aggravated robbery and sentenced to life in prison. The conviction was affirmed on appeal. Applicant filed an application for writ of habeas corpus claiming that he is innocent, that trial counsel rendered ineffective assistance, and that the State violated Brady v. Maryland, 373 U.S. 83 (1963), and Mooney v. Holohan, 294 U.S. 103 (1935).
Having been remanded to the trial court for consideration twice already, CCA filed and set this case for submission and ordered the parties to brief whether applicant properly raised a free-standing actual innocence claim, whether the evidence he relies on is newly discovered or newly available, whether CCA should consider advances in science and technology when determining whether evidence is newly discovered or newly available, and whether applicant has shown by clear and convincing evidence that no reasonable juror would have convicted him in light of the new evidence.
Both CCA and the trial court rejected all claims except for the bare innocence claim. The most relevant piece of evidence is whether certain eyewitnesses could have facially identified the applicant under various light conditions, as determined by expert witness testimony. CCA concludes that, even if the evidence was reviewed as new, it does not unquestionably establish applicant’s innocence and fails to meet the threshold elucidated in Ex parte Franklin, 72 S.W.3d 671 (Tex.Crim.App. 2002).
PDR Granted from Hale County
10-0630 – Jose Angel Cordova – Possession of Controlled Substance
Did the Seventh COA err in finding that the trial court record does not support any arguable grounds of appeal for Petitioner?
For a list of issues pending before the court, click here.
COURT OF APPEALS
Summaries are by Chris Cheatham of Cheatham Law Firm, Dallas, Texas.
Farhat v. State, No. 02-10-00030-CR, 2011 WL 56056 (Tex.App.-Fort Worth Jan. 6, 2011).
D’s erratic driving plus the presence of an empty pill bottle found in D’s vehicle was not sufficient to support issuance of a blood-draw search warrant. “[C]ontrary to the trial court’s finding that the officer saw ‘pills in the console’ of [D’s] vehicle, the affidavit states only that the officer saw two pill bottles in the center console. The affidavit does not state that the bottles actually contained pills, and even if a reasonable inference could be drawn that the bottles did contain pills, the affidavit was silent as to the type of pill bottles, whether they were prescription or over-the-counter medicine bottles, whether [D] admitted to consuming pills from the bottles, or whether [D’s] demeanor or appearance suggested that he had consumed them…. The remaining facts contained in the affidavit show that [D] was driving ten miles below the speed limit shortly before 1:00 a.m., that he ‘was weaving from sided [sic] to side,’ that he turned on his right-turn signal before turning the opposite direction into the parking lot, and that he refused field sobriety tests. We do not know from the affidavit the extent of [D’s] weaving or whether he was weaving outside of his lane or into oncoming traffic nor is it reasonable to infer such facts…. [W]e hold that the magistrate did not have a substantial basis for concluding that there was a fair probability or substantial chance that [D] had committed the offense of DWI or that evidence of intoxication would be found in [D’s] blood.”
Arroyo v. State, No. 01-10-00136-CR, 2011 WL 286136 (Tex.App.-Houston [1 Dist] Jan. 27, 2011).
“Sunday at 4:50 a.m.” deemed “a time at which more individuals drive intoxicated.” Driving below the speed limit weighed in favor of RS for DWI.