Wednesday, February 06, 2019

Not so fast! Court holds that the district court went too far in fashioning habeas relief.

On habeas review, what should a district court do when faced with clear evidence that a state court failed to properly address jurors' "extracurricular fact-finding" by conducting internet research?  In   Ewing v. Horton, the Sixth Circuit held that the district court went too far. 

After four days of strenuous deliberations -- during which it unsuccessfully asked the trial court to declare it deadlocked -- a jury convicted Darrell Ewing of first degree murder.  Approximately two months after the jury issued its verdict, however, one of the jurors filed an affidavit stating that two of her fellow jurors had searched for information on the Internet about Mr. Ewing using Google and Facebook.  Faced with this information, Mr. Ewing moved for a new trial and, in the alternative, for an evidentiary hearing regarding the newly presented information.  The trial court subsequently denied the motion, finding that the extraneous information was merely duplicative of the evidence presented against Mr. Ewing at trial.  The Michigan Court of Appeals subsequently affirmed, and the Michigan Supreme Court denied further review.

Having exhausted his state court remedies, Mr. Ewing filed a habeas action wherein he asserted the trial court violated his constitutional rights to a fair trial and impartial jury because of the jury's consideration of extraneous facts.  In addition, Mr. Ewing asked the district court to order a new trial or a hearing to determine the impact of the extraneous information presented to the jury.  The district court subsequently agreed and ordered that the state grant Mr. Ewing a new trial within ninety days or otherwise order his release.

On appeal, the parties conceded that the trial court had violated Mr. Ewing's constitutional rights.  However, they disagreed on the remedy.  Was Mr. Ewing entitled to a new trial or to the the Remmer hearing the trial court failed to hold?  The Sixth Circuit agreed with the latter.  Through no fault of his own, the Court concluded, Mr. Ewing had not developed sufficient evidence to prove the jury's consideration of extraneous information denied him his constitutional right to a fair trial and impartial jury.  Since the trial court denied Mr. Ewing such an opportunity, the Court held that the proper remedy was to remand the matter to the trial court to conduct an evidentiary hearing.

As noted in the majority opinion and in Judge Moore's dissent, the case also touched upon the appropriate discretion provided to district courts in fashioning relief in habeas cases and upon principles of federalism.  The Court concluded that the district court abused its discretion by imposing a new trial upon the state court without allowing it an opportunity to conduct a Remmer hearing.

This case presents examples of the pitfalls that juries face in an era of easily accessible information and about how the Sixth Circuit views principles of federalism in habeas proceedings.  In this instance, at least, the Court believed the district court went too far in fashioning relief.  

Saturday, February 02, 2019

          Sixth Circuit examines the adequacy of a district court’s explanation for imposing consecutive sentences

           In United States v. King, the defendant, Dalen King, was on supervised release when he pleaded guilty to several drug charges. The drug convictions were among the violations on which revocation of supervised release was sought. The Guidelines range for the drug convictions was 30 to 37 months imprisonment and by statute the maximum sentence for the supervised release violations was 24 months.

          The government argued for a Guidelines range sentence for the drug convictions and a consecutive sentence of 24 months for the supervised release violations. Mr. King argued for “a total combined sentence” that fell below the Guidelines range. The district court sentenced Mr. King to 30 months imprisonment on the drug convictions and a consecutive sentence of 6 months on the supervised release violations.

          On appeal, Mr. King argued that his sentence was procedurally unreasonable because the district court failed to explicitly refer to the applicable policy statement (U.S.S.G. §7B1.3(f)) and did not adequately explain its reasons for imposing consecutive sentences. The issue was subject to plain error review because no objection was made at sentencing. The Sixth Circuit held that the district court provided an adequate explanation for imposing consecutive sentences and thus affirmed Mr. King’s sentence.  

          In the exercise of its discretion to run sentences concurrently or consecutively, the district court must consider the factors in 18 U.S.C. §3553(a) and any applicable Guideline or policy statements. Although the district court here did not specifically refer to §7B1.3(f), which addresses the imposition of consecutive sentences upon revocation of supervised release, the Sixth Circuit found from the record that the court considered that policy statement. The Sixth Circuit noted that the district court heard the parties’ sentencing arguments; questioned the government about its sentencing recommendation; made a statement about consecutive sentencing; and addressed Mr. King’s background and history. All of those factors led the Sixth Circuit to conclude that the district court considered the relevant Guidelines and policy statements and understood that it had the discretion to impose concurrent or consecutive sentences.  The district court was found to have complied with §3553(a) and adequately explained its sentencing decision.

          Mr. King also made an argument that the district court was required to consider U.S.S.G. §5G1.3(d) which is a policy statement that addresses the concurrent - consecutive sentencing options where the defendant is subject to an undischarged term of imprisonment. The Sixth Circuit noted that §5G1.3(d) is inapplicable “to sentences imposed for violations of supervised release.” Rather, “it applies to sentences for convictions that occur while a defendant is on supervised release, not a supervised release violation itself.” King, Op. at 5, n.3. (citations omitted) .

          Mr. King made an additional argument that the district court failed to specifically respond “to a one-sentence argument” in his sentencing memorandum which noted that he was assessed 2 criminal history points for violating the law while on supervised release. Since those points increased his Guidelines range, Mr. King contended that a concurrent sentence for the supervised release violation would satisfy the §3553(a) factors. The Sixth Circuit rejected that argument stating that the district court “is not required to explicitly address every mitigating argument that a defendant makes, particularly when those arguments are raised only in passing.” Op. at 7 (citation omitted).

          The King decision reinforces not only the need to make objections at sentencing to any procedural errors but also to flesh out sentencing issues either in a written memorandum or at the sentencing.