Friday, January 20, 2017

All in the family: Deference to trial strategy trumps IAC claim related to married attorneys’ conflict of interest

Spouses share many things, but there’s some things they shouldn’t—like clients. Or so teaches the sad tale of Ronald Kelly.

When attorney Greg Robey lost at trial representing Kelly, he turned Kelly’s appeal—raising ineffective assistance of counsel—over to his wife and law partner, Margaret. Worse yet, Greg then showed up at oral argument to present the IAC claim against himself! The appeal court, flagging this yowling conflict of interest, refused to adjudicate the IAC claim. It also denied Kelly's appeal.

The same court, however, overturned Kelly's co-defendant’s conviction, concluding that the trial court erred in rejecting his attorney's request for a lesser-included-offense jury instruction.

The Robeys hadn’t raised this now-successful jury instruction issue at trial or as part of their IAC claim on direct appeal. So they tried to jump on the bandwagon, arguing for the first time in a petition for en banc review that Greg was ineffective for failing to raise the issue. But the appeals court wouldn’t entertain the claim at that stage and, moreover, once again dinged the Robeys for the persistent conflict of interest.

At this point, Kelly fired the Robeys, and the Ohio Public Defender stepped in. But the damage was already done. The defender moved to reopen the direct appeal, arguing that the conflict of interest prevented Kelly from raising meritorious appellate claims, including the jury-instruction issue. In denying the motion, the appeals court reasoned that Greg’s decision to forgo a lesser-included-offense instruction for an all-or-nothing approach fell under the umbrella of reasonable trial strategy. Unfortunately for Kelly, he had already sought state post-conviction relief while represented by the Robeys during the pendency of his direct appeal, without raising the jury-instruction issue, leaving this avenue of relief foreclosed.

Kelly then headed to federal court, seeking habeas relief for the ineffective assistance of both his trial and appellate attorneys. No go. The Sixth Circuit, in an opinion from Judge Boggs, reasoned that the trial IAC claim failed because Kelly didn’t raise it on direct appeal, leading to procedural default. Further, the court refused to excuse the default on the basis of appellate IAC: the trial IAC claim would have been meritless, the court reasoned, because in its view Greg’s all-or-nothing defense wasn’t objectively unreasonable, despite the fact that it conflicted with no less than 10 eyewitness accounts

The court acknowledged in conclusion how screwed up Kelly's case was because of "the poor performance of his counsel of direct appeal" but emphasized the deference afforded to trial counsel's strategic decisions. 

Wednesday, January 18, 2017

The long arm of supervised release

It’s only three pages long but packs a ... punchy lesson about “termination” versus “revocation” of supervised release. The Sixth Circuit held today in United States v. Cross that district courts retain jurisdiction over defendants on supervised release even after supervision is revoked—at least for violations predating the revocation.

After serving 5 years for a marijuana offense, Robert Cross used drugs on supervision. In response, the district court revoked supervision and tacked on 8 more months in prison, with 2 more years supervision. Then, two years later, while Cross was still on this extended supervision, the court learned that he had committed a state theft offense before the first revocation hearing. The court gave him an extra day in prison and 5 more years of supervision.

Cross challenged the court’s jurisdiction to revoke the second time, but the Sixth Circuit wasn’t having it. The difference, the court explained, is between revocation and termination: Termination discharges supervision altogether, 18 U.S.C. § 3583(e)(1); revocation merely requires part of the supervision to be served in prison, id. § 3583(e)(3). Cross was only revoked the first time, not terminated, and thus the district court retained jurisdiction to revoke him again. It makes no difference, the Sixth Circuit reasoned, that § 3583(h) says courts may impose a term of supervised release following re-imprisonment. In the court’s view, this statute simply acknowledges the reality that a defendant continues on release after a term of re-imprisonment unless the court “terminates” supervision.

Friday, December 09, 2016

Sixth Circuit Reverses Denial of Motion to Suppress

In United States v. Abernathy, the Sixth Circuit considered the denial of a motion to suppress stemming from the search of a residence. Officers obtained a search warrant after conducting a trash pull outside Mr. Abernathy's home. That trash pull yielded marijuana roaches and T2-laced plastic bags.

The search warrant affidavit included the statement that the occupants of a residence were "currently engaged in illegal activity." At the Franks hearing that followed, the detective affiant admitted he had no information that anyone was selling drugs out of the residence, had no direct evidence of drug trafficking, and had not seen Mr. Abernathy do anything connected to his residence and drug dealing. While the district court struck the statement in the affidavit as misleading, it ultimately upheld the search warrant, finding that a trash pull alone established probable cause.

The Sixth Circuit considered for the first time whether a trash pull, standing alone, can establish probable cause to search a home. Relying on previous decisions that hinted as much in dicta, the Sixth Circuit held the trash pull alone "did not create a fair probability that drugs would be found in Defendant's home." The Sixth Circuit also found the good faith exception did not apply to the search, particularly in light of the Franks violation.As a result, the district court erred in denying Mr. Abernathy's motion to suppress.

Friday, November 25, 2016

To In Propria Persona or not In Propria Persona? Sixth Circuit Affirms Appointment of Counsel for Unruly Defendant

Defense attorneys have their fair share of stories involving difficult clients, and many of us have served as "standby" counsel for defendants who wish to represent themselves (insert the old "fool for a client" adage here).  In United States v. Pryor, however, the Sixth Circuit addressed a less frequent situation: one in which the defendant is so disruptive to the court's proceedings that it not clear, what, if anything he intends to do.

Jermaine Pryor -- who would prefer we call him "Al Gomono Bey" -- (we will just call him Pryor) was indicted for conspiring to distribute heroin between 2012 and 2014.  The indictment stemmed from an investigation law enforcement that involved several intercepted phone calls between other individuals and Prior, who went by the code names "Daffy" and "Taz."

The procedural history of this case is...well...interesting.  Although he never identified himself as such, Pryor apparently adopted many of the tactics employed by the "sovereign citizen" movement, which is an ideology that rejects the United States' jurisdiction over its members.  Pryor repeatedly interrupted the magistrate judge during his initial appearance to object to the jurisdiction of the United States courts over him.  The magistrate judge subsequently appointed standby counsel for Pryor, to which he again objected, stating he was “not a part of your society. . . . I am a moor, and your laws d[o]n’t apply to me.”  When asked whether he was going to hire his own attorney, Pryor responded that he was not going to do so and explained he was "not a minor and no one . . . will be talking for me."  Pryor's actions in the courtroom ultimately prompted the magistrate judge to order the Bureau of Prisons to evaluate Pryor's competency to stand trial.

Unfortunately, Pryor's competency evaluation, and his subsequent competency hearing, did little to improve his relationship with the magistrate judge.  Pryor objected to being in court and indicated he was appearing in propria persona (a fancy term for pro se).  Despite Pryor's statement, the magistrate judge appointed Pryor's standby counsel to represent him, at least during the competency hearing.  After Pryor repeatedly failed to answer the magistrate judge's questions as to whether he wished to represent himself, the judge appointed Pryor's standby counsel to represent him during the duration of the proceedings.  This did not satisfy Pryor, who continued to interrupt the magistrate judge, to which the judge responded by having Pryor removed from the courtroom.  This did not slow down Pryor, however, who continued sending letters to the court objecting to its jurisdiction.  The court ultimately entered an order directing the clerk to automatically reject his letters.

Now before the district court judge, Pryor continued attacking the court's jurisdiction and its decision to appoint counsel to represent him.  Nevertheless, Pryor's case proceeded to trial, during which the jury convicted him of conspiracy to distribute 100 grams or more of heroin.  The district court subsequently sentenced him to 235 months imprisonment.

On appeal, the Sixth Circuit, after briefly addressing Pryor's numerous arguments regarding its jurisdiction, turned its attention to some of his more interesting arguments, including his assertion the district court erroneously denied him his constitutional right to represent himself.  After addressing this and other arguments Pryor raised, it affirmed his conviction.

In addressing Pryor's self-representation argument, the Court acknowledged the difficult balancing act in which courts must engage in determining whether defendants knowingly and voluntarily waive their right to counsel and intelligently assert their right to self-representation at every stage of the proceedings.  The Court concluded, however, that a defendant must give the court an opportunity to make its preliminary inquiry as to whether he or she is knowingly and voluntarily waiving his or her right to counsel.  The Court found that by constantly objecting to the district court's jurisdiction over him, Pryor did not give the magistrate judge an opportunity to engage in this inquiry.  In summary, the Court found that, considering Pryor's actions in the case, the district court did not err in appointing counsel for Pryor during the proceedings and that he was not entitled to a "mulligan."

Tuesday, November 22, 2016

MS Word Magicians Beware: Amendments to the FRAP are Effective on December 1st!

Microsoft wordsmiths beware! The United States Supreme Court recently adopted significant revisions to the Federal Rules of Appellate Procedure that will affect the format of every brief, motion and other document filed with the court.  Specifically, the new rules discard the page limits found in Rules 5, 21, 27, 35, and 40 in favor of word counts for petitions for permission to appeal and answers thereto, petitions for mandamus or other extraordinary writ and answers thereto, motions and responses and replies thereto, and rehearing and en banc filings.  Further, the new rules reduce the word limits for briefs based on the assumption that one page is equivalent to 260 words.  For example, the new rules reduce the word limit for appellate briefs (where no cross-appeal is involved) from 14,000 to 13,000 words.

The new rules also make significant changes to the rules outside of page and word limits.  For example, they eliminate the three day (mail) rule for documents served electronically.  Litigants thus can no longer add three days to their response deadlines for documents served electronically.  Additionally, the new rules add new provisions for filing amicus briefs in connection with requests for panel or en banc rehearings, clarify the rule regarding the timeliness of post-judgment motions, and they clarify inmate filing rules.

The proposed amendments become effective on December 1, 2016.  Every attorney with a federal appellate practice should review the proposed amendments before their effective date.  You can find them here:

Saturday, November 19, 2016

There Is A Crown Victoria Lurking In The Shadows

Police commonly lay in wait for suspects at their homes. Armed with a search warrant for the home, the police wait until the suspect enters the curtilage of the home before revealing themselves and initiating the search. This tactic permits the police to forego obtaining an arrest warrant while increasing the scope of the search warrant to include what the suspect has on his person. Rarely, however, do police permit a suspect to get a block away from the house before springing into action. But on a snowy night in Grand Rapids, this is what happened to Kevin Price.

In United States v. Price, police had staked out Mr. Price’s home in three vehicles (including a Crown Victoria). Price arrived at the home in a truck with a snowmobile trailer in tow. He exited the vehicle and briefly spoke to someone in a nearby idling car. Police interpreted Price’s actions in relation to the person in the idling car as consistent with a drug transaction (the police did not divine whether the transaction involved a felony amount). Price then went to the back of the home, paced for a few moments (not far from the Crown Victoria), then got into a truck parked behind the home and left.

The police sprang into action—arresting Price at gunpoint a block away. They brought Price back to the home and began their search. In the course of the search, the police discovered evidence of two units Price rented at a nearby storage area. Although Price initially refused consent to search the units, he broke down three hours after his arrest and consented to a search (which revealed controlled substances and firearms). An indictment followed.

Price moved to suppress the arrest and excluded the search of the storage units because they were searched based on consent resulting from the prolonged arrest. The Court rejected Price’s arguments because the police had probable cause to support the arrest. The Court relied upon: (1) the information in the search warrant; (2) the police interpretation of Price’s interaction with the idling driver as a drug transaction (coupled with Price’s criminal history), and (3) Price’s flight from the scene—because, although there was no direct evidence that Price knew the police (or the Crown Victoria) were present, Price could have seen the Crown Victoria and Crown Victorias are “easily associated with police even when unmarked.” Hence, his departure was evidence of flight from the scene. The Court of Appeals affirmed.

The decision marks a troubling expansion of the distance the police can go to arrest a suspect incident to the execution of a search warrant—particularly because of the reliance on the search warrant material to support the arrest. Perhaps the decision is best dealt with by limiting it to its facts, thereby holding it as an arrest case. And, maybe most importantly, if you think you may be suspected of wrongdoing and you see an unmarked Crown Victoria, don’t leave—doing so is evidence of flight.

Thursday, November 10, 2016

New guidance/rule on extensions of time to submit briefs

For many years, the rule of thumb on brief-filing extensions was that you were pretty much guaranteed a 30-day extension and a 14-day extension.

I recently was granted a 30-day extension, and noticed the grant was marked "FINAL EXTENSION." I called the case manager to see if there was some mistake.

Apparently about a year ago, the Sixth Circuit decided cases were moving too slowly through the appeal process and told case managers to tighten up on extensions. The first 30-day extension would have the same standard as always, but any extension after that would not be guaranteed and would depend very much on the reasons given for the needed extension.