Friday, December 19, 2008

Void for Vagueness Doctrine

Today, in U.S. v. Davis, the Sixth Circuit overturned a Michigan Statute prohibiting dangling objects from a rearview mirror that "obstruct the vision of the driver of the vehicle." A panel, with Judge Martin writing the opinion and citing Kolendar v. Lawson, 461 US 352 (1983), found the language of this statute was void for vagueness because it allowed for the "standardless sweep [that] allows policemen, prosecutors, and juries to pursue their personal predilections." Martin went on to observe that the void for vagueness doctrine is even more important now because:

the rule of law concerns underlying the vagueness doctrine are even stronger in
the Fourth Amendment context after the Supreme Court's decision in Whren v.
United States, 417 US 806 (1996), which did away with pretext analysis under the
Fourth Amendment. If courts cannot review the motives of law enforcement
officers after the fact, it is crucial that they review the breadth of discretionary
authority police receive from legislatures at the outset. The alternative is a broad
abdication of the judicial duty to enforce the Fourth Amendment's prohibition on
unreasonable searches and seizures at a time when this duty is more important
than ever.

Davis, at *7.

Unfortunately for Mr. Davis, the void for vagueness doctrine rarely helps those challenging the statute first. The Sixth went on to find that "the good faith exception to the Exclusionary Rule applies to searches conducted in good faith reliance on a presumptively valid statute." citing United States v. Krull, 480 US 340 (1987) and Michigan v. De Fillippo, 443 U.S. 31 (1979).

I admit that our office does not challenge statutes as void for vagueness as often as we should. Given Martin's opinion, this doctrine seems like rich ground to challenge stops premised upon, usually, overbroad city ordinances. It might not result in suppression against your client, but challenging statutes under this doctrine would force cities and states to start drawing their criminal laws more narrowly and restricting the police discretion on the street.

NOTE: On New Year's Eve, the Sixth Circuit issued a one sentence order withdrawing the opinion in Davis. From a review of the Sixth Circuit website it appears that the State of Michigan has filed a Motion to Intervene under 28 USC S 2403, and FRAP 44, asking the court for permission to argue for the constitutionality of the law in question. I personally will admit that I was not familiar with FRAP 44 that requires an attorney who is challenging the constitutionality of a statute on appeal to alert the court clerk in writing that he is challenging the law, in order to give the clerk opportunity to alert the State in question of the challenge.

Thursday, December 18, 2008

Boggs: Not ineffective to investigate childhood abuse because the jury would've hung 'em anyways

I do not claim to be an expert in habeas law (although Sumnter's presentation this fall in Nashville definitely taught me a lot more than I knew before), but the decision today in West v. Bell seems to fly in the face of logic. Because this is a 39 page opinion (in the Sixth's new, easier to read format) in a death penalty case, I'm just going to write a quick note and let you explore further if it interests you. The defendant was charged with murder. In the majority, Boggs and Norris found that it was not ineffective assistance of counsel for defense attorneys to fail to investigate allegations of early childhood abuse for presentation in the mitigation phase, even though a) the defendant's sister had informed them of the abuse, b) the defendant had been born in a mental institution, and c) the defendant asserted that he had no childhood memories before the age of 10.

In a well reasoned dissent (although she concurs in the majorities findings regarding conviction related evidence), Judge Moore disputes the legal analysis employed by the majority, stating that it failed to consider the ineffective assistance claim in light of Wiggins v. State, 539 U.S. 510 (2003) and Rompilla v. Beard, 545 U.S. 374 (2005). The essence of her dissent is that "West's counsel ignored these key pieces of evidence that would have led a reasonable attorney to investigate further. Thus I conclude that West's counsel was deficient."

Apparently under Boggs and Norris' view, while another attorney may have investigated further, without a showing that the defendant was prejudiced by this failure to investigate, the defendant is not eligible for relief. While the odds are against it, I wish that this opinion would join the growing list of other Bell cases before the Supremes.

Tuesday, December 16, 2008

The Right to Allocution

In United States v. Haygood, Case No. 07-1771, decided December 15, 2008, the Sixth Circuit affirmed a district court's denial of a defendant's Motion to Withdraw Guilty Plea, but found that the district court had violated the defendant's right to allocution at sentencing.

As to the Motion to Withdraw Plea, the defendant argued at district court that "the charges should not have been brought because there was a deficient original warrant that was the basis of the execution that gave rise to the evidence in this particular case." However, the Sixth Circuit found that the district court did not abuse its discretion in denying Mr. Haygood's Motion to Withdraw his plea because his plea did not come until the close of the prosecution's case-in-chief at trial. Because he failed to make any motion to suppress prior to trial, any objection to his arrest or search had been waived by the time he had entered his plea.

More interestingly, the Sixth Circuit did find that the district court violated Fed.R.Crim.P. 32(i)(4)(A)(ii), the defendant's right to allocution at sentencing. The district court judge in Mr. Haygood's case reminded the defendant that he was under oath and regarding his 5th Amendment right to remain silent prior to answering the judge's questions. The defendant elected t0 exercise his 5th Amendment right, and not answer any questions. The Sixth Circuit found that the court to satisfy Rule 32, requiring the court to "permit the defendant to speak or present any information to mitigate the sentence." The Sixth found that "we are unaware of any case that excuses the sentencing judge from providing an allocution opportunity because the judge instead advised the defendant about his or her Fifth Amendment right to remain silent." Noting that the district court sentenced the defendant to only 6 months above the Section 924(c) mandatory minimum on the other charges in his indictment, the Sixth also stated that they had their "doubts that Haygood could have said anything to inspire the court to be even more generous in sentencing him." Nonetheless, the Sixth reiterated that in cases regarding a defendant's right to allocution, "prejudice is effectively presumed when allocution is overlooked because of the 'difficulty in establishing that the allocution error affected the outcome of the district court proceedings.'" Therefore, the Sixth Circuit remanded the case for resentencing.

Wednesday, December 10, 2008

Early Christmas Present in South Florida—Great Opinion Finding SORNA Unconstitutional

While this case is an out-of-circuit, district court case, the opinion is so good I wanted to note it here for those dealing with SORNA issues. The case is United States v. Edward Myers, No. 08–60064–CR–Zloch (S.D. Fla. Dec. 9, 2008). Judge William Zloch’s Final Order of Dismissal is 82 pages of thorough Commerce Clause analysis. In its conclusion, the court found that "Section 16913 [42 U.S.C. § 16913] transgresses entirely the limits set on Congress by the Commerce Clause. It cannot be defended except by adulteration of the text of the Constitution and controlling caselaw." The court goes on, "Section 2250 [18 U.S.C. § 2250] also exceeds that grant of power made to Congress under the Commerce Clause." The court delves into the Commerce Clause jurisprudence, analyzing the evolution of the case law and application of Lopez, Morrison, Raich, and Scarborough to SORNA. I cannot do the analysis justice here, in this limited space, but here are some highlights:

1) "Nothing links the registration of sex offenders with interstate commerce."
2) Section 16913 does not regulate any activity—rather, it regulates a status, that of being a sex offender.
3) Section 2250 does not criminalize travel for an unlawful purpose, nor does it criminalize failing to register during travel. Jurisdictional element of "interstate travel" is indefinite, requiring only that the person travels/has traveled in interstate commerce at some point. No purpose attached to travel and travel is divorced from the failure to register.
4) Section 2250 is not aimed at travel at all.
5) In dicta, the court does classify Section 2250 as "simply an administrative regulation of persons who are supposed to register under § 16913" and cites Smith v. Doe, which is not the most helpful approach for an Ex Post Facto challenge. This characterization of the SORNA and citation to Smith v. Doe is not a real strike against the opinion though, as many defenders are doing an excellent job meeting these challenges already.
6) The court goes so far as to suggest that Scarborough and the "minimal nexus test" have been called into question by United States v. Jones, 529 U.S. 848 (2000).

The court emphasizes that Congress "has no power to regulate a person simply because at some earlier time he has traveled in interstate commerce." The opinion is worth a read if you have a SORNA and/or Commerce Clause issue.

Tuesday, December 09, 2008

Application of Career Offender Guideline Senseless and Adds Nothing to Goals of Deterrence and Rehabilitation

This sentiment, however, was not shared by the majority of the panel.

In United States v. Smith, No. 07–5377 (6th Cir. Dec. 2, 2008), the panel of Chief Judge Boggs and Circuit Judges Merritt (pictured) and Griffin considered two issues: 1) denial of a motion to suppress evidence, and 2) reasonableness of a sentence based on application of the career-offender guideline. The panel affirmed the district court’s denial of the motion and the 240-month sentence.

Facts: Because of the cooperation of two confidential sources, police made a pretextual traffic stop of Mr. Smith. After stop, police officer had enough information to establish probable cause to arrest Mr. Smith.

Officer transported Mr. Smith to police post. Warrant for search of Mr. Smith’s person and the vehicle was issued. 34 grams of crack were found on Mr. Smith’s person.

Mr. Smith had three prior sentences—all three had been imposed on the same day, but one of the underlying offenses was separated from the other two by an intervening arrest.

Procedural History: Mr. Smith was indicted. Motion to suppress evidence denied. Mr. Smith pleaded guilty. Court sentenced Mr. Smith to 240 months (career offender—range of 292 to 365 months).

Major Points in Majority Opinion:
District court found search-warrant affidavit did not establish probable cause, but Leon good-faith exception saved the evidence from suppression. Also found that officers had probable cause to arrest Smith and could search him incident to arrest.
2) Majority held that there was probable cause to arrest Smith, that the officers did arrest Smith when they handcuffed him and took him to the post, and that the search was lawful, as it was incident to the arrest. Did not get to Leon. Search incident to arrest need not take place at site of arrest. Substantial time may elapse between arrest and search.
3) Fact that officers made effort to get warrant does not impact lawfulness of search. The fact of the lawful arrest validates the search.
4) Sentencing—prior sentences imposed on the same day are separate and unrelated if the offenses underlying the sentences were separated by an intervening arrest.

Interesting Dissent by Judge Merritt:
1) Current version of Guidelines (not those in force at time of offense or sentencing) should apply.
2) Current Section 4A1.2(a)—last sentence of this section says to count any prior sentence covered by (A) or (B) as a single sentence. Clause B addresses sentences imposed on the same day. So, the sentences should be counted as a single sentence. (Ignores the intervening-arrest language. Sees contradiction in language that creates ambiguity, so Rule of Lenity requires Mr. Smith to get the benefit of the doubt.)
3) "[N]o sentencing principle, purpose or goal of punishment is given for this ultra-severe sentence." The "sentence senselessly adds 10 more years of costs to the federal taxpayer and adds nothing to the goals of deterrence and rehabilitation."

Tuesday, December 02, 2008

Violation of 18 U.S.C. § 3553(c) constitutes plain error

In United States v. Blackie, Case No. 07-2002, a panel majority in the Sixth Circuit held a district court’s failure to comply with 18 U.S.C. § 3553(c)(2) constitutes plain error. (Section 3553(c)(2) requires district courts to give specific reasons for imposing a sentence that falls outside the Guidelines range).

There, defendant Blackie had pled guilty to possessing 22 images of child pornography. The PSR recommended an adjusted offense level of 25 and a criminal history category of I. The district court rejected the PSR’s proposal to enhance Blackie’s sentence for possession of masochistic materials (as the vast majority of the images were not masochistic) and also rejected the proposed enhancement for the number of images (as 22 images is not comparable to other cases where thousands of images are involved). With the district court’s revisions, Blackie’s adjusted offense level was 20, which corresponded to an incarceration term of 33 to 41 months. However, after consideration of the 18 U.S.C. § 3553(a) factors, the district court sentenced Blackie to 42 months of incarceration. The district court did not acknowledge whether the sentence imposed was in excess of the Guidelines range, did not identify the final offense level, and did not clarify whether it had rejected the specific enhancements or simply reduced their numerical levels.

The exact nature of the district court’s sentencing determination was not known until it issued its written judgment entry and indicated Blackie’s sentence was "above the advisory guideline range." The judgment entry also indicated the masochistic materials enhancement was reduced from four levels to one level, and the two-level enhancement for the number of images was rejected entirely. The judgment entry did not indicate the district court’s reasons for sentencing outside the Guidelines range and left blank the section of the judgment entry designated for setting out facts justifying the sentence.

The panel majority held the district court plainly erred when it did not refer to the applicable Guidelines range and failed to provide its specific reasons for an upward departure or variance at the time of sentencing or in the written judgment entry. In doing so, the panel majority joined the Sixth Circuit with the Second, Tenth, and District of Columbia Circuits on this issue. The majority added that, treating a violation of 18 U.S.C. § 3553(c) as a plain error will help maintain its requirements as mandatory and not merely some formality that can be ignored without consequence.

Judge Sutton notes in his partial concurrence that there is a split in the federal circuit courts on the issue of whether a violation of 18 U.S.C. § 3553(c) constitutes plain error.

The Fifth and Sixth Amendments Live to Fight Another Day

In Thompkins v. Berghuis, Case No. 06-2435, the Sixth Circuit granted habeas relief due to violations of defendant Thompkins’ rights under the Fifth and Sixth Amendments. At the state trial level, Thompkins moved to suppress statements he made during his post-arrest interrogation. The interrogating officer testified he questioned Thompkins for approximately three hours and that he read Thompkins his Miranda rights. Thompkins was alleged to have orally confirmed his understanding of his Miranda rights but refused to sign the form acknowledging those rights. The interrogating officer admitted that, during the first two hours and forty-five minutes of the interrogation, Thompkins consistently exercised his right to remain silent, but claimed he understood Thompkins’ conduct in making eye contact, making a nod of his head, looking up, and sporadically stating "yeah," "no," and "I don’t know" as engaging in limited conversation.

The panel found the state court’s determination that Thompkins’ participation during the interrogation demonstrated voluntary waiver of his right to remain silent was objectively unreasonable. The panel also found the state court’s determination unreasonably applied federal law because the complete lack of context regarding Thomkins’ alleged head nod, sporadic speech, and eye contact did not permit a finding of waiver. The panel further found there was no implied waiver because there was no evidence of a two-way conversation between Thomkins’ and the interrogating officer. The panel concluded Thompkins’ only message to the interrogating officer was that he did not wish to waive his right to remain silent.

The panel also concluded Thomkins’ was also entitled to relief on his ineffective-assistance-of-counsel claim. At trial, the prosecution introduced the testimony of a separately tried co-defendant who was acquitted of the shooting charges at issue in Thompkins’ case but convicted of weapons-related charges. Thomkins’ trial counsel did not request a jury instruction that informed the jury it could use the evidence of the co-defendant’s acquittal only to assess the co-defendant’s credibility. The panel held Thomkins’ trial counsel was ineffective for failing to request a limiting instruction. The panel also held Thompkins was prejudiced by his counsel’s failure as the "central strategy at trial involved pinning the blame on [the co-defendant]." Because the jury heard evidence, from "multiple witnesses," that the co-defendant was acquitted, evidence of the co-defendant’s acquittal likely exerted a powerful influence on the jury to convict Thompkins.

In its holding, the panel was careful to correct the district court’s application of Strickland. The panel made clear the prejudice component of Strickland should not have been tied to the underlying purpose or the intent of the prosecutor in introducing the evidence. Rather, the prejudice component is tied to error’s effect on the outcome.

Flexibility of the (2007?) Marijuana Equivalency Table

In United States v. Brown, Case No. 07-5465, the Sixth Circuit amended its prior opinion after the government moved for rehearing. Defendant Brown had pled guilty to possessing both crack and powder cocaine. In the original opinion, the panel remanded Brown for resentencing to allow the district court to resentence Brown with the benefit of the November 1, 2007 Amendments to the Sentencing Guidelines regarding crack cocaine calculations.

The government petitioned for rehearing and argued remand was unnecessary because remand would not lower Brown’s sentencing range. In response, the Sixth Circuit issued an amended opinion, addressing the process by which offenses involving crack cocaine and another drug require conversion to marijuana to calculate the offense level. The panel found the conversion table included in the 2007 Amendments generally provides the intended two-level decrease in multiple drug situations, but, sometimes, inexplicably results in a greater offense level, even in cases involving inconsequential amounts of a second drug.

In Brown’s case, under the 2007 Amendments, his offense level for possessing 15.2 grams would have been 24. However, when crack cocaine is converted to marijuana under the equivalency table accompanying the 2007 Amendments, Brown’s resulting offense level would have been 26 – exactly what he would have received under the prior guidelines – even before adding the converted amount of the powder cocaine. This result would have denied Brown the benefit of the 2007 Amendments, and struck the panel as particularly arbitrary in light of the small amount of powder cocaine he possessed (which of course triggered the conversion in the first place) and inconsistent with both the substance and the policy of the 2007 Amendments.

The panel ultimately held "the marijuana equivalency table used in determining the offense level for crimes involving crack and another drug are not controlling for purposes of 18 U.S.C. § 3582(c)." The panel also noted the 2007 Amendments create fact intensive anomalies that are best considered on an individualized basis by the sentencing court.

Effective assistance of counsel? Really?

In Hawkins v. Coyle, Case Nos. 05-4032/4049, the Sixth Circuit held petitioner Hawkins, who was sentenced to death, was not prejudiced by his trial counsel’s failure to conduct any mitigation investigation on Hawkins’ behalf. Hawkins had been convicted of committing four counts of aggravated murder, each of which carried two death penalty specifications, and two counts of aggravated robbery with a firearm. The jury recommended a death sentence on each of the aggravated murder counts, and the trial court sentenced Hawkins to death.

In his habeas petition, Hawkins argued his trial counsel was ineffective for failing to conduct any investigation for mitigation purposes, choosing instead to rely on a theory of residual doubt. The panel recognized "a complete failure to make an independent investigation of mitigating evidence will often not be reasonable." However, applying what it termed "a careful reading" of Wiggins v. Smith, 539 U.S. 510, 521-22 (2003), the panel believed trial counsel’s failure to investigate mitigation might not necessarily be deficient "so long as counsel’s decision not to investigate is reasonable under the circumstance."

In determining whether Hawkins’ circumstance excused trial counsel’s failure to investigate mitigation, the panel reviewed several Sixth Circuit cases in which it was found that trial counsel’s failure to investigate mitigating evidence prejudiced a capital defendant, as is required to succeed in an ineffective of assistance of counsel claim under Strickland v. Washington, 466 U.S. 668 (1984). The panel then concluded prejudice is not easily found when the petitioner was not himself a victim of abuse and did not suffer from mental disorders or difficulties.

In Hawkins’ evidentiary habeas hearing, Hawkins demonstrated, via affidavit, that his father was an alcoholic, his parents had divorced, his father physically assaulted his mother on one occasion, his sister died at the age of three, and he appeared to be depressed and tried at least twice to commit suicide at a young age. Noting the suicide attempts made this a "closer case," the panel ultimately held the affidavits did not demonstrate the prejudice needed under Strickland and denied habeas relief.

* * *

In Richards v. United States, Case No. 05-2135, the Sixth Circuit reviewed petitioner Richards’ claim that his trial counsel was ineffective for failing to file a direct criminal appeal on Richards’ behalf and, alternatively, for failing to consult Richards about filing an appeal. Richards’ trial counsel denied discussing an appeal with Richards but admitted he was unaware of the 10-day time limit to file a direct criminal appeal, stating "I don’t do federal appeals . . . .there’s no reason for me to be cognizant of those appeal rights."

The panel found the district court was not clearly erroneous in choosing to credit trial counsel over Richards on the issue of whether Richards specifically asked trial counsel to file an appeal on Richards’ behalf. The panel also found trial counsel’s failure to consult with Richards was not objectively unreasonable conduct as there were no non-frivolous grounds for appeal in the panel’s opinion as Richards received the sentence he bargained for in his plea agreement. For the same reasons, the panel found Richards suffered no prejudice as a result of trial counsel’s failure to file an appeal on his behalf and denied habeas relief.