HELPFUL CASES JANUARY 2007

    U.S. Supreme Court
    1st Circuit Court of Appeals
    2nd Circuit Court of Appeals
    3rd Circuit Court of Appeals
    4th Circuit Court of Appeals
    5th Circuit Court of Appeals
    6th Circuit Court of Appeals
    7th Circuit Court of Appeals
    8th Circuit Court of Appeals  [None this update]
    9th Circuit Court of Appeals
    10th Circuit Court of Appeals
    11th Circuit Court of Appeals   
    D.C. Circuit Court of Appeals [None this update] 
    Texas Criminal Court of Appeals

Federal Courts (January 1, 2007-January 31, 2007)

U.S. Supreme Court

Burton v. Stewart (1/9/2007, No. 05-9222) ____ US ____ [166 LEd2d 628; 127 SCt 793]: Denial of a habeas petition challenging the constitutionality of petitioner’s sentence under Apprendi is vacated where petitioner failed to comply with the gate-keeping requirements of 28 USC 2244(b) and thus, the district court was deprived of jurisdiction to hear his claims in the first place. Consequently, the court did not answer the question on which it granted certiorari, specifically, whether the decision in Blakely v. Washington (2004) 542 US 296, announced a new rule and, if so, whether it applies retroactively on collateral review.

Gonzales v. Duenas-Alvarez (1/17/2007, No. 05–1629) ____ US ____ [166 LEd2d 683; 127 SCt 815]: In the context of 8 USC 1101(a)(43)(G), which provides for removal from the United States of an alien convicted of "a theft offense ... for which the term of imprisonment [is] at least one year," the term "theft offense" in the statute includes the crime of "aiding and abetting" a theft offense.

Cunningham v. California (1/22/2007, No. 05-6551) ____ US ____ [2007 U.S. LEXIS 1324]: California’s Determinate Sentencing Law, which permits judges to impose aggravated (upper term) sentences based on their determination of facts not found by the jury or admitted by the defendant, violates the Sixth and Fourteenth Amendments as interpreted in Apprendi v. New Jersey (2000) 530 US 466 and Blakely v. Washington (2004) 542 US 296. Ginsburg J. delivered the opinion of the Court, in which Roberts, Stevens, Scalia, Souter and Thomas joined. Kennedy dissented, Breyer joining. Alito also dissented, and Kennedy and Breyer joined.

U.S. v. Segarra-Rivera (1st Cir. 1/11/2007, No. 05-1582) 2007 U.S. App. LEXIS 542: Evidentiary hearing required where defendant made a sufficient showing of an actual conflict of interest on the part of his attorney.

U.S. v. Giffen (2nd Cir. 1/22/2007 - No. 05-5782) 2006 U.S. App. LEXIS 30367: Challenge to public authority defense denied as premature.

U.S. v. Korey (3rd Cir. 1/4/2007, No. 05-3840) 472 F3d 89: Jury instructions concerning conspiracy contained an impermissible mandatory presumption because they did not require the jury to find a unity of purpose.

U.S. v. Williams (3rd Cir. 1/4/2007, No. 05-4292) 472 F3d 81: Double jeopardy due to prosecutorial misconduct showing that the government had in fact intended to goad the defendant into requesting a mistrial.

U.S. v. Nicholson (4th Cir. 2/2/2007, No. 04-6092) 2007 U.S. App. LEXIS 2308: Defendant’s lawyer had an actual conflict of interest at sentencing.

U.S. v. Lewis (5th Cir. 1/22/2007, No. 04-51183) 2007 U.S. App. LEXIS 1388: Continuing Criminal Enterprises (CCE): Insufficient evidence.

Simmons v. Kapture (6th Cir. 1/26/2007, No. 03-2609) 2007 U.S. App. LEXIS 1704: Petitioner is entitled to a writ of habeas corpus on the ground that Michigan’s refusal to appoint him appellate counsel to challenge his guilty plea was unconstitutional. (See Halbert v. Michigan (2005) 545 US 605 [162 LEd2d 552; 125 S Ct 2582].)

Davis v. Coyle (6th Cir. 1/29/2007, No. 02-3227) 2007 U.S. App. LEXIS 1878: Denial of right to present additional evidence at death penalty sentencing trial per Skipper v. South Carolina (1986) 476 US 1.

U.S. v. Rodomski (7th Cir. 1/9/2007, No. 05-3792) 2007 U.S. App. LEXIS 364: Insufficient evidence of conspiracy where there was no evidentiary basis for a finding of guilt beyond a reasonable doubt in the co-conspirator’s guilty plea and thus the plea could not be evidence in the defendant’s case.

Raygoza v. Hulick (7th Cir. 1/25/2007, No. 05-2340) 2007 U.S. App. LEXIS 1633: IAC: trial counsel ineffective for failure to investigate alibi, failure to call alibi witnesses at trial, and offer telephone records that would corroborate defense.

U.S. v. Jiang (9th Cir. 1/10/2007, No. 05-10671) 472 F3d 1162: Conviction for intentionally making a materially false statement to a federal agent is reversed due to insufficient evidentiary basis upon which to conclude beyond a reasonable doubt that he intentionally made a materially false statement.

U.S. v. Ressam (9th Cir. 1/16/2007, No. 05-30422, 05-30441) 2007 U.S. App. LEXIS 867: Carrying an explosive during the commission of a felony requires a relationship between the underlying crime and the act of carrying an explosive; omission of this element was reversible error.

Benitez v. Garcia (9th Cir. 1/22/2007, No. 04-56231) 2007 U.S. App. LEXIS 1338: State court’s decision not to enforce Venezuela’s expectation, that upon extradition defendant would not be sentenced to a potential life sentence, was objectively unreasonable.

U.S. v. Arnt (9th Cir. 1/25/2007, No. 05-50124, 05-50292) 2007 U.S. App. LEXIS 1640: Reversible error to refuse involuntary manslaughter instruction as lesser included (LIO) of voluntary manslaughter.

Lopez v. Gonzales (12/5/2006) ____US ____ [166 LEd2d 462 ; 127 SCt 625]: ". . . [A] a state offense constitutes a ‘felony punishable under the Controlled Substances Act’ only if it proscribes conduct punishable as a felony under that federal law." (See also U.S. v. Martinez-Macias (10th Cir. 1/3/2007, No. 05-3243) 472 F3d 1216.)

Walck v. Edmondson (10th Cir. 1/4/2007, No. 05-6273) 472 F3d 1227: Double Jeopardy: witness’s absence did not give rise to manifest necessity for the mistrial.

U.S. v. Hall (10th Cir. 1/23/2007, No. 05-1205, 05-1251) 2007 U.S. App. LEXIS 1456: Insufficient evidence of possession and distribution of crack-cocaine.

U.S. v. Sinks (10th Cir. 1/23/2007, No. 05-2170) 2007 U.S. App. LEXIS 1406: Appellants challenging their indictments for failure to charge an offense do not waive their claims by failing to object before trial, but such appellants receive only plain error review when they raise the argument for the first time on appeal.

Spottsville v. Terry (11th Cir. 2/1/2007, No. 05-12656) 2007 U.S. App. LEXIS 2144:Dismissal of habeas petition as untimely is reversed where petitioner is entitled to equitable tolling for having been misled by the written order of the court that denied his state petition.

Ex parte Lewis (1/10/2007, No. PD-0577-05) 2007 Tex. Crim. App. LEXIS 33: Under Oregon v. Kennedy (1982) 456 US 667, the Double Jeopardy bars retrial after a defendant successfully moves for mistrial only when it is shown that the prosecutor engaged in conduct that was intended to provoke the defendant into moving for a mistrial. (See Ex parte Lewis 2007 Tex. Crim. App. LEXIS 33 [overruling Bauder v. State (Tex. Crim. App. 1996) 921 SW2d 696, 699.)

Stuhler v. State of Texas (1/24/2007, No. PD-1723-05) 2007 Tex. Crim. App. LEXIS 62: Injury to child conviction reversed because (1) child’s constipation is not "serious bodily injury" and (2) disjunctive application paragraph violated appellant’s right to a unanimous jury verdict.

Fletcher v. State of Texas (1/31/2007, No. PD-1809-05, PD-1810-05) 2007 Tex. Crim. App. LEXIS 97: Judicial notice that enhancement conviction was final relieve state of its burden of proving finality of the conviction.