HELPFUL CASES JANUARY 2009

    United States 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 [None this update]
    6th Circuit Court of Appeals 
    7th Circuit Court of Appeals
    8th Circuit Court of Appeals 
    9th Circuit Court of Appeals [None this update]
    10th Circuit Court of Appeals 
    11th Circuit Court of Appeals 
    D.C. Circuit Court of Appeals
    Supreme Court of Delaware [None this update]
    Supreme Court of Florida 
    New York Court of Appeals [None this update]
    Illinois Supreme Court [None this update]
    Texas Criminal Court of Appeals 

Federal Courts (January 1-31, 2009)

Selected Decisions:

U.S. Supreme Court

Chambers v. U.S.. (1/13/2009, No. 06-11206) ____ US ____ [172 LEd2d 484; 129 SCt 687]: Illinois' crime of "failure to report" for penal confinement is not a "violent felony" for purposes of the Armed Career Criminal Act's (ACCA) 15-year mandatory prison term.

Oregon v. Ice (1/14/2009, No. 07-901) ____ US ____ [172 LEd2d 517; 129 SCt 711]: In the context of cases involving defendants who have been tried and convicted of multiple offenses, a state's practice of constraining judges' discretion by requiring them to find certain facts before imposing consecutive sentences, rather than concurrent sentences, does not violate the Sixth Amendment as construed in Apprendi v. New Jersey (2000) 530 US 466, 490, and Blakely v. Washington (2004) 542 US 296.

Waddington v. Sarausad (1/21/2009, No. 07-772) ____ US ____ [172 LEd2d 532; 129 SCt 823]: 1) Washington courts reasonably concluded that the trial court's instruction to the jury regarding accomplice liability was not ambiguous; and 2) even were it ambiguous, the circuit court erred in finding the instruction so ambiguous as to cause a federal constitutional violation.

Van de Kamp v. Goldstein (1/26/2009, No. 07-854) ____ US ____ [172 LEd 2d 706; 129 SCt 855]: A prosecutor's absolute immunity as to 42 USC 1983 civil rights suits extends to claims that the prosecution failed to disclose impeachment material due to failure to: 1) properly train prosecutors; 2) properly supervise prosecutors; or 3) establish an information system containing potential impeachment material about informants.

U.S. v. Tobin (1/7/2009, 1st Cir. No. 08-1340) 552 F3d 29: 47 USC 223(a)(1)(D)(2000) which criminalizes persistent telephone-ringing, requires a subjective purpose to harass.

U.S. v. Perazza-Mercado (1/21/2009, 1st Cir. No. 07-1511) 553 F3d 65: 1) the district court's imposition of a total ban on home internet use during the fifteen-year supervised release period was an abuse of discretion; and 2) the district court committed plain error by failing to offer any explanation for a total ban on pornography, in the absence of a record containing any evidence regarding appellant's use of pornography, its involvement in the offense at issue, or its relationship to the likelihood of recidivism.

U.S. v. King (1/29/2009, 1st Cir. No. 07-2084) 554 F3d 177: Duplicity: One count of robbery of a credit union vacated as duplicative.

U.S. v. Draper (1/20/2009, 2nd Cir. No. 072301, 072366) 553 F3d 174: Jury was improperly charged on witness retaliation charges.

Drake v. Portuondo (1/23/2009, 2nd Cir. No. 061365) 553 F3d 230: Brady: Denial of habeas petition reversed where prosecutor failed to disclose expert witness's false statements.

U.S. v. Berry (1/6/2009, No. 3rd Cir. 07-1251, 07-1276) 553 F3d 273: A bare arrest record alone does not justify an assumption that a defendant has committed other crimes and it cannot alone justify increasing a sentence.

U.S. v. Roseboro (1/5/2009, 4th Cir. No. 07-4348) 551 F3d 226: Because the relevant South Carolina statute proscribing failure to stop for a blue light allows conviction for both intentional and unintentional conduct, a conviction under that statute does not qualify as a violent felony under the Armed Career Criminal Act.

U.S. v. Bailey (1/20/2009, 6th Cir. No. 06-5576) 553 F3d 940: Appellant opinion amended because it mistakenly relied on evidence that wasn't available to the jury.

U.S. v. Gagnon (1/29/2009, 6th Cir. No. 07-2133) 553 F3d 1021: 18 USC 111 prohibits more conduct than merely the commission of common-law assault.

U.S. v. Walker (1/26/2009, 6th Cir. No. 06-3137 555 F3d 716: Auto theft and temporary auto theft are not violent felonies under the Armed Career Criminal Act.

U.S. v. Osborne (1/5/2009, 7th Cir. No. 08-1176) 551 F3d 718: A state conviction is not necessarily a crime of sexual "abuse" warranting an enhanced penalty under 18 USC 2252. Sexual behavior is "abusive" only if it is similar to one of the crimes denominated as a form of "abuse" elsewhere in Title 18.

U.S. v. Williams (1/9/2009, No. 07-2841) 552 F3d 592: Revocation of drunk driver's license exceeded the district court’s power because it was not limited to federal enclaves.

Sasser v. Norris (1/23/2009, 8th Cir. No. 07-2385) 553 F3d 1121: 1) District court should have granted petitioner's request for an evidentiary hearing on his mental retardation claim since Atkins v. Virginia (2002) 536 US 304 created a new federal claim not in existence at the time of the proceedings in state court; 2) the existence of a similar claim under state law is irrelevant.

U.S. v. Smiley (1/26/2009, 8th Cir. No. 07-3205) 553 F3d 1137: "Fraud upon the court" which is required to vacate in order to resentence the defendant.

U.S. v. Hooks (1/9/2009, 10th Cir. No. 08-7021) 551 F3d 1205: Possession re: vehicles: Even assuming that the defendant's mere presence in a pickup with four other passengers established proximity, the government failed to show that he had knowledge of or dominion or control over a firearm found on the side of a road which could have been discarded by the passengers in the back of the pickup.

Taylor v. Workman (1/30/2009, 10th Cir. No. 07-7030) 554 F3d 879: Lesser Included Offenses (LIO): Instruction on the lesser-included offense of second-degree murder in state court warranted federal habeas relief.

Holladay v. Allen (1/30/2009, 11th Cir. No. 06-16026) 2009 U.S. App. LEXIS 2126: Atkins: District court did not clearly err in finding that petitioner had shown he was mentally retarded under the test utilized by the state courts.

U.S. v. Coleman (1/16/2009, DC Cir. No. 05-3182) 552 F3d 853: Redacting Charging Document: District court plainly erred in reading the unredacted indictment to the jury since it revealed defendant's prior felony convictions for crimes of violence.

Parker v. State of Florida (1/22/2009, Fla No. SC06-2176) 2009 Fla. LEXIS 39: IAC/Death Penalty Trial: Counsel failed to fully investigate and present mitigating evidence regarding appellant's childhood and mental health.

State of Texas v. Gobert (1/28/2009, Tex No. PD-0202-08) 2009 Tex. Crim. App. LEXIS 138: Miranda: Questioning must stop if suspect conditions talking on the presence of counsel and continued interrogation resulting in a confession, violates the suspects’s Fifth Amendment right to the presence of counsel during custodial interrogation.

Rivas v. The State of Texas (1/28/2009, Tex No. PD-1113-07) 2009 Tex. Crim. App. LEXIS 98: Evidence/Hearsay/Bolstering: Questions to the sexual assault nurse examiner regarding minor victim’s declarations during the SANE exam was improper bolstering.