September 2013 SDR – Voice for the Defense Vol. 42, No. 7

Voice for the Defense Volume 42, No. 7 Edition

Editors: Tim Crooks, Kathleen Nacozy

Supreme Court

The Michigan Court of Appeals did not unreasonably apply clearly established federal law when it retroactively applied a Michigan Supreme Court decision rejecting the ­diminished-capacity defense to D charged with a murder that occurred several years prior. Metrish v. Lancaster, 133 S. Ct. 1781 (2013).

        The Michigan Court of Appeals’ decision retroactively applying Michigan Supreme Court caselaw that rejected a diminished-capacity defense under Michigan law did not warrant disapprobation as an unreasonable application of clearly established federal law. The Michigan Supreme Court had rejected a diminished-capacity defense that it had reasonably found to have no home in a comprehensive, on-point statute enacted by the Michigan Legislature. The U.S. Supreme Court had never found a due process violation in circumstances remotely resembling inmate’s case—i.e., where a state supreme court, squarely addressing a particular issue for the first time, rejected a consistent line of lower-court decisions based on the supreme court’s reasonable interpretation of the language of a controlling statute. Fair-minded jurists could have concluded that a state supreme court decision of that order was not unexpected and indefensible by reference to existing law.

When a state’s procedural framework makes 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 good cause exception from Martinez v. Ryan, 566 U.S. 1 (2012), applies. Trevino v. Thaler, 133 S. Ct. 1911 (2013).

        A Texas court found petitioner death row inmate’s ineffective assistance of trial counsel (IATC) claim was procedurally defaulted for failure to raise it in initial state post-conviction proceedings. On the inmate’s federal habeas petition, the district court held the procedural default was an adequate state ground barring federal review. The Fifth Circuit affirmed. The U.S. Supreme Court vacated the Fifth Circuit’s judgment and remanded.

        Texas did not expressly require that IATC claims be raised on initial collateral review. Texas law on its face appeared to permit that the claim be raised on direct appeal. But Texas procedure made it virtually impossible for appellate counsel to adequately present an IATC claim on direct review, as the trial record often failed to contain the necessary substantiating information. A motion for new trial was often inadequate because of time constraints and the lack of the trial record being transcribed at that point. In Texas, a writ of habeas corpus issued in state collateral proceedings ordinarily was essential to gathering the facts necessary to evaluate IATC claims. As a systematic matter, Texas did not afford meaningful review of an IATC claim. Where a state procedural framework, by reason of its design and operation, makes it highly unlikely in a typical case that a defendant will have a meaningful opportunity to raise an IATC claim on direct appeal, a procedural default will not bar a federal habeas court from hearing a substantial IATC claim if, in the initial-review collateral proceeding, there was no counsel or counsel was ineffective.

Fifth Circuit

First D’s presence in the truck (along with second D) where marijuana was found was sufficient to confer PC for his warrantless arrest. United States v. Rodriguez, 702 F.3d 206 (5th Cir. 2012).

        First D’s challenge to the search of the cell phone recovered from his person was foreclosed by United States v. Finley, 477 F.3d 250 (5th Cir. 2007), which held that a search incident to arrest of the contents of a cell phone found on arrestee’s per­son for evidence of the arrestee’s crime was allowable. Sec­ond D’s claim—that dog sniff could not enter into determination of probable cause for warrantless search of vehicle, absent evidence of the training and reliability of the detector dog or its handler—was waived because it was not raised in the motion to suppress and, even if reviewed for plain error, was not plainly erroneous because it was foreclosed by circuit precedent.

Although a sentencing court may not consider the mere fact of a prior arrest without more, the court may consider the conduct underlying the arrest provided the conduct is established by an adequate evidentiary basis with sufficient indicia of reliability; such a basis may be established by the presentence report. United States v. Harris, 702 F.3d 226 (5th Cir. 2012).

        The district court is entitled to rely on the PSR unless the defendant objects to the PSR and presents rebuttal evidence. Here, the district court did not rely on just a bare arrest record but rather relied on the PSR’s unrebutted account of the conduct underlying D’s prior arrests; accordingly, the district court did not commit procedural error in this respect.

In prosecution of three police officers arising from the death of a civilian in the aftermath of Hurricane Katrina, the district court did not abuse its discretion in joining one defendant for trial with his two co-defendants pursuant to Fed. R. Crim. P. 8(b); the court did abuse its discretion in denying that D’s motion to sever under Fed. R. Crim. P. 14(a). United States v. McRae, 702 F.3d 806 (5th Cir. 2012).

        The district court did not abuse its discretion in granting another D a new trial on the basis of newly discovered evidence. The evidence, a police report discovered after trial, supported D’s testimony. Moreover, the district court did not err in concluding that the failure to discover the report earlier was not due to a lack of diligence on the part of defendant. Nor did the district court err in concluding that the report would probably produce an acquittal. Accordingly, the Fifth Circuit affirmed the district court’s order granting D a new trial.

Neither possession of cocaine with intent to distribute nor importation of cocaine is a drug-trafficking offense triggering the five-year period of ineligibility for federal benefits. United States v. Silva-De Hoyos, 702 F.3d 843 (5th Cir. 2012).

        Moreover, because D’s convictions supported only a one-year period of ineligibility, D’s substantial rights were affected. However, under the circumstances of this case, the Fifth Circuit declined to exercise its discretion to correct the error on plain-error review, because there was no evidence of any benefit for which D might be eligible and because D was likely to be incarcerated for most, if not all, of the ineligibility period.

District court committed error that was clear or obvious when it treated D’s prior Florida conviction for theft as generic theft constituting an aggravated felony under 8 U.S.C. § 1101(a)(43)(G) and USSG § 2L1.2(b)(1)(C). United States v. Medina-Torres, 703 F.3d 770 (5th Cir. 2012).

        Although it was plain error for the district court to enhance the sentence on the basis of the theft conviction, the Fifth Circuit could not tell whether D’s substantial rights were affected because there was another conviction that might possibly support the enhancement. The Fifth Circuit vacated the sentence and remanded for resentencing, with instructions that the government would be allowed on remand to try to es­tablish that the enhancement was supported by the other con­viction.

Inmate had sufficiently exhausted his administrative rem­edies and had offered sufficient evidence to es­tab­lish sincerity of religious belief as a matter of law. Mous­sazadeh v. Texas Department of Criminal Justice, 703 F.3d 781 (5th Cir. 2012).

        Where Texas inmate sued the Texas Department of Criminal Justice for its refusal to provide him with kosher meals, and the district court granted summary judgment for TDCJ based on (1) failure to exhaust administrative remedies as required by the Prison Litigation Reform Act, and (2) lack of sin­cerity of religious belief as required under the Religious Land Use and Institutionalized Persons Act, the Fifth Circuit reversed and remanded.

District court did not err in denying drug D’s motion to suppress arising out of traffic stop; the court did not clearly err in finding vehicular/traffic violations (improper lighting and improper lane usage) justifying the stop at the outset. United States v. Andres, 703 F.3d 828 (5th Cir. 2013).

        Furthermore, the scope and duration of the stop were reasonable. Finally, even if the agents’ warrantless use of a GPS de­vice violated the Fourth Amendment, suppression of the evidence would not be appropriate because, under Davis v. United States, 131 S. Ct. 2419 (2011), searches conducted in ob­jectively reasonable reliance on binding appellate precedent are not subject to the exclusionary rule; in December of 2009 (when the GPS tracking occurred) it was objectively reasonable for agents operating within the Fifth Circuit to believe that warrantless GPS tracking was reasonable under United States v. Michael, 645 F.2d 252 (5th Cir. 1981).

Fifth Circuit had jurisdiction to review death-sentenced federal Ds’ claim that the chief judge’s reduction of their expert funding request under the Criminal Justice Act violated due process. United States v. Snarr, 704 F.3d 368 (5th Cir. 2013).

        Unlike In re Marcum, L.L.P., 670 F.3d 636 (5th Cir. 2012), where the Fifth Circuit found it had no jurisdiction to directly review the chief judge’s administrative decision on expert fund­ing, here Ds did not directly appeal the chief judge’s order. Rather, their claim was that as the result of that order, they lacked the funds necessary to present an adequate defense, and therefore they were denied due process. In other words, the appeal in this case related to Ds’ ultimate convictions and sentences, which were appealable final judgments.

District court did not reversibly err in entering an order authorizing the Bureau of Prisons to involuntary medicate D (accused of threatening to kill federal officials) in order to restore him to competency. United States v. Gutierrez, 704 F.3d 442 (5th Cir. 2013).

        The district court’s decision was consistent with the factors that Sell v. United States, 539 U.S. 166 (2003), required to be considered in this decision.

In fraud prosecution, district court erred in submitting a “deliberate ignorance” jury instruction because there was insufficient evidence that D purposefully contrived to avoid learning of the illegality of his conduct; the error was harmless because there was substantial evidence that D had actual knowledge of the illegality of his conduct. United States v. Roussel, 705 F.3d 184 (5th Cir. 2013).

        Secondly, district court clearly erred in finding that more than one bribe occurred, resulting in a two-level enhancement under USSG § 2C1.1(b)(1). District court also clearly erred (by four levels) in its calculation of the fraudulent contract’s expected benefit to D and his co-defendants. Furthermore, these Guideline calculation errors were not harmless, notwithstanding the fact that the district court made a 99-month downward variance to 136 months’ imprisonment, which was within the correct Guideline range; the record did not reflect whether the district court would still have imposed the same sentence even if it had been starting from a range of 121 to 151 months (the correct range), as opposed to starting from the incorrect range of 235 to 293 months. The Fifth Circuit vacated D’s sentence and remanded for resentencing.

Contrary to the decision of the Board of Immigration Appeals, immigrant’s prior Texas conviction for attempted sexual assault did not qualify as an aggravated felony. Rodriguez v. Holder, 705 F.3d 207 (5th Cir. 2013).

        To determine whether immigrant’s prior conviction constituted an aggravated felony for removal purposes, the Fifth Circuit applied the “modified categorical approach.” The approach considered only the statutory definition of the offense of conviction and certain additional documents in the convicting court’s record to determine whether the guilty plea conviction “necessarily” fell under a particular subsection of the statute that meets the aggravated felony criterion. Immigrant’s prior conviction could only be narrowed to one, Tex. Penal Code § 22.011(a)(1). A violation of § 22.011(a)(1) is not categorically a “crime of violence” or an “aggravated felony.” For instance, if the violation was sex between a mental or physical health care provider and a patient, § 22.011(b)(9), or a cleric and a pa­rishioner, § 22.011(b)(10), the offense would not be a “crime of violence” or an “aggravated felony” under 8 U.S.C. § 1101(a)(43). Accordingly, the Fifth Circuit vacated the removal order.

Magistrate judge did not reversibly err when he limited the number of Ds’ relatives who could be present for voir dire. United States v. Cervantes, 706 F.3d 603 (5th Cir. 2013).

        This allowance, combined with the general public’s access to voir dire, adequately protected Ds’ interest in a public trial, satisfying the Sixth Amendment. Given the circumstances (involving both logistical concerns about space and comfort, and concerns about the nature of the case), the magistrate judge had more than one substantial reason justifying a partial closure of voir dire, and the partial closure did not jeopardize Ds’ right to a fair, public trial.

        However, where Ds were possessing a firearm in furtherance of a drug-trafficking crime, in violation of 18 U.S.C. § 924(c), it was plain error for the district court to also apply a two-level Guideline enhancement for possession of a firearm under USSG § 2D1.1(b)(1). Accordingly, the Fifth Circuit vacated Ds’ sentences and remanded for resentencing.

Court of Criminal Appeals

CCA altered the parameters of the doctrine of laches as it applies to bar a long-delayed habeas application. Ex parte Perez, 398 S.W.3d 206 (Tex.Crim.App. 2013).

        D was found guilty of murder, and his conviction was affirmed on appeal in 1992. D sought relief under Tex. Code Crim. Proc. art. 11.07, alleging he was denied the opportunity to pursue discretionary review because counsel failed to notify him of the conviction’s affirmance until after the deadline to petition for discretionary review passed. The State invoked the doctrine of laches.

        CCA’s former approach to laches in the habeas corpus con­text “imposed an unreasonably heavy burden upon the State.” Here, CCA adopted a revised approach consistent with the Texas common-law definition of the laches doctrine. In doing so, CCA expanded the definition of prejudice under the existing laches standard to incorporate all forms of prejudice so that a court may consider the totality of the circumstances in deciding whether to hold an application barred by laches. CCA’s revised approach recognized that the former laches stan­dard was too rigid, and some applicants had been per­mit­ted to seek post-conviction relief despite excessive and un­justified delays that prejudiced the State’s ability to defend long-standing convictions. “Given the nature of habeas corpus relief, it is reasonable to permit a court to consider whether an applicant has slept on his rights and, if he has, how that has affected the State, and whether, in light of the delay, it is fair and just to grant him relief.” In light of CCA’s revised approach, the court remanded to the trial court to give both applicant and the State an opportunity to present additional evidence.

The house sitter had D’s apparent consent—it is clear and manifest to the understanding that she had his as­sent in fact—to enter his bedroom and use his computer. Baird v. State, 398 S.W.3d 220 (Tex.Crim.App. 2013).

        D hired a caretaker to stay at his home and care for his dog while he was on vacation. During her stay, the caretaker used D’s computer in his bedroom and found child pornography. After the trial court denied his motion to suppress, D pled guilty to 10 counts of child pornography. COA and CCA affirmed.

        The evidence supported a finding that D gave the caretaker apparent consent under Tex. Penal Code § 1.07(a)(11) to enter the master bedroom and use the computer. He invited her to help herself to “anything” and “everything,” and the invitation was not limited to the refrigerator and pantry but was repeated during the house tour, which included his master bedroom. Whatever he might have intended, he told her only that he required her to keep the bedroom door closed to keep the dog out. He did not expressly banish her from the bed­room, nor did he forbid her to use his computer. He did not power the computer down or password-protect it, and he admitted that he allowed his roommate to use it regularly.

The State had not established that D’s discharge from the treatment program presented a sufficient basis to proceed to adjudication that was wholly independent of his claim of Fifth Amendment privilege; COA erred to eschew the constitutional issue. Dansby v. State, 398 S.W.3d 233 (Tex.Crim.App. 2013).

        D argued on direct appeal that his deferred adjudication community supervision was revoked unconstitutionally as a penalty for invoking his Fifth Amendment privilege against self-incrimination by refusing to answer questions during a court-imposed sexual history polygraph examination about past sexual assault offenses. COA declined to reach that issue, holding that D’s community supervision had been legitimately revoked on another basis—that he failed to complete the court-ordered sex offender treatment program that the sexual history polygraph was designed to facilitate. CCA addressed D’s contention that he was essentially discharged from the treatment program because he refused to answer incriminating questions during the course of the polygraph. Because the appellate record admitted a strong inference that D’s unwillingness to incriminate himself was the deciding factor in discharging him from the treatment program, COA could not avoid addressing the constitutional issue. The record did not show that even without refusing to answer what he took to be incriminating questions, D would have been discharged from the program. CCA reversed and remanded to COA.

Hospital employee was a qualified technician under Texas Transportation Code, authorized to take D’s blood. Krause v. State, No. PD-0819-12 (Tex.Crim.App. May 8, 2013).

        After D was arrested for DWI, his blood was drawn at a hospital by a hospital employee. CCA affirmed the denial of D’s motion to suppress. The questions in this case were whether, under Tex. Transp. Code § 724.017, the employee was “emer­gency medical services personnel” and, if so, whether that fact rendered her unable to be a “qualified technician” authorized to take blood specimens in DWI cases. CCA held that the employee was not “emergency medical services personnel” and that she was a “qualified technician” within the meaning of the statute. Although the employee’s job title was “emergency medical technician” and she was licensed as an EMT-I, her primary duty at the hospital was to draw blood in non-emergency situations. She was employed by the hospital to draw samples of blood, was qualified to do so, and had an office in the hospital for that purpose. In addition, her office was a sanitary place. COA was mistaken to conclude that the employee was excluded from taking a blood specimen in this case.

The social expectations for occupants of vehicles were unlike co-tenants in residences; people had a lessened expectation of privacy in vehicles as compared to residences. State v. Copeland, 399 S.W.3d 159 (Tex.Crim.App. 2013).

        An officer was observing a house known for illegal-narcotics activity. He saw a vehicle approach the house and saw passenger D get out, leave his sight, and quickly return to the vehicle. After the vehicle left, officer stopped the driver for a traffic violation. The driver gave officer consent to search the vehicle, but D refused. D claimed to be the owner even though she was not listed on the vehicle registration. She also said she was married to the driver. During the search, officer found two pills. D was charged with possession of a dangerous drug. The trial court granted her motion to suppress. COA upheld the order granting D’s motion to suppress. CCA reversed and remanded for COA to determine whether the trial court’s ruling on the motion to suppress should be upheld on the alternative ground asserted in D’s motion.

        Georgia v. Randolph, 547 U.S. 103 (2006), does not apply to vehicles because the social expectations for occupants of vehicles were unlike co-tenants in residences; people had a lessened expectation of privacy in vehicles as compared to res­i­dences. Vehicle searches are controlled by preexisting law. Because the trial court applied Randolph to vehicles, COA erred by upholding the suppression ruling on that basis.

The offense of falsely holding oneself out as a lawyer did not require a jury instruction as to a culpable mental state beyond the intent expressly prescribed in the plain language of the statute. Celis v. State, Nos. PD-1584-11 & 1585-11 (Tex.Crim.App. May 15, 2013).

        CCA addressed D’s three jury-charge complaints. CCA first held that the trial court properly denied a jury instruction as to a culpable mental state beyond the intent expressly prescribed in the plain language of the statute, Texas Penal Code § 38.122. CCA next held that D was properly denied an in­struc­tion on a mistake-of-fact defense under § 8.02(a) because his requested instruction, based on his alleged mistaken belief that he was licensed and in good standing to practice law in Mexico, did not negate the culpability required for the offense, as § 38.122 did not require proof of a culpable mental state as to the licensing or good-standing elements. CCA further held that the court’s instruction on the definition of “foreign le­gal consultant” within the definition of “in good standing” was not an improper comment on the weight of the evidence because the instruction provided a legally correct definition under Tex. R. Admis. Bar XIV.

No egregious harm resulted from the erroneous jury charge. Gelinas v. State, 398 S.W.3d 703 (Tex.Crim.App. 2013).

        COA reversed D’s DWI conviction. CCA reversed and remanded for COA to address D’s remaining points of error.

        CCA declined to apply the reasoning of Hutch v. State, 922 S.W.2d 166 (Tex.Crim.App. 1996), to a jury charge error like that presented. Hutch’s analysis did not attribute the appropriate weight to the various factors in light of the facts. “Hutch was flawed and produces unjust results, and we hereby disavow it. We find the contested jury instruction in the instant case was erroneous, but egregious harm did not result.”

        In erroneous Tex. Code Crim. Proc. art. 38.23 instruction cases, the second Almanza factor should be afforded less weight. That arguments of counsel could be relevant to harm was supported by the fact that the entire third factor of Almanza focused on arguments of counsel. CCA found that the third and fourth factors of Almanza weighing in favor of finding no egregious harm outweighed the first and second factors weighing in favor of finding egregious harm. D was unlikely to have been misled given the fact that common sense, the correct abstract paragraph, and correct jury arguments most likely alerted the jury to the error and allowed them to recognize the mistake and properly apply the law as correctly stated in the preceding sentence.

Trial counsel was not ineffective for failing to assert a mistake-of-fact theory; the record shows that it was an inconsistent, alternative theory, and its inclusion may have lessened the State’s burden of proof. Okonkwo v. State, 398 S.W.3d 689 (Tex.Crim.App. 2013).

        D was convicted for forgery of money. COA reversed, holding that counsel rendered ineffective assistance by failing to request a jury instruction on the defense of mistake of fact. CCA reversed COA.

        COA properly employed an objective standard to evaluate counsel’s performance by basing its decision not only on counsel’s affidavit, but also on the bases that mistake of fact was D’s only defense and that he would have been entitled to an instruction had he requested it. However, under an objective standard, counsel could not be held ineffective for failing to request a mistake-of-fact instruction because the State had to prove that D knew the money was forged as an element of its case. Furthermore, COA erred by determining that counsel was objectively ineffective in light of the record in this case, which shows that a mistake-of-fact theory was inconsistent with a theory that counsel advanced at trial, and its inclusion may have lessened the State’s burden of proof. Therefore COA erred by determining that the trial court abused its discretion by denying D’s motion for new trial.

D’s double-jeopardy protections were violated because the indictments alleged both threatening with a firearm and threatening with a firearm while committing theft. Ex parte Denton, Nos. 399 S.W.3d 540 (Tex.Crim.App. 2013).

        A county court indicted D in two causes for both aggravated robbery and aggravated assault. A jury convicted him of all counts and sentenced him to concurrent terms of 25 years’ imprisonment for each aggravated robbery and 20 years for each aggravated assault. D petitioned for habeas relief, arguing that the convictions for both aggravated robbery and aggravated assault on each complainant violated double jeopardy. CCA granted relief and set aside the aggravated-assault convictions because they were the lesser convictions.

        The indictments alleged both threatening with a firearm and threatening with the firearm while committing theft, offenses based on the same continuous transaction. The counts for both aggravated robbery and aggravated assault assert that D intentionally or knowingly threatened another person with imminent bodily injury and used or exhibited a deadly weapon during the commission of that offense. The counts for aggravated robbery further allege that D committed theft. Thus, as plead, aggravated assault is a lesser-included offense of aggravated robbery because “it is established by proof of the same or less than all the facts required to establish the commission of the offense charged[.]” Tex. Code Crim. Proc. art. 37.09(1). If there is no clear legislative intent to punish the offenses separately, multiple punishments for the criminal act is barred.

CCA inferred that D was aware of the range of punish­ment when he entered his guilty plea despite the ab­sence of an admonishment. Davison v. State, No. PD-1236-12 (Tex.Crim.App. May 22, 2013).

        COA held that the trial court erred in failing to admonish D prior to accepting his guilty plea as required by Tex. Code Crim. Proc. art. 26.13(a) but the error was harmless under Tex. R. App. P. 44.2(b). D petitioned against COA’s harm analysis, arguing that COA failed to examine the entire record with a view to what it may reveal he knew when he entered the guilty plea. CCA affirmed COA.

        D’s failure to exhibit alarm at the punishment phase was a circumstance relevant to COA’s harm analysis. Nor did the record refute the inference that D must have been aware of his susceptibility to the greater sentencing range, despite the trial court’s inaccurate admonishment; even at the time of the plea, D must have been aware that the enhancement paragraphs served a purpose, subjecting him to a greater range of punishment.

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