Thursday, February 24, 2011


The Cincinnati Enquirer recently ran an article (link attached) in which the Sixth Circuit's track record in the United States Supreme Court (0-15 since 2008) was discussed.  Of interesting note was the fact that Judge Merritt agreed to be interviewed for the article.  Merritt indicated that just because the Supreme Court reverses the Sixth, it doesn't mean that the Supreme Court is always right.  Merritt stated "The Supreme Court is only final because it is final. It's not final because it has an excessive degree of wisdom over everyone else in society. Just because the 6th Circuit gets reversed, it doesn't mean the 6th Circuit has lost its mind."

Here's hoping we reverse that trend.  The Supreme Court just heard this week the Sixth Circuit case of United States v. Tinklenberg.  At stake is a statutory Speedy Trial Act claim - do all motions, however mundane, automatically stop the ST Clock?  The Court also heard argument, and seemed interested in, an alternative argument of whether the Act (at least as to one section) counted by calendar days or business days.  Let's hope 2011 is the year we put one (or more) in the win column!

Tuesday, February 15, 2011

Where is the AEDPA line? -- Wherever they want it to be

Tibbets v. Bradshaw, a published decision issued today (available here), is perfectly emblematic of the state of habeas death penalty jurisprudence in the Sixth Circuit. There are two sides, they disagree on the outcome, and they do not even seem to be applying the same law.

Tibbets applied for a writ of habeas corpus from Ohio death row arguing that his trial counsel botched the sentencing hearing by failing to put on powerful evidence of Tibbets' miserable, abuse-filled childhood and substance abuse. Judge Moore found this argument compelling and dissented.

The majority focused on the one-two punch of the Strickland and AEDPA standards: "Even if we were to conclude that counsel's performance fell below an objective standard of reasonableness, and that a reasonable probability exists that, but for that failure, the result of the proceeding would have been different, we must still ask whether the state court's conclusion to the contrary was 'objectively unreasonable.'" With that standard as the starting point, Tibbets was fortunate to get seven more pages of attention, even if one of them was devoted to detailing the brutality of his crime.

In sum, the majority cited AEDPA and washed its hands of the case. The dissent effectively sidestepped AEDPA and dirtied its hands with Ohio's mess. AEDPA continues to be a most fungible statute, the application of which is always subordinate to a judge's other inclinations.

Monday, February 14, 2011

Convicted on her statements alone -- How much corroboration is enough?

How much evidence must the prosecution introduce to corroborate a defendant's out of court confession? Not much, according to the Sixth Circuit in US v. Ramirez, a published decision issued today (available here).

The defendant, who worked as the quality assurance manager at a cheese cutting and wrapping company, was convicted on a number of counts for participating in a scheme to hire illegal aliens. During the police investigation, the defendant had made self-incriminating statements as to her involvement. The main issue on appeal was whether the government had introduced enough evidence to corroborate those statements such that the convictions did not run afoul of the rule that a defendant cannot be convicted based solely on her uncorroborated statements or confessions. Smith v. United States, 348 U.S. 147, 153-54 (1954).

What is most interesting about this case is not the outcome -- they affirmed the convictions unanimously -- but rather that the Court actually took the time to engage with Smith in a meaningful way. In the lengthy, published opinion, the panel of Martin, McKeague, and Ludington (E.D. Mich.), addressed the total evidence for each count. That fake documents existed, that the defendant admitted in court that she knew some of documents were "poor fakes," and that she lived with one of the hired illegal aliens all provided sufficient corroboration for purposes of appellate review.

While Smith may not have a lot of life left in the Sixth Circuit, the panel's willingness to get its hands dirty demonstrates that Smith is not dead yet.

Friday, February 11, 2011

No connection between gun and drugs found in car

It is rare for the Sixth Circuit to find no sufficient connection between a firearm and drugs when both are in the same vehicle. The split-decision in US v. McKenzie (unpublished), available here, provides some light for the often-raised challenge to enhancements under U.S.S.G. § 2K2.1(b)(6) – particularly where the small amount of drugs is clearly for personal use.

A loaded firearm and 1.1 grams of marijuana (worth approximately $2-$15) were found in defendant’s car. The firearm was hidden between the driver’s seat and the center console, the marijuana was on the arm rest of the driver-side door. The defendant had been shot at earlier in the day and claimed the gun was for self-protection. The Sixth Circuit agreed the gun was for self-protection and unrelated to the small amount of marijuana possessed for personal use only. The mere proximity of the gun to the drugs was not enough to establish a sufficient connection under the guidelines.

Circuit Judge McKeague dissented, noting the ample prior cases applying the guideline for simultaneous possession of a firearm and small amounts of drugs.

Wednesday, February 09, 2011

Are Affidavits Enough? - Actual Innocence & Equitable Tolling

Evidence of actual innocence as a gateway to equitable tolling of a habeas petition is discussed in the unpublished opinion, Turner v. Romanowski, No. 07-2352 (available here). Petitioner sought equitable tolling of a time-barred petition through an actual innocence claim, pursuant to Schlup v. Delo, 513 U.S. 298 (1995), submitting a number of affidavits from friends, witnesses, and co-defendants. Relying on the district court’s merit review of the actual innocence claim, the Sixth Circuit found the affidavits contained “insubstantial factual allegations.” The opinion sets forth an in-depth analysis of the affidavits presented in support of actual innocence.

The Sixth Circuit affirmed the denial of the § 2254 habeas petition, but on alternative grounds than the district court. Below, the district court had dismissed the habeas petition on its merits, declining to rule on the State’s motion to dismiss the petition as time-barred. The district court did not hold an evidentiary hearing – either on procedural default or the substantive claims. The Sixth Circuit found the petition time-barred and that Turner’s actual innocence claim is not sufficient to warrant equitable tolling. The opinion affirms the district court’s decision not to hold an evidentiary hearing regarding procedural default, and the petition is dismissed.

Monday, February 07, 2011

Reversal in CP Receipt case -- Inadequate Guilty Plea Failed to Distinguish Receipt v. Possession

In US v. Szymanski,a published decision issued today (available here), the Sixth Circuit reverses a CP receipt conviction and five-year (mandatory minimum) sentence, clarifying the difference between CP receipt and possession. Implicit in the ruling is that the Government cannot obtain a conviction for CP receipt merely by showing the presence of CP on a computer.

A week before oral argument, the Sixth Circuit sua sponte asked the parties to address the quantum of proof and whether the plea and conviction were proper.

The basis for the reversal is "Szymanski may have unknowingly pled to an offense—subjecting him to a mandatory minimum the district court sought not to impose—whose elements he did not understand and which he may not have committed." Because the "demanding scienter requirement" was not explained to the defendant during the brief guilty plea colloquy, the Sixth Circuit found the defendant "did not have an adequate understanding of the nature of the charge at issue." The case begins:

First, the Supreme Court [in United Statse v. X-Citement Video, Inc., 513 U.S. 64 (1994)] over sixteen years ago, construed the crime at issue to contain an element not necessarily required by its statutory text: a defendant charged with receipt of child pornography must have knowledge, not only as to the act of receipt itself, but also as to the fact that the material he is receiving features minors engaged in explicit sexual conduct. Second, this interpretation of the statute as containing a demanding scienter requirement was never explained to the defendant during the rather brief colloquy preceding the district court’s acceptance of his guilty plea. Indeed, our examination of the record leaves us with the strong impression that the defendant, his counsel, as well as government counsel at the arraignment did not have an adequate understanding of the nature of the charge at issue. Moreover, there is evidence that the defendant specifically denies having any knowledge at all with respect to the content of the material he was receiving at the time of receipt, the very element the Supreme Court held necessary for conviction under the receipt charge. Accordingly, we VACATE the defendant’s conviction and sentence, and REMAND the case for further proceedings.

The Court declined to find harmless error becuase the defendant denied knowing the material he received was CP at the time he received it, and the district court improperly believed CP possession and receipt to require the same elements.

Reversal of Consecutive Federal Sentence

In U.S. v. Bowman, a published opinion available here, the Sixth Circuit reversed a federal sentence imposed consecutively to an undischarged state sentence. The defendant pled guilty in federal court to two counts of possession and distribution of ecstasy and BZP, and pled guilty in state court to violating probation for the same two offenses. He was sentenced to 120 months imprisonment for the federal charges (based on an 120-150 month range) imposed consecutively to the state sentences.

The district court plainly erred by assuming the application of U.S.S.G. § 5G1.3(c) to be mandatory, stating "I've got to sentence you consecutively" (the Sixth Circuit declined to decide the applicable standard of review).

This court in [United States v.Gibbs, 506 F.3d 479, 488 (6th Cir. 2007)] held that the district court’s ruling constituted plain error because the explicit language of U.S.S.G. § 5G1.3(c) grants the court discretion to impose either a concurrent or a consecutive sentence. Id. at 487–88. In addition, this court stated that “where the district court believes that an aspect of the Guidelines is mandatory, there is a presumption of prejudice to the substantial rights of the defendant, and a remand for resentencing is required.” Id at 488. The Gibbs court explained “that prejudice is presumed because the district court’s failure to recognize its discretion in sentencing renders it impossible for the defendant ‘to show that the subjective decision of the court would have been different if the error had not occurred.’” Id.

The sentencing transcript did not provide "clear and specific evidence" the district would have imposed a consecutive sentence even if it knew it had the discretion to do so. In addition, the fact Bowman was sentenced at the low end of the advisory guideline range "suggests that there is an even greater chance that the district court would have sentenced him to a lower sentence if it had recognized that consecutive sentences are not mandatory under U.S.S.G. § 5G1.3(c)."

The Sixth Circuit also found the appellate waiver in the plea agreement did not bar the claim because the government failed to include a specific reference to § 5G1.3(c).