HELPFUL CASES OCTOBER 2007

    1st Circuit Court of Appeals [None this update]
    2nd Circuit Court of Appeals
    3rd Circuit Court of Appeals
    4th Circuit Court of Appeals [None this update]
    5th Circuit Court of Appeals
    6th Circuit Court of Appeals
    7th Circuit Court of Appeals
    8th Circuit Court of Appeals
    9th Circuit Court of Appeals
    10th Circuit Court of Appeals [None this update]
    11th Circuit Court of Appeals
    D.C. Circuit Court of Appeals
    Supreme Court of Florida
    Illinois Courts of Appeal [None this update]
    New York Court of Appeals
    Texas Criminal Court of Appeals

United States v. Razmilovic (10/17/2007, 2nd Cir., No. 06-4195) 498 F3d 136: Double Jeopardy Clause: the decision of the trial court that there was "manifest necessity" to declare a mistrial was an abuse of discretion; and a statement by counsel in support of a motion for mistrial, quickly reconsidered, does not preclude the defendant from claiming that the Double Jeopardy Clause bars retrial.

U.S. v. Rosa (10/31/2007, 2nd Cir, No. 05-3621) 2007 U.S. App. LEXIS 25362: Sentence vacated under Shepard v. US (2005) 544 US 13, where guilty plea resulting in a predicate state conviction did not necessarily admit a conviction for a crime or act of juvenile delinquency involving the use or carrying of a firearm.

3rd Circuit Court of Appeals

U.S. v. Introcaso (10/25/2007, 3rd Cir., No. 05-4088) 2007 U.S. App. LEXIS 24945: National Firearms Act conviction for possessing an unregistered 19th century firearm (shotgun) reversed because the Firearms Act was ambiguous as to whether it required defendant to register the gun and the rule of lenity applied.

U.S. v. McKee (10/29/2007, 3rd Cir., No. 05-3297, 05-3469, 05-3357) 2007 U.S. App. LEXIS 25349: District court's jury instruction constructively amended the indictment for purposes of convictions on tax evasion charges.

5th Circuit Court of Appeals

Reed v. Quarterman (10/9/2007, 5th Cir., No. 05-70046) 2007 U.S. App. LEXIS 23728: Petitioner was entitled to a COA in death penalty case on claims regarding: 1) a denial of a request for discovery of files regarding contact between the prosecution and an informant; 2) a Penry claim arguing that the former Texas capital sentencing scheme did not permit the sentencing jury to consider fully his mitigating evidence; and 3) a claim that his due process rights violated by a denial of a requested jury instruction on first-degree, non-capital murder as a lesser included offense.

Ruiz v. Quarterman (10/11/2007, 5th Cir., No. 07-70025) 2007 U.S. App. LEXIS 23920: Death penalty case remanded for consideration of petitioner's ineffective assistance claim on the merits as: 1) the district court had jurisdiction to consider the Rule 60(b) motion, free of the jurisdictional constraints of AEDPA upon successive petitions; 2) petitioner's Wiggins claim was properly before the federal district court; and 3) the district court erroneously concluded that the balance of the equities tipped away from petitioner.

Rivera v. Quarterman (10/18/2007, 5th Cir., No. 06-70022) 2007 U.S. App. LEXIS 24437: In a death penalty case, a grant of habeas relief pursuant to an Atkins claim affirmed.

U.S. v. Hollis (10/30/2007, 5th Cir., No. 06-50784) 2007 U.S. App. LEXIS 25410: (1) Insufficient evidence in the record to show that defendant was represented by counsel or validly waived his right to counsel in proceedings leading to a prior conviction on which the sentence under the ACCA was predicated; (2) conviction on the felon in possession count is vacated as multiplicitous.

6th Circuit Court of Appeals

U.S. v. Malone (10/4/2007, 6th Cir., No. 06-2099) 503 F3d 481: A district court's consideration of a defendant's possible state court sentence as part of its sentencing calculus is improper and renders the resulting sentence unreasonable.

Stewart v. Erwin (10/9/2007, 6th Cir., No. 05-4635) 503 F3d 488: Although there is no clearly established federal constitutional right to full disclosure of all information used by a trial judge in determining a defendant's sentence, there is a clearly established federal due process protection against a trial court's reliance on materially false information at sentencing. Evidentiary hearing required where a portion of the materials used in determining the sentence were withheld from federal court review and the limited record suggested a reasonable possibility that at least some of the sentencing information might have been erroneous.

U.S. v. McGrattan (10/10/2007, 6th Cir., No. 06-3043) 2007 U.S. App. LEXIS 23727: Prior Ohio state misdemeanor offense did not categorically qualify as a prior offense under federal internet pornography law, and the government did not provide sufficient documentation of defendant's actual conduct in that offense.

Parker v. Renico (10/17/2007, 6th Cir., No. 06-2419) 2007 U.S. App. LEXIS 24251: Habeas relief properly granted where petitioner demonstrated that the state courts unreasonably applied Jackson v. Virginia (1979) 443 US 307, for purposes of a challenge to the sufficiency of the evidence with regard to the possession element of each crime.

U.S. v. Grubbs (10/17/2007, 6th Cir., No. 04-5403) 2007 U.S. App. LEXIS 24252: Ex-felon in possession of a firearm conviction reversed due to insufficient evidence of possession.

7th Circuit Court of Appeals

Holmes v. Buss (10/30/2007, 7th Cir., No. 04-3549, 06-2905) 2007 U.S. App. LEXIS 25361: Habeas proceeding remanded for evidentiary hearing re: petitioner's mental competence to assist his attorneys in his appeal.

8th Circuit Court of Appeals

U.S. v. Mosley (10/12/2007, 8th Cir., No. 06-3149) 2007 U.S. App. LEXIS 23925: Matter remanded for resentencing by a different judge where the government breached a plea agreement between the parties when it argued at sentencing that defendant failed to accept responsibility because of false statements she made to authorities prior to the plea agreement.

9th Circuit Court of Appeals

Parle v. Runnels (10/10/2007, 9th Cir., No. 06-16780) 2007 U.S. App. LEXIS 23734: Multiple state law errors in the admission and exclusion of evidence accumulated to deprive petitioner of his federal constitutional right to a fair trial.

In Parle v. Runnels (10/10/2007, 9th Cir., No. 06-16780) 2007 U.S. App. LEXIS 23734 the state argued that no USSC case has "clearly established" that cumulative error can violate Due Process. However, the Ninth Circuit holds otherwise:

The United States Supreme Court has "clearly established" that multiple non-constitutional errors violate Due Process if their cumulative effect rendered the trial fundamentally unfair.

In Chambers v. Mississippi (1973) 410 US 284, 289, 290 n. 3, 302-303, the "Supreme Court … clearly established that the combined effect of multiple trial court errors violates due process where it renders the resulting criminal trial fundamentally unfair… even where no single error rises to the level of a constitutional violation or would independently warrant reversal."

The California Supreme Court has long recognized the cumulative error doctrine (see, e.g., People v. Holt (84) 37 C3d 436, 459 and routinely addresses (and rejects on the merits) such claims in its capital opinions. Nationally, however, "the doctrine is inconsistently and rarely applied" in federal habeas cases. (J. Blume & C. Seeds, "Criminal Law: Reliability matters: Reassociating Bagley Materiality, Strickland Prejudice, and Cumulative Harmless Error," 95 J. Crim. L. & Criminology 1153, 1154 (2005).) The reason for this, the authors believe, is that federal judges understand that applying cumulative error analysis would require them to overturn state judgments with greater frequency than they are comfortable doing. (Ibid.)

Practitioners (as well as the CSC) often cite Taylor v. Kentucky (78) 436 US 478, as holding that cumulative error can violate Due Process. Parle, however, held that Taylor was not really a cumulative error case but rather a case with one error – the failure to instruct on the presumption of innocence -- that was prejudicial due to multiple "circumstances" related to the error. (See 448 FSupp.2d at 1163-1164.) This may explain why the Parle opinion relied so heavily on Chambers and buries its one reference to Taylor in a footnote.

Importantly, Parle holds that "multiple trial court errors [can] violate … due process … even where no single error rises to the level of a constitutional violation." (Emphasis added.) This may be the most important statement in the opinion given how hard it has become to demonstrate a constitutional violation. As the Blume article shows, some courts will apply a cumulative error analysis but only if the petitioner can show that all, or at least one, of the errors whose impact s/he seeks to aggregate was constitutional error.

The beauty of Parle/Chambers is that one need not focus on whether a particular error meets the "clearly established" requirement on its own if, in combination with other errors, it violated Due Process under the concept of cumulative error "clearly established" in Chambers.

Under the reasoning of Parle, Chambers "clearly established" that, in the aggregate, multiple "non-constitutional" improprieties can make one overriding Due Process error.

In light of the foregoing, a claim of cumulative error should always be raised as a stand-alone Due Process claim.

In concluding that the cumulative error effect of the errors here violated Due Process, Parle, while phrasing its observations in terms of the effect of multiple errors, relies on factors relevant to other prejudice analyses, including those involving only one error.

First, the court essentially equates "fundamental unfairness" with both the Brecht standard of prejudice and the prejudice standard relied on in Chambers:

Second, the prejudice determination is a relative one. The strength or weakness of the prosecution’s case is critical:

Equally important is the centrality of the issue to which the error pertains:

"As in Chambers [v. Mississippi], the seminal cumulative error case, the errors in [petitioner’s] … trial went to the heart of the defense's case and the only issue before the jury," so the errors in combination were prejudicial.

The closeness of the case, similarly, will turn otherwise harmless evidentiary error into a prejudicial Due Process violation:

"Where a trial court commits an evidentiary error, the error is not necessarily rendered harmless by the fact there was other, cumulative evidence properly admitted" – that is, evidence generally relating to the same issue as the improperly admitted or excluded evidence. "See Krulewitch [v. U.S.] (49) 336 U.S. [440] at 444-45] (holding that, in a close case, erroneously admitted evidence-even if cumulative of other evidence-can ‘tip[ ] the scales’ against the defendant); Hawkins [v. U.S.] (54) 358 U.S. [74] at 80 (concluding that erroneously admitted evidence, ‘though in part cumulative,’ may have ‘tip[ped] the scales against petitioner on the close and vital issue of his [state of mind]’)." In Chambers v. Mississippi, similarly, "the erroneously excluded evidence …was also largely cumulative of other evidence properly before the jury, yet the Supreme Court had no difficulty concluding that the combined effect of the trial errors required reversal."

The Ninth Circuit applies the above-stated principles to reach the following conclusion:

U.S. v. Vidal (10/10/2007, 9th Cir., No. 04-50185) 2007 U.S. App. LEXIS 23739: A prior conviction for a violation of California Vehicle Code section 10851(a), which criminalizes "theft and unlawful driving or taking of a vehicle," does not necessarily qualify as an aggravated felony within the meaning of U.S.S.G. section 2L1.2(b)(1)(C) and 8 U.S.C. section 1101(a)(43)(G), because section 10851(a) extends to accessories after the fact and the generic theft offense only reaches principals and other similar offenders.

U.S. v. Richard (10/12/2007, 9th Cir., No. 06-10377, 06-10380) 2007 U.S. App. LEXIS 23930: District court abused its discretion by permitting the jury to rehear only a portion of a key witness's testimony without taking necessary precautions to ensure the jury did not unduly emphasize the testimony.

U.S. v. Rodriguez-Guzman (10/22/2007, 9th Cir., No. 06-10585) 2007 U.S. App. LEXIS 24651: Although statutory rape qualifies as a per se "crime of violence" under the Sentencing Guidelines, California Penal Code section 261.5(c), which sets the age of consent at eighteen, is overly inclusive, exceeding the common and accepted definition of statutory rape, and so cannot be categorically applied to enhance a sentence under U.S.S.G. section 2L1.2(b)(1)(A)(ii).

U.S. v. Banks (10/25/2007, 9th Cir., No. 05-10053) 2007 U.S. App. LEXIS 24932: A conviction and sentence for violence in aid of a racketeering enterprise (VICAR), use of a firearm in a crime of violence, and possession of a firearm by a convicted felon reversed based on erroneous jury instruction allowing conviction under the VICAR statute if the jury found that any element of defendant’s motivation in assaulting a rival gang member was to maintain his membership in his gang.

U.S. v. Hernandez-Vasquez (10/31/2007, 9th Cir., No. 06-50198) 2007 U.S. App. LEXIS 25422: To pass muster under Sell v. U.S. (2003) 539 US 166, a medication order must identify: 1) the specific medication or range of medications that the treating physicians are permitted to use in their treatment of the defendant; 2) the maximum dosages that may be administered; and 3) the duration of time that involuntary treatment of the defendant may continue before the treating physicians must report back to the court on the defendant's mental condition and progress.

11th Circuit Court of Appeals

U.S. v. Jones (10/22/2007, 11th Cir., No. 06-15203) 2007 U.S. App. LEXIS 24653: Coercive deadlock instructions: instructions given in response to the jury's announcement of deadlock constituted a plainly incorrect statement of law.

U.S. v. Robison (10/24/2007, 11th Cir., No. 05-17019) 2007 U.S. App. LEXIS 24825: Clean Water Act : Convictions for CWAct conspiracy and for substantive violations of the CWA vacated due to erroneous definition of "navigable waters" in the jury instruction per Rapanos v. U.S. (2006) ____ US ____ [165 LEd2d 159; 126 SCt 2208]. Prosecution did not meet its burden of showing error was harmless.

D.C. Circuit Court of Appeals

U.S. v. Powell (10/5/2007, DC, No. 05-3202) 503 F3d 147: Conviction for violating 21 USC 860(a), which enhances a sentence for drug offenses occurring within 1000 feet of a public or private elementary, vocational, or secondary school or a public or private college, junior college, or university, vacated due to lack of evidence.

Supreme Court of Florida

Green v. State of Florida (10/11/2007, No. SC05-2265, SC06-1533) 2007 Fla. LEXIS 1898: IAC at Sentencing Phase of Death Penalty Case: counsel was prejudicially ineffective in failing to investigate the case file in defendant's prior New York case.

State of Florida v. Sigler (10/11/2007, No. SC04-1934) 2007 Fla. LEXIS 1893: LIO Per Order Of Appellate Court: Florida Statutes section 924.34 is unconstitutional to the extent that it can be read to allow the appellate court to direct entry of judgment for a lesser-included offense when all of the elements of the lesser-included offense have not been found by a jury beyond a reasonable doubt.

New York Court of Appeals

People v. Taylor (10/23/2007, No. 123) 2007 N.Y. LEXIS 2916: Coercive Deadlock Instructions: As New York's jury deadlock instruction under CPL 400.27 was held, in People v LaValle (2004) 3 NY3d 88, to violate the State Constitution, an earlier attempt by a trial court to minimize the coercive effect of the flawed jury deadlock instruction in a death penalty case requires vacating defendant's death sentence under the doctrine of stare decisis.

Texas Criminal Court of Appeals

Ex parte Knipp (10/3/2007, No. AP-75,624) 2007 Tex. Crim. App. LEXIS 1265: Double Jeopardy: Habeas petition is granted pursuant to a meritorious double-jeopardy claim.

Williams v. State of Texas (10/3/2007, No. PD-0446-06) 235 SW3d 742: Insufficient Evidence: A conviction for injury to a child after defendant's two children died in an accidental house fire while her boyfriend was babysitting them is reversed as the evidence of a criminally reckless mens rea and causation were legally insufficient to sustain the conviction.

Michael v. State of Texas (10/3/2007, No. PD-1611-05) 235 SW3d 723: Prosecutor’s Vouching For Witness Credibility: Reviewing court used an improper standard in rejecting a claim that the trial court erred by permitting the state to bolster the credibility of its essential witness, although her character for truthfulness had not been attacked.

Ex parte Zapata (10/10/2007, No. AP-75,784) 235 SW3d 794: Withdrawal Of Guilty Plea – Recanting Witnesses: Habeas relief granted because at the time applicant moved to withdraw his plea, he was unable to produce the recantation testimony, through no fault of his own.

Cannon v. State of Texas (10/17/2007, No. PD-1084-05) 2007 Tex. Crim. App. LEXIS 1455: IAC: Abandoning Role As Advocate: Defense counsel's behavior, considered as a whole, constructively denied appellant his Sixth Amendment right to the effective assistance of counsel. Defense counsel, although physically present in the courtroom at all the requisite times, effectively boycotted the trial proceedings and entirely failed to subject the prosecution's case to meaningful adversarial testing. In so doing, he abandoned his role as advocate for the defense and caused the trial to lose its character as a confrontation between adversaries, and prejudice to the defense is legally presumed.

Stewart v. State of Texas (10/31/2007, No. PD-0255-07) 2007 Tex. Crim. App. LEXIS 1475: Tampering With Evidence/Insufficient Evidence: Police officer's conviction for tampering with physical evidence is reversed because the evidence was legally insufficient to show that defendant had the conscious objective or desire to impair the availability of the marijuana as evidence.

Shaw v. State of Texas (10/31/2007, No. PD-0211-06) 2007 Tex. Crim. App. LEXIS 1479: Instruction On "Good Samaritan" Defense: To obtain an instruction on the "Good Samaritan" defense embodied in Section 22.04(k) of the Texas Penal Code, an appellant must show that the record contains evidence sufficient to support a rational finding that she in fact harbored the requisite mental state, but nevertheless engaged in the conduct under emergency circumstances, in good faith, and with reasonable care.