Wednesday, May 26, 2010

Big Rape Shield Victory



Nothing today, but here are yesterday's summaries from our AFPDs.

Rape shield, lessons on variance requests.

In regard to the picture, I couldn't find a free shield, so I used a sword. :)

LEWIS RODNEY GAGNE

State Habeas

Published

http://www.ca6.uscourts.gov/opinions.pdf/10a0151a-06.pdf

This opinion is issued upon re-hearing the Court’s earlier decision granting the defendant’s petition for habeas relief. The panel re-heard the case upon request of the State of Michigan, which was then joined by amici from OH, KY, and TN. The Court reached the same conclusion it had previously reached---the application of Michigan’s rape shield law ON THE FACTS OF THIS CASE violated the Defendant’s due process rights and the issuance of the writ was upheld. There is a vigorous concurrence that directly answers the petitioners’ "sky is falling" rhetoric. There is an equally vigorous dissent.

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MICHAEL D. BAKER

Direct Appeal

Unpublished

http://www.ca6.uscourts.gov/opinions.pdf/10a0315n-06.pdf

In this case, the Circuit Court found that the defendant’s failure to object to the jury instructions challenged on appeal required "plain error" review. The essence of the challenge was that acts related to the conspiracy that took place outside of the statute of limitations period may have been the basis of the jury verdict and therefore the jury should have been instructed that it had to find that the defendant committed the offense in the period within the statute-of-limitations period. The Court found no error, plain or otherwise.

The second appellate issue was the argument that the trial court had failed to recognize its discretion to disagree on policy grounds with the Career Offender guideline. This was a particularly hard sell given that the defendant received a sentence of 144 months, just two years above the mandatory minimum of ten, on a guideline range of 292 months to 365 months. The fact of the substantial variance alone was sufficient to indicate that the trial court knew it had such discretion, but was limited by the mandatory minimum as well.

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JESHKAIF DOMINIQUE BASS

Direct Appeal

Unpublished

http://www.ca6.uscourts.gov/opinions.pdf/10a0316n-06.pdf

The Circuit Court ruled that under recent 6th Circuit precedent Fleeing & Eluding 3rd Degree has been conclusively found to be a crime of violence. It was clear the panel had no intention of revisiting the issue in this case.

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LAMONT CARTER

State Habeas

Unpublished

http://www.ca6.uscourts.gov/opinions.pdf/10a0317n-06.pdf

This state habeas case turns on the factual and procedural history specific to the petitioner’s claim. Having won in the District Court, the petitioner lost in the Circuit Court because, even though subsequent to the prisoner’s case having been heard in the state courts on the Blakely issue the OH courts applied Blakely to OH’s sentencing regime, at the time he presented his claim to the state court, Blakely had been ruled not applicable to OH’s sentencing regime. Therefore appellate counsel was not ineffective in failing to raise Blakely because it was a loser issue at the time.

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RONALD DEATON STATON

Direct Appeal

Unpublished

http://www.ca6.uscourts.gov/opinions.pdf/10a0318n-06.pdf

The defendant’s sentence of 93 months (60 months of which was a 924 (c) mandatory minimum) on a guideline range of 37 to 46 months (that credited the defendant with 3 months he had spent in state custody) was determined to be procedurally and substantively reasonable, particularly in light of the defendant’s request for a low-end guideline sentence and no request for a departure or variance.

A lesson seems to be: don't ask for a low-end guideline sentence if there is any chance for more. Ask for a variance when there is any basis for it.

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