Friday, March 29, 2013

Stalking Is a Violent Felony

This case came out about a month ago, but I think it's worth noting.

United States v. Johnson, No. 11-5769 (6th Cir. Feb. 20, 2013) (for publication).  Panel of Judges Boggs, White, and Black (S.D. Ohio). 

Denial of suppression motion affirmed (traffic stop).

Use of Kentucky stalking conviction as violent felony for ACCA purposes affirmed.

I'm a little pressed for time, so I won't go into the suppression issue.  Nothing earth shattering. 

Prior Conviction:
* Kentucky first-degree stalking (Chapter 508 of Kentucky Penal Code, Ky. Rev. Stat. 508.104).
* Stalking---new issue for Sixth Cir., but COA looks to other circuits for guidance here.
* This statute does not necessarily require threatened use of violent force, so doesn't count for ACCA under force provision.
* But counts under serious-potential-risk provision.  Potential for confrontation that could result in bodily injury.  COA compares stalking to extortion. 

Friday, March 22, 2013

Your girlfriend is a reliable informant

The Sixth Circuit's recent ruling in United States v. Kinison, 12-5997 (found here), is not earth-shattering, but does contain some interesting bits.

Kinison became interested in a group in Georgia that supposedly adopted children so they could molest them. He texted back and forth with his girlfriend about it, and described to her child pornography he had seen online. The girlfriend eventually went to the police, who downloaded 1,646 pages of text messages from her phone. She spoke with police on three separate occasions. The police asked her where Kinison was viewing child pornography and she told them he was doing it in his home. There is nothing in the record to suggest if she knew that or was just guessing.

On the strength of the girlfriend's information and the text messages, police got a warrant to search Laughton's home. When they went to serve the warrant, Kinison arrived in his car, with a cell phone clearly visible in the center console. Police obtained a search warrant for the car. They ultimately seized a computer and a phone from Kinison's house, and the cell phone from his car. Child pornography was found on the computer.

The Sixth ruled the girlfriend could be relied upon because she was not anonymous, the text messages clearly reflected an intimate relationship between her and Kinison, and in coming forward she put herself at risk of criminal prosecution because she had discussed with Kinison a plan to kidnap and molest a small child. This seems to have rendered her credible about who sent the texts and where he lived because law enforcement did not try to verify the information.

It was OK to think Kinison was looking at child porn at his home because, basically, "everybody knows people look at that stuff in the privacy of their own home." Sadly, there is established case law in support of that view.

And, even if the girlfriend was guessing about where the porn was viewed, the police were acting in good faith on the approval of their warrant and their actions do not warrant the application of the exclusionary rule.

Wednesday, March 06, 2013

Pinholster & the Perennial Catch-22

So, what’s a guy to do if his lawyer is ineffective, but state judges won’t let him prove it the only way he knows how: by establishing facts that aren’t part of the existing record? The Sixth Circuit removed all doubt in Ballinger v. Prelesnik, No. 12-1357, and said – basically – nada, so long as the claim was adjudicated on the merits.

In a case originating from Michigan, the Sixth Circuit reiterated Pinholster’s central holding that in federal habeas proceedings, district courts many not expand the record for claims that have been already been given merits review by the state.  Ballinger claimed his attorney was ineffective for failing to call an alibi witness during his double-murder trial.  He retained new counsel before sentencing and proposed to make a record of the IAC claim and alibi defense through a motion for new trial. The trial judge summarily denied the motion, and on direct appeal, Michigan courts rejected Ballinger’s request for an evidentiary hearing. The Court of Appeals then faulted Ballinger for presenting no record evidence to support his IAC claim.

In evaluating the habeas petition, the district court found it unreasonable for Michigan courts to decide the issue with an insufficiently developed record. The court thus held an evidentiary hearing, and after deeming the defense credible, found counsel ineffective and granted the petition.

The Sixth Circuit reversed. It viewed the state court’s discussion of the IAC issue as a "brief but reasoned" adjudication on the merits under Harrington. The Court noted that while it might be tempting to supplement an otherwise sparse trial court record (especially for a diligent petitioner), the plain language of Pinholster and Harrington precludes itAfter viewing the issue with the required AEDPA deference, the Court was unwilling to treat the state court’s resolution of the IAC claim as an unreasonable application of Strickland.  Practioners, beware!

Friday, March 01, 2013

Sixth Circuit goes more conservative than the Fifth

In United States v. McGee, an unpublished decision today, the Sixth Circuit confronted an issue that it has previously avoided:  the application of appellate waivers to ACCA determinations.  Often plea  agreements will contain a provision wherein the defendant waives the right to appeal his sentence unless the sentence exceeds the statutory maximum.  Normally, the statutory range for felon in possession of a firearm under 18 U.S.C. § 922(g) is 0-10 years.  But if the defendant qualifies for an Armed Career Criminal Act (“ACCA”) enhancement, the statutory range is 15-life.

So, if the district court erroneously imposes an ACCA sentence of 15 years, is that sentence in excess of the correct statutory maximum of 10 years?  If so, the appellate waiver would not apply.  While acknowledging that the Fifth Circuit has allowed appeals in this scenario, the Sixth Circuit took a different path.  The Sixth Circuit held that “the maximum sentence authorized by Congress for a violation of § 922(g) is life imprisonment.”  Accordingly, the appellate waiver applied in McGee.

In other words, no matter how clear it is that the defendant does not qualify for an ACCA sentence, no matter how obvious it is that the defendant should be facing a statutory maximum of 10 years, the Sixth Circuit will be powerless to correct this type of an error if there is an appellate waiver to all sentences within the statutory maximum.

Of course, there is a simple solution.  Defendants could attempt to insist on rewording appellate waivers to bypass McGee by stating explicitly that the defendant reserves the right to appeal a determination that he qualifies for the ACCA.  Given the rapidly evolving nature of the Supreme Court’s ACCA jurisprudence, it might be worth considering routinely insisting on such an exception to the appellate waiver in the event the next Supreme Court case impacts your client’s ACCA eligibility.

Tablets for oral argument

The Sixth Circuit has approved the limited use of laptops and tablets during oral argument.  For complete rules click here: