Thursday, May 24, 2012

The Rarest of Birds: A Defense Victory in a Non-Capital Habeas Case

According to an empirical study, approximately 0.3% of non-capital habeas petitions are successful. On Tuesday, Vonlee Titlow, a prisoner incarcerated at the Richard A. Handlon Correctional Facility in Ionia, joined this exclusive club. In Titlow v. Burt (10-2488), Judges Gilman and Clay (with Judge Batchelder dissenting) found that Titlow's attorney had been constitutionally ineffective and granted the writ.

Michigan charged Titlow with second-degree murder in 2000. Titlow's first lawyer negotiated a plea agreement for a 7-to-15 year sentence. Titlow's second attorney, however, advised Titlow to withdraw the plea agreement and go to trial. This attorney totally failed to investigate the case before giving said advise. A jury convicted Titlow and she was sentenced to 20-to-40 years. A majority of the panel found this to constitute ineffective assistance under Strickland. Judge Batchelder did not think that the attorney had been the primary cause of Titlow undoing the plea, and so dissented.

I Demand Satisfaction: New Mexico Aggravated Assault (Deadly Weapon) Not Crime of Violence Under Guidelines

By this point, you might think that our Court had already determined every possible prior conviction that constitutes of a "crime of violence." You would, of course, be wrong. Until this week, the Sixth Circuit had not had opportunity to consider a New Mexico conviction for aggravated assault (deadly weapon).

In United States v. Rende-Mendez (10-2509), the Court decided that, notwithstanding its name and a dissent by Judge Griffin, New Mexico aggravated assault (deadly weapon) is not a crime of violence under U.S.S.G. Section 2L1.2. The court applied the familiar categorical approach and noted that the New Mexico statute defining the offense could be satisfied by "the use of insulting language toward another impugning his honor, delicacy or reputation." N.M. Stat. Section 30-3-1(C). Such actions, the Court reasoned, could not be considered a crime of violence.

Monday, May 21, 2012

Court Adopts Two-Pronged Heller Analysis, Rejects Second Amendment Challenge to "Dangerous Weapon" Enhancement

In 2008, the Supreme Court in Heller held that the Second Amendment protects an individual's right to keep and bear arms without regard to Militia service. That right, however, is not unlimited. Post-Heller, lower courts have struggled to turn the text of the decision into a workable approach for resolving Second Amendment challenges. Today, in United States v. Greeno (10-6279), the Sixth Circuit adopted the two-pronged test utilized by the Third, Fourth, Seventh, and Tenth Circuits.

Under the first prong, the court asks whether the challenged law burdens conduct that falls within the scope of the Second Amendment right as it was understood at the relevant time of ratification (1791 for the Bill of Rights, 1868 for the Fourteenth Amendment). If the law does not, the inquiry ends and the challenge fails. If, however, the government cannot establish that the conduct falls outside of the scope of the right, then the court proceeds to the second prong of the test.

Under the second prong, the court applies the "appropriate" level of scrutiny to the strength of the government's justification for restricting or regulating the exercise of Second Amendment rights. The definition of "appropriate" is not defined.

Mark Greeno was convicted of conspiracy to distribute methamphetamine and received the standard two-level enhancement under Section 2D1.1(b)(1) of the U.S. Sentencing Guidelines for possession of a dangerous weapon. Greeno argued that the enhancement violated his post-Heller Second Amendment rights.

The Court announced its adoption of the two-pronged test and dismissed Greeno's challenge without reaching the second prong. The Court reasoned that, even in 1791, the Second Amendment only protected an individual's right to possess a weapon for lawful purposes. The Court did not reach the second prong and so did not weigh in on what level of scrutiny it might apply.

Take-aways from this case: (1) adoption of the two-pronged test; (2) under the first prong, the burden appears to be on the government to prove that the activity is outside of the scope of the Second Amendment as it was historically understood; (3) Second Amendment is unlikely to be of help to criminal defendants.

Friday, May 18, 2012

Good CP Case

United States v. Aleo, Nos. 10-1569/1570/1833 (6th Cir. May 15, 2012). 

Panel of Judges Boggs, Rogers, Sutton.  Judge Sutton also issued a separate concurrence. 

D sentenced to 720 months for producing, possessing, and transporting CP.  GLs were 235 to 293 months. 

Ct finds no justifications for the upward variance and remands. 

D's counsel was sanctioned $2,000 (dist ct's inherent power to sanction) b/c of motion to compel gov to make a formal motion regarding any victim who wanted to speak at trial under the Crime Victim Rights Act (name victim and provide preview of statement).

No evidence motion filed in bad faith, so sanction reversed. 

Notes on sentence:
* Psychotherapist said D met definition of pedophile.
* Risk assessment score indicated low risk to re-offend sexually.  Low risk of violence. 
* Sentence was procedurally reasonable.
* COA compares sentence to other sentences for similar conduct.  See slip opinion at 14 to 16. 

Notes on sanction:
* Gov had recommended against sanctioning the attorney. 
* Counsel had cited a defense-community article on the issue.  Check out footnote 11.
* COA questions whether inherent authority to sanction even exists in a criminal case like this one.  See footnote 13.  Suggests Fed R Crim P 42 may be only option for sanctions.  COA doesn't answer question b/c doesn't need to do so.  No basis for sanctions under either approach. 

Judge Sutton's concurrence:
* Skeptical of dist ct's inherent authority to sanction.  Looks instead to 18 USC 401 and Fed R Crim P 42Contempt power only option in crim cases. 

Thursday, May 17, 2012

En Banc Court Reverses Grant of Habeas Corpus

Gagne v. Booker, an en banc case published yesterday, has a lot going on. The 70-page decision includes a plurality opinion, two concurrences, two opinions concurring in the judgment only, and two dissents. The case is instructive on not only the legal issues it addresses – among them, federal habeas review, the admissibility of evidence, and the confrontation clause – but also on the motivations and allegiances of the judges that comprise our Circuit.
A Michigan jury convicted Lewis Gagne of two counts of first-degree criminal sexual misconduct. The victim, P.C., was Gagne’s ex-girlfriend. She claimed that on July 3, 2000, Gagne and his friend Donald Swathwood had forcibly raped and sodomized her. Gagne claimed that the three of them had had consensual group sex.
As part of his defense, Gagne wanted to put on evidence that (1) Gagne, P.C. and another man (not Swathwood) had on a prior occasion engaged in group sex; and (2) that P.C. had on a prior occasion offered to engage in group sex with Gagne and Gagne’s father. The court denied admission of the evidence under Michigan’s Rape Shield Law. Michigan’s Rape Shield Law, like that of many states, bars most evidence of specific instances of a victim’s past sexual conduct. There is an exception for evidence of the victim’s past sexual conduct with the accused, but that exception applies “unless and only to the extent that the judge finds that the [] proposed evidence is material to a fact at issue in the case and that its inflammatory or prejudicial nature does not outweigh its probative value.”
Like the Sixth Circuit many years later, Michigan appellate judges struggled to apply the Rape Shield Law to this fact pattern. The material fact at issue was whether P.C. consented. Part of the proffered evidence concerned P.C.’s past sexual conduct with Gagne, but part of it also concerned non-defendants. Michigan judges conceded that the Rape Shield Law did not appear to have contemplated the complications arising from group sex. Ultimately, Michigan decided that the Rape Shield’s protection of P.C. outweighed Gagne’s right to put forth a complete defense, and affirmed Gagne’s conviction.
On federal habeas review, the district court granted a writ of habeas corpus, finding that the exclusion of the testimony regarding the group sex and the offer of group sex with his father had violated Gagne’s Sixth Amendment rights to a fair trial, to confront witnesses against him, and to present a complete defense. The Sixth Circuit affirmed and later granted rehearing en banc.
The en banc panel that heard Gagne’s case consisted of sixteen Sixth Circuit Judges. Every active judge except Donald, the most recent appointee, participated, as well as Senior Judge Norris, who had been part of the original three-judge panel to hear the case.
The decision of the court was penned by Judge Batchelder and joined by six members of the well-established conservative bloc of the Sixth Circuit: Judges Boggs, Gibbons, Sutton, Cook, McKeague, and Griffin. Judge Kethledge was conspicuously absent.
Judge Batchelder’s opinion reversing the granting of the writ of habeas corpus is grounded in the “objectively unreasonable” requirement of AEDPA. The analysis concludes:
The “group sex” at issue in this case involved P.C.’s prolonged sex (oral, vaginal, and anal) in various positions with both men concurrently, spankings, and repeated vaginal and anal penetrations with multiple sex toys, vibrators and a wine bottle, resulting in vaginal bleeding and bruising. To be sure, jurors might find this behavior outlandish, aberrant, abnormal, bizarre, disgusting, or even deviant and, therefore, find it incredible or inherently unbelievable that P.C. would have consented to it. And it is not unreasonable to surmise that those jurors would be more likely to find consent if they were told that she had engaged in – and offered to engage in – group sex at least two other times in the past. But, again, that is not the question. The question is whether the Michigan Court of Appeals was “objectively unreasonable” in rejecting this argument. Considering the general antipathy for propensity evidence, that State’s established interest in rape-shield laws, and the Michigan Supreme Court’s repeated rejection of this argument, we cannot say that the decision in this case was “beyond any possibility for fair-minded disagreement.”
The primary dissenting opinion was authored – surprisingly some might say – by Judge Kethledge. Ordinarily no fonder of habeas relief than Judge Batchelder, Judge Kethledge wrote a forceful and meticulous opinion. Not only did Judge Kethledge painstakingly detail why the evidence of past group sex might have been crucial to Gagne’s defense, he also took AEDPA by the horns in a way that would make any federal defender proud. Judge Kethledge went to great lengths to find clearly established Supreme Court precedent and to connect the dots from that precedent to this case. From Chambers and Crane, Judge Kethledge distilled the principle that a court cannot use a “flimsy” evidentiary rationale to exclude evidence that is critical to resolving a credibility dispute. In Olden, Judge Kethledge found a right to confrontation in a rape case “that boiled down to a credibility contest in which the sole issue was consent.” In light of this precedent, Kethledge argued that no reasonable jurist could have excluded the proffered evidence. He was joined by Judges Martin, Norris, Rogers, and Stranch.
Judge Griffin joined the plurality and also concurred to express deep concerned about the dissent’s treatment of “propensity” evidence. What concerned Judge Griffin the most was the right of the victim not to have her past sexual actions used against her.
Sutton also joined the plurality. He concurred expressing his agreement with the other concurrences, and also, somewhat curiously, added: “the combination of AEDPA and [Michigan v.] Lucas precludes me from joining Judge Kethledge’s otherwise-forceful dissenting opinion.”
In a telling opinion, Judge Moore concurred in the judgment only. Judge Moore agreed with the result of the plurality, but not its method of analysis. In fact, Judge Moore believed that “the dissent by Judge Kethledge has the better exposition of the general constitutional principles at issue in this case and how they should be considered on habeas.” In short, Judge Moore thought that the plurality gave the state more deference than it was due. She agreed with the quantum of deference afforded by the dissent, but disagreed with its conclusion. In many ways, Judge Moore’s opinion is most emblematic of the Court as a whole, representing the most balanced view of all its opinions. Judge Cole joined Moore’s concurrence.
Judge Clay also concurred in the judgment only.  Like Judge Griffin, Clay was most concerned with the probative value of the evidence, which he noted was likely hearsay. Like Judge Griffin, Judge Clay bucked at the inference that a woman who consents once to group sex is more likely to consent to it again in the future.
Judge White also concurred in the judgment only. Like Judge Moore, Judge White did not like the plurality’s approach and preferred the dissent’s “legal analysis” and “application of clearly established federal law.” Judge White, however, did not read the record the way the dissent did, and so disagreed with its conclusions.
Judge Martin joined Judge Kethledge’s dissent and also wrote a separate dissent. Judge Martin expressed that he was “disappointed in the majority’s decision to frame this evidentiary issue as a protection of Michigan’s rape shield statute.”  Judge Martin wanted to refocus the question as one of evidence.
So, what is to be taken away from this case? First, there is no majority opinion even though the overall tally was 11 to 5 in favor of reversal. In terms of the merits of the claim, it was not a particularly close case, and arguably not a very important decision in terms of precedential value. A majority of the Judges seemed to agree that it was not unreasonable to use the Rape Shield Law to exclude the proposed evidence.
But in terms of the politics of the court, especially with respect to AEDPA, this case is fascinating. Attorneys who practice in the Sixth Circuit are always happy to see an en banc decision that does not break down strictly according to the liberal/conservative dichotomy. Several judges arguably “broke ranks” in this decision and it is revealing to consider why. Judge Kethledge, most obviously, broke ranks from the conservative bloc (and from his tendency to deny habeas petitions) and exerted great effort attempting to clear the AEDPA hurdle. His effort earned him the praise of a number of his colleagues even if they did not join him. Attorneys drafting habeas petitions in the future would do well to pay close attention to the way in which he marshaled Supreme Court precedent (although beware of the plurality’s Footnote 19 and Judge Kethledge’s response in Footnote 2 – more on this below).
Judges Moore, Clay, White, and Cole did not vote with their usual “liberal” allies. But they did not join the plurality either. Their concurrences – especially Judge Moore’s – betray a tension between their view of the merits of the case and their view of AEDPA. Judge Moore does not believe the merits of this case warrant the granting of a writ, but she will not join the plurality’s extreme view of AEDPA deference. Judge Moore wants to protect her ability to grant a writ of habeas corpus in the future if she found herself feeling as strongly about the merits as Judge Kethledge did in this case. Judge White’s somewhat enigmatic concurrence can be read similarly.
For those who practice habeas corpus law, there is an important little argument between Judges Batchelder and Kethledge, played out in a couple of footnotes. (Everyone else will be put to sleep and can skip this paragraph.) The fight stems from Judge Kethledge’s (noble) attempt to hang his argument on the “contrary to” hook of 2254(d)(1), rather than on the more common  “unreasonable application” hook. Again, federal defenders will understand Judge Kethledge’s bind all-too-well; Michigan never identified any of the cases he wants to apply. Footnote 19 of the plurality opinion rejects Kethledge’s reasoning (although does call it “clever”) and essentially states that the “contrary to” clause has been gutted and only applies when the facts of the instant case are identical (not analagous) to an old Supreme Court case. Judge Kethledge responds in a footnote of his own, espousing a slightly more generous reading of the “contrary to” clause. Since Williams v. Taylor, the contours of the “contrary to” clause continue to evolve in our court, but it is good to know that Judge Kethledge at least believes it still has some teeth.
Overall, the AEDPA analysis of Batchelder and Kethledge reveal, for approximately the infinity-ith time the malleability of the AEDPA standard. There can be no other explanation than that “clever” judges are able to bend AEDPA at their will. If a judge really, really believes in the merits of a claim, he or she can make the state court’s opinion run afoul of AEDPA. And if a judge can live with the state court, he or she will have no problem finding the state court’s decision “not unreasonable”.
But to end on an optimistic note, this case is in some ways refreshing. The plurality and the dissent genuinely engage with each other, rather than devolving into the typical split in habeas cases: one side addresses only AEDPA and the other only the merits. Judges Kethledge and Moore probably deserve the most credit for their independent and courageous opinions. For now, let us hope this case marks the beginning of a less polarized Sixth Circuit.

Tuesday, May 08, 2012

Career Offenders and the Crack Reduction

I figure phones will be ringing off the hook tomorrow in some offices, so let me give you the fast and dirty breakdown of United States v. Jackson, 10-3923. (found here).

On its face, it appears to allow 3582(c) crack guideline reduction petitions where the defendant was found to be a career offender. HOWEVER, the devil is in the details.

Jackson pled guilty in June 2009. He was found to be a Career Offender. The District Court delayed his sentencing for over a year, anticipating Congress was about to pass a new crack law. It finally decided it could delay no longer, and sentenced Jackson on July 16, 2010. Jackson filed a timely notice of appeal. The FSA, of course, was passed on August 4, 2010. At Jackson's sentencing, the District Court discussed at length the horrible disparity between the crack and powder guidelines. The District Court clearly wanted Jackson to have a more just guideline. The District Court did give a 38-month downward variance from the career offender guideline smack into the middle of the then-applicable crack guideline.

Writing for the majority (J. Boggs dissented), Judge Merritt stated, "When the original sentencing judge decides to vary from the career offender guideline range to some other range, it is fair to say that the sentence imposed is 'based on' the adopted range and not the career offender range." He discussed the instruction in Freeman v. United States, 131 S.Ct. 2685 (2011), to "isolate whatever marginal effect the since-rejected Guideline had on the defendant's sentence. Working backwards from this purpose, 3582(c) modification proceedings should be available to permit the district court to revisit a prior sentence to whatever extent the sentencing range in question was a relevant part of the analytic framework the judge used to determine the sentence." Judge Merritt rule the crack cocaine guidelines were "clearly 'a relevant part of the analytic framework' used by the district court."br/br/Defenders may want to review their crack career offender cases to see if any might be due relief. This will likely involve review of the transcripts from the sentencing hearing.

Friday, May 04, 2012


Well, it's been a bad day for music fans.  But it's also a bad day for those unfortunate enough to follow the unfolding soap opera that is ACCA jurisprudence.  Perhaps you've read about Sykes, Begay, and the categorical approach (both modified and unmodified) in these pages before?  (Just scroll down if you have not.)  Well, today's opinion in United States v. Doyle finds Sykes emerging at the top of this nasty dispute, and in a particularly painful way.  Here's the synopsis, for those whose stomachs are too weak for the salacious details....

Mr. Doyle was an armed career criminal in part because of a prior conviction for Tennessee Class-E evading arrest.  In United States v. Rogers, the Sixth Circuit upheld another defendant's ACCA designation decided that Tennessee Class E evading arrest is a "violent felony" under the ACCA.  The Supreme Court, however, singled the Rogers case out for reconsideration after it published the now notorious Sykes opinion, directing the Sixth Circuit to reconsider the Rogers opinion in light of Sykes.  The Rogers panel was presumably considering this question when the Doyle panel issued its opinion. 

The Doyle opinion had no trouble concluding that the reason the Supreme Court wanted the Rogers panel to reconsider the case in light of Sykes is that the Supreme Court must have thought Rogers was correctly decided, but for the wrong reason.  The Tennessee law in question is notable because it is explicit that a felony can only be "Class E" if it does not "create[] a risk of death or injury to innocent bystanders or other third parties."  In other words, the fact that the Tennessee legislature wanted to distinguish between those flight attempts that create a risk of injury and those that don't" sure suggests that the lesser crime might get a pass under the ACCA.  The Sixth Circuit disagreed, focusing on the fact that the residual clause only requires a serious "potential" risk to "another," and any flight creates a risk to a pursuing police officer. 

The opinion contains a long discussion of Sykes as it relates to lesser-included offenses.  There's also a thoughtful dissent by Judge White.  But for now it suffices to tell you that your clients who have prior convictions for evading arrest are a lot more vulnerable.  Wish I had better news.