Castro v. Scanlan

Court: US Court of Appeals for the First Circuit

Docket: 23-1902

Opinion Date: November 21, 2023

Judge: David J. Barron

Areas of Law: Civil Rights, Constitutional Law, Criminal Law

The First Circuit affirmed the judgment of the district court dismissing the suit brought by Plaintiff seeking to enjoin the New Hampshire Secretary of State from "accepting or processing" the "ballot access documentation" brought by Donald Trump, the former President of the United States, for the 2024 Republican presidential primary in the state of New Hampshire, holding that Plaintiff lacked standing.

Plaintiff, a United States citizen and Republican primary presidential candidate, brought this complaint alleging that section 3 of the Fourteenth Amendment barred Tump from "holding" the office of President of the United States again on the ground that he "engaged in insurrection or rebellion against [the U.S. Constitution], or [gave] aid or comfort to the enemies thereof." The district court dismissed the lawsuit on jurisdictional grounds, concluding that Plaintiff lacked standing under U.S. Const. art. III, 2 and that his section 3 claim presented a nonjusticiable political question. The First Circuit affirmed, holding that Plaintiff failed to show that he could satisfy the "injury-in-fact" component of Article III standing.

Ciarametaro v. City of Gloucester

Court: US Court of Appeals for the First Circuit

Docket: 22-1700

Opinion Date: November 28, 2023

Judge: William Joseph Kayatta, Jr.

Areas of Law: Civil Rights, Constitutional Law

The First Circuit affirmed the decision of the district court granting summary judgment to Defendants, several city officials of the City of Gloucester, Massachusetts, in this First Amendment action brought by Plaintiff, the Harbormaster of the city, holding that Defendants were entitled to qualified immunity.

In his complaint, Plaintiff claimed that Defendants violated his rights under the First Amendment by retaliating against him for his giving expert testimony in a maritime tort dispute. The district court granted summary judgment for Defendants, concluding that they were entitled to qualified immunity. The First Circuit affirmed, holding that, at the time of the alleged retaliation, the law did not clearly establish that the value of Plaintiff's speech outweighed the city's interest in the efficient provision of public services by the Harbormaster's office.

Martin v. Somerset County

Court: US Court of Appeals for the First Circuit

Docket: 23-1021

Opinion Date: November 21, 2023

Judge: Selya

Areas of Law: Civil Rights, Constitutional Law, Criminal Law, Personal Injury

The First Circuit affirmed the judgment of the district court ruling that the underlying suit was time barred as to all defendants in this action brought by Plaintiff under 42 U.S.C. 1983 on behalf of her late son's estate on the six-year anniversary of his death, holding that the lawsuit was time barred.

Plaintiff sued jail staff and a medical contractor (collectively, Defendants), alleging that while her son was detained in the Somerset County Jail, Defendants failed to recognize his serious mental illness, thus leading to his death following a suicide attempt. Defendants moved to dismiss the suit as time barred. The district court granted the motion. The First Circuit affirmed, holding that Plaintiff was not entitled to relief on her allegations of error.

Kravitz v. Purcell

Court: US Court of Appeals for the Second Circuit

Docket: 22-764

Opinion Date: November 27, 2023

Judge: MENASHI

Areas of Law: Civil Rights, Constitutional Law

Plaintiff, who was formerly incarcerated at Downstate Correctional Facility, brought claims under 42 U.S.C. Section 1983 against the officers for violating his First Amendment right to the free exercise of religion. Plaintiff named as defendants additional corrections officers. He alleged that the officers violated his First Amendment right to the free exercise of religion by preventing him from observing the Jewish holiday of Shavuot on two consecutive evenings. The district court granted summary judgment to the officers because (1) some named officers were not personally involved in the alleged violation on the first night of Shavuot, and (2) Plaintiff’s observance of the second night of the holiday was only shortened, not denied entirely, which did not rise to the level of a “substantial burden” on his religious beliefs.
 
The Second Circuit vacated in part and affirmed in part the judgment of the district court. The court wrote that the district court erred in holding that Plaintiff could not prevail on his claim because he did not make the threshold showing of a “substantial burden” on his religious beliefs. Such a showing is not required. Rather, because Plaintiff has shown a burden on his sincere religious beliefs, he has established a genuine issue of material fact sufficient to defeat a motion for summary judgment. The court vacated the judgment insofar as the district court granted summary judgment because of a purported “substantial burden” requirement, and affirmed the judgment insofar as the district court granted summary judgment to those officers for whom there was no evidence of personal involvement.

United States v. Calk

Court: US Court of Appeals for the Second Circuit

Docket: 22-313

Opinion Date: November 28, 2023

Judge: CALABRESI

Areas of Law: Constitutional Law, Criminal Law

A jury convicted Defendant of one count of financial institution bribery in violation of Section 215(a)(2) and one count of conspiracy to commit financial institution bribery. The district court sentenced Defendant to a term of 366 days’ imprisonment, followed by two years’ supervised release, and imposed a $1.25 million fine. On appeal, Defendant raiseed four challenges. First, Defendant challenged (a) what constitutes “corrupt” conduct under Section 215(a); (b) what constitutes a “thing of value” under Section 215(a); and (c) how to determine the monetary value of a “thing of value” under Section 215(a), all elements of the crime. Second, Defendant argued that there is insufficient evidence in the record to uphold his convictions. Third, Defendant argued that the district court’s jury instructions were erroneous. Fourth, Defendant claimed that the district court failed to exclude prejudicial testimony that the prosecution allegedly procured through the improper use of a grand jury subpoena.
 
The Second Circuit affirmed and concluded that Defendant’s challenges are without merit. First the court explained that “corrupt” conduct describes actions motivated by an improper purpose, even if such actions (a) did not entail a breach of duty, and (b) were motivated in part by a neutral or proper purpose, as well as by an improper purpose. Second, that a “thing of value” may cover subjectively valuable intangibles, such as political assistance, including endorsements, guidance, and referrals. Third, that the “thing of value” may be measured by its value to the parties, by the value of what it is exchanged for, or by its market value.

In re: Caryn Strickland

Court: US Court of Appeals for the Fourth Circuit

Docket: 23-2132

Opinion Date: November 28, 2023

Judge: MARY BECK BRISCOE

Areas of Law: Civil Procedure, Constitutional Law

Petitioner petitioned for a writ of mandamus, alleging that the district court has unduly delayed holding a consolidated trial on the merits of her claims and a hearing on her motion for preliminary injunction.
 
The Fourth Circuit denied the petition. The court explained that after reviewing the petition and the record of the district court proceedings, that either of these latter two factors support the granting of a writ of mandamus. The court explained that in the petition, Petitioner refered to her right to a “prompt evidentiary hearing” and, alternatively, to her “clear and indisputable right to expedited treatment of her PI motion” She asserted that this right is rooted in a statute, 28 U.S.C. Section 1657(a), as well as Rule 40 and Rule 65(a)(2) of the Federal Rules of Civil Procedure. The court wrote that none of the sources entitle Petitioner to a trial prior to the currently scheduled trial date of December 11, 2023. To be sure, Section 1657(a) requires the district court in this case to “expedite the consideration of” Petitioner’s PI motion, and Rule 40 similarly requires the district court to “give priority” to that motion. But the record in this case, despite Petitioner’s protestations to the contrary, establishes that the district court has repeatedly attempted to do so.

Steven Bixby v. Bryan Stirling

Court: US Court of Appeals for the Fourth Circuit

Docket: 22-4

Opinion Date: November 27, 2023

Judge: AGEE

Areas of Law: Civil Rights, Constitutional Law

After the district court denied Petitioner’s initial 28 U.S.C. Section 2254 petition, he obtained new counsel and filed a motion to reopen that judgment under Federal Rule of Civil Procedure 60(b). He argued that exceptional circumstances warranted this relief because his original Section 2254 counsel had, in effect, abandoned him by submitting a Section 2254 petition that omitted several potentially meritorious issues and inadequately presented the issues that had been raised. He asked the court to reopen the judgment and allow him to file additional briefings and new claims. The district court concluded that Petitioner’s motion was not a true Rule 60(b) motion. Rather, Petitioner was attempting to use Rule 60(b) to circumvent the statutory limits placed on second or successive Section 2254 petitions. Recognizing that it would lack jurisdiction to consider a second Section 2254 petition, the district court denied Petitioner’s motion without considering its merits. Petitioner appealed.
 
The Fourth Circuit agreed with the district court’s conclusion that it lacked jurisdiction to consider Petitioner’s Rule 60(b) motion because he effectively sought to file a second or successive Section 2254 petition, something that a district court cannot authorize. The court also wrote that because it also concludes that the district court should have dismissed Petitioner’s motion rather than deny it, it vacated the district court’s order and remanded with instructions to dismiss.

US v. Dearnta Thomas

Court: US Court of Appeals for the Fourth Circuit

Docket: 21-7257

Opinion Date: November 29, 2023

Judge: WILKINSON

Areas of Law: Constitutional Law, Criminal Law

Defendant pleaded guilty in 2011 to possessing a firearm in furtherance of a “crime of violence” in violation of 18 U.S.C. Section 924(c), with the underlying crime of violence being VICAR assault with a dangerous weapon. Since his conviction, the Supreme Court has narrowed the kinds of crimes that can support a Section 924(c) conviction. At issue is whether VICAR assault with a dangerous weapon is still one of them.
 
The Fourth Circuit upheld Defendant’s conviction and found that VICAR assault with a dangerous weapon remains a valid crime-of-violence predicate. The court explained that the VICAR statute makes it a crime to commit any of the statute’s enumerated offenses “in violation of the laws of any State or the United States.” The court explained that it has interpreted this language to mean that one element of a VICAR conviction is that the defendant committed the enumerated federal offense, and another is that the defendant’s conduct violated an independent state or federal law. The court wrote that the federal assault with a dangerous weapon easily qualifies as a crime of violence. That this element of VICAR assault with a dangerous weapon qualifies as a crime of violence is sufficient in and of itself to render the offense a crime of violence; we need not progress to the state-law predicates. The court explained that to require courts to “look through” the VICAR offense to the underlying state crimes in every instance would unnecessarily send them on a scramble through innumerable state laws across the circuit.

US v. Gregory Brantley

Court: US Court of Appeals for the Fourth Circuit

Docket: 22-4166

Opinion Date: November 28, 2023

Judge: WILKINSON

Areas of Law: Constitutional Law, Criminal Law

Defendant was sentenced to 123 months’ imprisonment followed by a five-year term of supervised release after pleading guilty to drug distribution and firearms charges. At the sentencing hearing, the judge told Defendant that he would be “subject to the standard conditions” of supervised release “as adopted in the Eastern District of North Carolina.” However, the subsequent written judgment contained several special conditions of supervised release not mentioned in the oral pronouncement. These were no minor alterations. One special condition forbade Defendant from opening new lines of credit without permission. Another stipulated Defendant’s consent to warrantless searches of his person or his home whenever his probation officer saw fit. Defendant sent the district court a letter indicating his desire to appeal—223 days after the entry of judgment in his case and long after Rule 4(b)’s deadline had expired. The government promptly moved to dismiss his appeal as untimely.
 
The Fourth Circuit granted the government’s motion to dismiss. The court explained that in United States v. Rogers, 961 F.3d 291 (4th Cir. 2020), the addition of such unpronounced conditions is an error that violates the defendant’s right to be present at sentencing. When a defendant timely appeals a Rogers error, the court must vacate the sentence and remand for the defendant to be sentenced anew. However, here, Defendant filed his notice of appeal well outside the time limits imposed by Rule 4(b) of the Federal Rules of Appellate Procedure. The court held that defendants who raise Rogers errors are not excused from the usual timeliness rules for filing a notice of appeal.

Sligh v. City of Conroe

Court: US Court of Appeals for the Fifth Circuit

Docket: 22-40518

Opinion Date: November 29, 2023

Judge: Per Curiam

Areas of Law: Civil Rights, Constitutional Law

Plaintiff was bitten and injured by a police dog after Plaintiff’s partner called 911 to report that Plaintiff was suicidal, had hurt herself, and had left her house on foot. In the operative third amended complaint, Plaintiff asserted various claims against Sutton and Montes in their individual capacities as well as claims against the City of Conroe and Montgomery County. Specifically, as relevant to this appeal, she asserted (1) a 42 U.S.C. Section 1983 excessive force claim against Sutton; (2) a Section 1983 failure-to-intervene/bystander liability claim against Montes; (3) a Section 1983 municipal/Monell liability claim against the City of Conroe; and (4) various failure-to-accommodate claims under Title II of the ADA and Section 504 of the Rehabilitation Act against both the City of Conroe and Montgomery County. Montgomery County and Montes jointly moved to dismiss the complaint for failure to state a claim, raising, inter alia, a qualified immunity defense as to Montes.
 
The Fifth Circuit affirmed. The court explained that Plaintiff failed to allege specific and nonconclusory facts that would show that the City was deliberately indifferent in adopting its training policy. Accordingly, the court found that the district court did not err in dismissing Sligh’s failure-to-train claim against the City of Conroe. Further, the court explained that Plaintiff can “prevail only by showing that 'the disability, resulting limitation, and necessary reasonable accommodation’ were 'open, obvious, and apparent’ to the entity’s relevant agents.” But she does not attempt to make this showing. Nor could she.

Inner City Contracting LLC v. Charter Township of Northville

Court: US Court of Appeals for the Sixth Circuit

Docket: 22-2131

Opinion Date: November 30, 2023

Judge: Eric L. Clay

Areas of Law: Business Law, Civil Rights, Constitutional Law, Government Contracts

The Township solicited bids for the demolition of former hospital buildings. ICC, a Detroit-based minority-owned company, submitted the lowest bid. AAI, a white-owned business submitted the second-lowest bid, with a difference between the bids of almost $1 million. The Township hired a consulting company (F&V) to vet the bidders and manage the project. F&V conducted interviews with both companies and provided a checklist with comments about both companies to the Township. ICC alleges that F&V made several factual errors about both companies, including that AAI had no contracting violations and that ICC had such violations; that ICC had no relevant experience, that AAI had relevant experience, and that AAI was not on a federal contracting exclusion list. F&V recommended that AAI receive the contract. The Township awarded AAI the contract. ICC filed a complaint, alleging violations of the U.S. Constitution, federal statutes, and Michigan law.

The district court dismissed the case, finding that ICC failed to state a claim under either 42 U.S.C. 1981 or 42 U.S.C. 1983 by failing to allege the racial composition of its ownership and lacked standing to assert its constitutional claims and that F&V was not a state actor. The Sixth Circuit reversed in part. ICC had standing to bring its claims, and sufficiently pleaded a section 1981 claim against F&V. The other federal claims were properly dismissed.

State of Ohio v. Becerra

Court: US Court of Appeals for the Sixth Circuit

Docket: 21-4235

Opinion Date: November 30, 2023

Judge: Larsen

Areas of Law: Civil Rights, Constitutional Law, Government & Administrative Law

In 2021, the Department of Health and Human Services (HHS) issued a final rule governing the Title X program, which makes grants to assist in the establishment and operation of family planning projects. The Rule interpreted section 1008 of Title X, which bars funds appropriated under the Title X grant program from being “used in programs where abortion is a method of family planning.” States challenged the 2021 Rule’s elimination of a prior HHS rule that required grantees to maintain strict physical and financial separation between Title X programs and abortion-related services they might provide and the Rule’s requirement that Title X projects provide referrals for abortion services when requested by the patient.

The Supreme Court has held (“Rust,” 1991) that section 1008 is ambiguous as to program integrity and referrals for abortion and that Chevron deference applies. The Sixth Circuit held Ohio is entitled to a preliminary injunction enjoining the government from enforcing the 2021 Rule’s program integrity rules in Ohio in a manner that would affect the allocation of funding in Ohio. While the doctrinal landscape undergirding Rust has shifted significantly since it was decided, Rust, and its application of Chevron, remain binding. The 2021 Rule’s referral requirement is not an impermissible interpretation of section 1008 but the program-integrity requirements do not represent a permissible interpretation.

Sargeant v. Barfield

Court: US Court of Appeals for the Seventh Circuit

Docket: 21-2287

Opinion Date: November 28, 2023

Judge: Pryor

Areas of Law: Civil Rights, Constitutional Law, Criminal Law

Federal prisoner Sargeant filed a grievance against a prison official, Cruze, after she commented on his sexual preferences and refused to give him books that he had ordered. When Sargeant's case manager, Barfield, showed Sargeant the prison’s response, Sargeant noticed that it was signed by Cruze and pointed out that, under the prison’s rules, Cruze should not have seen a grievance lodged against her. Barfield then told others about the grievance. Sargeant filed a separate grievance against Barfield. In retaliation, Barfield “repeatedly” put Sargeant, who had cooperated with the government, in cells with prisoners known to be violent. This led to fights until Sargeant was transferred to another prison.

Sargeant sued seeking monetary damages, alleging that Barfield retaliated against him for filing grievances. He did not identify which of his constitutional rights she had allegedly violated. In screening under 28 U.S.C. 1915A, the judge decided that Sargeant could proceed only on a First Amendment retaliation claim and did not discuss any possible Eighth Amendment claim. The Seventh Circuit affirmed the dismissal of the complaint. Under the Bivens doctrine, a federal prisoner cannot recover damages for a violation of First Amendment rights. Recognizing a failure-to-protect claim in this context would risk intrusion with the federal prison system; the claim presents separation-of-powers concerns and special factors not accounted for by any of the Supreme Court’s Bivens precedents.

United States v. Aaron Broussard

Court: US Court of Appeals for the Eighth Circuit

Docket: 22-2980

Opinion Date: November 28, 2023

Judge: GRUENDER

Areas of Law: Constitutional Law, Criminal Law

The Eighth Circuit affirmed Defendant’s conviction for numerous drug offenses. The court held that the evidence against him was overwhelming, and he does not claim a reasonable probability that, but for the introduction of the challenged evidence, he would not have been found guilty.Defendant operated a website on which he once advertised 4- Fluoroamphetamine, a drug similar to the prescription medicine Adderall. Broussard received numerous orders for the Adderall analogue. But instead of shipping his customers the drug they ordered, he sent them fentanyl, a potent narcotic. As a result, eleven people died, and several others were seriously injured. Police investigated, and a grand jury indicted Defendant on numerous drug offenses. Broussard, representing himself, filed several motions in limine. One of his motions sought exclusion of all evidence “presented to invoke sentiment by expressing how the deaths or injuries of the alleged victims influenced personal experiences.” The jury found Defendant guilty on all counts, and the district court sentenced Broussard to life in prison. He appealed, arguing that the district court erred in allowing the Government to introduce evidence about the victims’ lives.
 
The Eighth Circuit affirmed. The court explained that the challenged evidence was arguably relevant to show that the victims were unlikely to have knowingly sought fentanyl or to have obtained it from some other source. It was also relevant to show that the victims were in good health, making it less likely that they died from some cause other than a fentanyl overdose. And taking into account the evidence’s arguable relevance, its introduction was not obviously unfairly prejudicial. Further, the court wrote that the evidence against him was overwhelming, and he does not claim a reasonable probability that, but for the introduction of the challenged evidence, he would not have been found guilty.

United States v. Michael Goforth

Court: US Court of Appeals for the Eighth Circuit

Docket: 23-1077

Opinion Date: November 28, 2023

Judge: COLLOTON

Areas of Law: Constitutional Law, Criminal Law

Defendant pleaded guilty to unlawful possession of a firearm as a felon. The district court determined an advisory sentencing guideline range of 57 to 71 months’ imprisonment and varied upward from the range to impose a term of 92 months’ imprisonment. Defendant argued on appeal that the district court plainly erred in calculating an advisory guideline range because his prior conviction for kidnapping in Arizona was not a conviction for a “crime of violence.”

The Eighth Circuit affirmed. The court explained that Defendant contends that Marquez-Lobos is obviously wrong and that the Arizona kidnapping plainly does not qualify as a generic kidnapping. His theory is that the Arizona statute encompasses kidnappings that do not involve an unlawful deprivation of liberty as defined by most States. But he contends that kidnapping in Arizona is broader than the generic offense because the Arizona statute assertedly applies to the restraint of any person who is incapable of giving consent—even if the person is neither a minor nor incompetent. Defendant’s argument is premised on a decision of an intermediate state appellate court, State v. Bernal, 713 P.2d 811 (Ariz. Ct. App. 1985). The court explained that it is not convinced that Bernal establishes an obvious error by the district court. Further, the court wrote that Defendant has not produced evidence that most of the States would disagree with the alternative line of reasoning suggested in Bernal: he simply argues that the expanded set of victims identified in Bernal would exceed the set of victims identified in most state statutes and the Model Penal Code.

USA v. Kendrick Eugene Duldulao, et al.

Court: US Court of Appeals for the Eleventh Circuit

Docket: 20-13973

Opinion Date: November 29, 2023

Judge: JILL PRYOR

Areas of Law: Constitutional Law, Criminal Law

After the Eleventh Circuit affirmed the convictions of Kendrick Eugene Duldulao and Medardo Queg Santos for the roles they played in a Florida “pill mill,” the Supreme Court vacated the court’s judgment and remanded for further consideration in light of Ruan v. United States.
 
The Eleventh Circuit affirmed Duldulao’s conviction on count one of the second superseding indictment; affirmed Santos’s conviction on count one, vacated Santos’s convictions on counts seven, eight, and nine, vacated Santos’s sentence, remanded for resentencing, and remanded for a new trial on counts seven, eight, and nine. The court explained that in the context of sentencing errors, the Supreme Court has explained that “the risk of unnecessary deprivation of liberty particularly undermines the fairness, integrity, or public reputation of judicial proceedings” when the court is responsible for the error. The court explained it has repeatedly upheld jury instructions that misstated the mens rea requirement under Section 841. A jury then convicted Santos based in part on that misstatement. Santos received a prison sentence on these counts, and “the possibility of additional jail time . . . warrants serious consideration in a determination whether to exercise discretion under Rule 52(b).” Further, the court explained that the jury was reasonably able to find that the government had not shown beyond a reasonable doubt that Duldulao violated Section 841 on that occasion but had nevertheless knowingly joined a conspiracy to unlawfully distribute controlled substances in the abstract and on other occasions.

White v. Payne

Court: Arkansas Supreme Court

Citation: 2023 Ark. 171

Opinion Date: November 30, 2023

Judge: Rhonda K. Wood

Areas of Law: Constitutional Law, Criminal Law, Government & Administrative Law

The Supreme Court affirmed the judgment of the circuit court dismissing Petitioner's petition for a writ of habeas corpus, holding that the circuit court did not err in concluding that Petitioner had failed to state a ground for the writ.

Petitioner pled guilty to rape and aggravated robbery and was sentenced as a habitual offender. In his habeas corpus petition, Petitioner alleged that he was innocent of the offense of rape, that the State maliciously applied the habitual offender statute in violation of the Eighth Amendment, and that the Arkansas statute requiring that he serve 100 percent of his sentence was unconstitutional. The circuit court found that the claims were not cognizable in habeas and noted that parole eligibility falls within the domain of the executive branch. The Supreme Court affirmed, holding that the circuit court did not err.

People v. Curiel

Court: Supreme Court of California

Docket: S272238

Opinion Date: November 27, 2023

Judge: Guerrero

Areas of Law: Civil Rights, Constitutional Law, Criminal Law

The Supreme Court affirmed the decision of the court of appeals reversing the judgment of the trial court denying Petitioner's petition for relief and resentencing under the new procedure set forth in Senate Bill No. 1437 (former Cal. Penal Code 1170.95, subd. (a); now Cal. Penal Code 1172.6, subd. (a)), holding that the trial court erred.

Petitioner was convicted of first degree murder and sentenced to life imprisonment without the possibility of parole. Twelve years later, the Legislature enacted Senate Bill 1437 narrowing or eliminating certain forms of accomplice liability for murder. Petitioner petitioned for relief and resentencing under the new procedure, but the trial court denied the petition for failure to state a prima facie case. The court of appeals reversed. The Supreme Court affirmed, holding that the trial court erred in rejecting Petitioner's prima facie showing and should have proceeded to an evidence hearing on Petitioner's resentencing petition.

California v. Foley

Court: California Courts of Appeal

Docket: C097140(Third Appellate District)

Opinion Date: November 29, 2023

Judge: Mesiwala

Areas of Law: Constitutional Law, Criminal Law, Legal Ethics

The trial court appointed the same attorney (counsel) to represent defendant Mark Foley and Raymond Gladden, who had been a codefendant in the underlying criminal trial, at a consolidated evidentiary hearing after both had filed separate petitions for resentencing. Both men were not the actual killer, but both had been convicted of murder on a felony-murder theory. At the hearing, to save the murder convictions, the prosecution was required to prove that defendant’s and Gladden’s individual participation in the underlying felony of kidnapping made them major participants in the kidnapping and that they acted with reckless indifference to human life. The prosecution argued those elements were satisfied for defendant and Gladden. Counsel then argued factors she considered favorable to defendant and also argued factors favorable to Gladden. But the same factors did not favor both, and counsel stated Gladden “certainly [had] the stronger petition.” The court granted Gladden’s petition only. The Court of Appeal reversed the denial of defendant’s petition because the court violated defendant’s constitutional right to conflict-free representation. The case was remanded for a new evidentiary hearing.

California v. Turner

Court: California Courts of Appeal

Docket: E079183(Fourth Appellate District)

Opinion Date: November 28, 2023

Judge: Carol D. Codrington

Areas of Law: Constitutional Law, Criminal Law

The trial court here dismissed a violent felony charge filed against defendant-respondent Brian Turner for the third time, finding that the two prior dismissals did not result from any excusable neglect. The Riverside County District Attorney appealed. If a charge for a violent felony has been dismissed twice, Penal Code section 1387.1 authorized prosecutors to refile the charge for a third time so long as one of the dismissals was “due solely to excusable neglect . . . on the part of the court, prosecution, law enforcement agency, or witnesses,” and the prosecution did not act in bad faith. Because the first dismissal was due to the trial court’s excusable neglect, the Court of Appeal reversed.

California v. Velasco

Court: California Courts of Appeal

Docket: D081230(Fourth Appellate District)

Opinion Date: November 29, 2023

Judge: Huffman

Areas of Law: Constitutional Law, Criminal Law

Appellant Robert Velasco, who was serving a sentence for attempted home invasion robbery, assault with a firearm, and possession of a firearm by a felon, was identified as eligible for resentencing pursuant to California Senate Bill No. 483 (2021-2022 Reg. Sess., codified at Penal Code section 1172.75). At a September 2022 resentencing hearing, Velasco’s attorney made an oral motion to strike Velasco’s one year prison prior enhancement, which had been imposed pursuant to section 667.5(b) and did not involve a sexually violent offense. Velasco was not present at the hearing and, although the minute order reflected his presence was waived, the record did not contain a written waiver. The trial court granted the request, struck the enhancement, and resentenced Velasco to a total term of 26 years and four months. Neither counsel nor the court addressed whether other new sentencing laws might impact Velasco’s sentence or whether postconviction factors should influence the new sentence. Velasco argued on appeal the trial court abused its discretion by not conducting a full resentencing hearing as was required by section 1172.75. He further contended the trial court violated his federal and state constitutional rights by holding a resentencing hearing in his absence without a valid waiver. The State argued the trial court lacked jurisdiction to conduct this resentencing hearing at all because Velasco’s case was already on appeal before the Court of Appeal in case No. D080603. However, should the appeals court determine that the trial court had jurisdiction, the State conceded remand was warranted because Velasco did not waive his presence at the resentencing hearing. The Court concluded the trial court had jurisdiction to resentence Velasco pursuant to section 1172.75 but reversed and remanded for a new hearing on the grounds that Velasco was not present at the sentencing hearing and did not validly waive his presence.

In re Banks

Court: California Courts of Appeal

Docket: C098247(Third Appellate District)

Opinion Date: November 27, 2023

Judge: Mesiwala

Areas of Law: Constitutional Law, Criminal Law

In July 2020, a correctional sergeant was processing mail in the prison mailroom and searched two large manila envelopes addressed to inmate Arlonzo Banks. The sergeant intercepted the envelopes in the prison mailroom, and inmate Banks was issued a rules violation report charging him with conspiracy to introduce a controlled substance into prison for distribution or sale. During the investigation, inmate Banks tried to ask the sergeant who issued the rules violation report, "'What, if any, evidence demonstrates I agreed with another individual to introduce a controlled substance into the facility?'" The hearing officer deemed the question irrelevant, but the Court of Appeals found Banks’s question was "spot on:" the record contained no evidence of the first element of conspiracy, namely, the existence of an agreement between at least two persons. The Court therefore affirmed the trial court’s grant of inmate Banks’s petition for writ of habeas corpus that vacated a guilty finding of conspiracy.

In re Koenig

Court: California Courts of Appeal

Docket: C098893(Third Appellate District)

Opinion Date: November 28, 2023

Judge: Renner

Areas of Law: Constitutional Law, Criminal Law

James Koenig petitioned the California Supreme Court for a writ of habeas corpus, returnable to the Court of Appeal. Koenig contended the Department of Corrections and Rehabilitation (Department) and the Board of Parole Hearings erred in denying his request for nonviolent offender early parole consideration under Proposition 57, The Public Safety and Rehabilitation Act of 2016. Koenig was sentenced in July 2013 to an aggregate term of 42 years eight months in prison: (1) a 12-year principal term on one count of sale by a false statement consisting of five years plus a three-year enhancement for multiple fraudulent felonies and a four-year enhancement for taking property in excess of $3.2 million; (2) 28 one-year consecutive subordinate terms on 28 counts of sale by a false statement; and (3) 2 one-year and four-month consecutive subordinate terms for two counts of first degree burglary. The court imposed and stayed under Penal Code section 654 sentences for one count of fraudulent use of a scheme, one count of conspiracy, and two counts of sale by false statement. Koenig contended was eligible for early parole consideration because he served the full term of his primary offense—as defined by Proposition 57—and also “the violent offense portion of his total sentence.” The Court of Appeal concluded Koenig was not being unconstitutionally excluded from early parole consideration because he was convicted of and sentenced for violent felony offenses, and he was serving a term for these violent felonies throughout his aggregate term. "The fact he has completed the full term for his primary, nonviolent offense within the meaning of
Proposition 57 is insufficient to render him eligible for early parole consideration." His petition for habeas relief was denied.

P. v. Hollie

Court: California Courts of Appeal

Docket: B321325(Second Appellate District)

Opinion Date: November 28, 2023

Judge: PERLUSS

Areas of Law: Constitutional Law, Criminal Law

Defendant was convicted following a jury trial in 2004 of first-degree murder and robbery arising from a shooting death and attempted murder and a second count of robbery based on two separate incidents on June 30, 2022. In January 2020, the superior court granted Defendant’s petition for resentencing pursuant to Penal Code section 1172.6 expressly finding Defendant had been a major participant in the robbery but not the actual shooter and impliedly finding he did not act with reckless indifference to human life during the robbery. The court vacated the murder conviction, resentenced Defendant on the remaining three convictions and ordered him released from custody based on time served. Defendant petitioned pursuant to section 851.8 for a finding of actual innocence, arguing as evidence of his innocence that the victim’s companion, the only eyewitness to the robbery-murder, had not identified Defendant as a participant in the crime and that the prosecutor had withheld exculpatory evidence in violation of Brady v. Maryland (1963) 373 U.S. 83. The superior court denied the petition. On appeal, Defendant argued the order vacating his murder conviction under section 1172.6 necessarily entitled him to a finding of factual innocence.
 
The Second Appellate District affirmed. The court held that Defendant’s successful section 1172.6 petition did not entitle him to a finding of factual innocence. The court explained that an order granting Defendant’s petition for resentencing does not mean, without more, Defendant is factually innocent of the crime of murder. The court noted that the record must exonerate, not merely raise a substantial question as to guilt.

Zarate v. McDaniel

Court: California Courts of Appeal

Docket: B318273(Second Appellate District)

Opinion Date: November 27, 2023

Judge: LAVIN

Areas of Law: Civil Procedure, Constitutional Law

This is the second appeal arising out of Defendant’s special motion to strike the complaint filed by Plaintiffs.  In the first appeal, the Second Appellate District affirmed the trial court’s order denying Defendant’s anti-SLAPP motion, concluding that Defendant failed to show Plaintiffs’ claims arose out of protected activity because he filed only a “perfunctory antiSLAPP motion.” In this appeal, Defendant challenges the fee award.
 
The Second Appellate District reversed and remanded the matter with directions for the court to enter a new order denying plaintiffs’ attorney fees motions. The court wrote that Plaintiffs don’t contend that it would have been impractical for them to provide Defendant safe harbor notice before filing their attorney fees motions. Indeed, Plaintiffs’ motions were not complex and include less than a single page of analysis explaining why Defendant’s anti-SLAPP motion was frivolous. Nor do Plaintiffs contend that Defendant could not have withdrawn or corrected his anti-SLAPP motion had they provided him timely notice of their attorney fees motions under section 128.5, subdivision (f). The court explained that the trial court should have denied Plaintiffs’ attorney fees motions because they failed to provide Defendant a 21-day safe harbor notice before filing their attorney fees motions.

People v. Agee

Court: Supreme Court of Illinois

Citation: 2023 IL 128413

Opinion Date: November 30, 2023

Judge: Neville

Areas of Law: Civil Rights, Constitutional Law, Criminal Law

In 2010, Agee strangled his girlfriend, Davis, during a physical altercation. He went directly to the police station and voluntarily made a statement, which was recorded on video. Agee did not realize that Davis had died and expressed concerns that she would be okay. Agee pled guilty to first-degree murder and was sentenced to 25 years.

Agee filed a pro se post-conviction petition, alleging ineffective assistance of counsel for failing to seek an expert to testify as to his mental health. Postconviction counsel was appointed and filed an amended petition adding a claim that trial counsel was ineffective for failing to advise Agee that he could pursue a second-degree defense murder at trial. The court dismissed the amended petition. Agee appealed, arguing that postconviction counsel erroneously failed to allege all the elements of a second-degree murder claim. The appellate court affirmed, reasoning that Rule 651(c), requiring reasonable assistance of postconviction counsel, does not require “any level of representation in the presentation of new claims.”

The Illinois Supreme Court affirmed. The appellate court erred in finding that Rule 651(c) does not require any level of representation in the presentation of added claims in an amended pro se postconviction petition but Agee failed to demonstrate that postconviction counsel failed to make amendments to the pro se petition as necessary for an adequate presentation of his claims. He cannot show deficient performance. The record rebuts Agee’s claims about a second-degree murder defense.

People v. Montanez

Court: Supreme Court of Illinois

Citation: 2023 IL 128740

Opinion Date: November 30, 2023

Judge: Overstreet

Areas of Law: Civil Rights, Constitutional Law, Criminal Law

Montanez was convicted based on the 2002 murder of Villalobos and Ramirez. The court sentenced him to mandatory natural life for two first-degree murder convictions, a 20-year consecutive sentence for an aggravated vehicular hijacking conviction, and a 27-year consecutive sentence for an aggravated kidnapping conviction.

Montanez challenged the denial of his request for leave to file a successive postconviction petition. He sought to raise a claim that the prosecution violated “Brady” by failing to disclose evidence relevant to his defense that was stored in a file in the basement of the Chicago Police Department and was discovered after his convictions. Montanez claims that although he became aware of the file during his first postconviction proceedings (which included 46 constitutional claims) he was unable to obtain the file during those proceedings to establish that it contained material that would have been helpful to his defense.

The Illinois Supreme Court affirmed the denial. In addition to failing to raise a Brady violation claim based on the entirety of the CPD file in his proposed successive petition, Montanez’s attempt to raise this claim on appeal was barred by res judicata. Montanez’s motion for leave to file a successive postconviction petition falls short of demonstrating that the procedural hurdles for filing a successive petition should be lowered in this case.

People v. Roland

Court: Supreme Court of Illinois

Citation: 2023 IL 128366

Opinion Date: November 30, 2023

Judge: Cunningham

Areas of Law: Civil Rights, Constitutional Law, Criminal Law

Roland, filed a pro se postconviction petition alleging he received ineffective assistance of counsel during his bench trial for a 2002 attempted murder when his attorney failed to present evidence of his mental health history. After a pre-trial evaluation, Roland had been found fit to stand trial. The expert determined he was legally sane at the time of the offense but that he may have been experiencing symptoms of a depressive mood disorder that was likely exacerbated by alcohol and illegal substances. At trial, Roland testified to having attempted suicide in jail and that he fired a gun while being chased by police because he had wanted police to shoot and kill him.

After the petition was advanced to the second stage of proceedings, it was dismissed. The appellate court reversed and remanded for a third-stage evidentiary hearing. The Illinois Supreme Court reinstated the dismissal. It is not reasonably likely that further evidence of Roland’s mental health history would have changed the trial court’s determination that Roland’s conduct during the shooting did not demonstrate that he wanted to commit suicide by police; the court noted that he fled from the police, taking evasive measures to avoid being shot. Roland’s postconviction petition failed to satisfy the prejudice prong of “Strickland.”

People v. Webb

Court: Supreme Court of Illinois

Citation: 2023 IL 128957

Opinion Date: November 30, 2023

Judge: Rochford

Areas of Law: Civil Rights, Constitutional Law, Criminal Law

Sergeant Albee saw a truck pulling a partially loaded car hauler semitrailer with no driver’s side markings indicating the company name or the DOT number required by federal regulations. The hauler was only partially loaded, which Albee found unusual; no registration was displayed on the trailer. During the subsequent traffic stop, Webb displayed “a state of panic” and had no organized documentation. He volunteered that he had been stopped several times and that the vehicle had been checked for drugs. Albee found that statement “bizarre.” Webb gave Albee a cab card that was Illinois apportioned, but the displayed license plate was from California. Albee performed a free air sniff test with his canine partner. After a positive alert on the trailer, a search revealed an unlicensed firearm and 2736 grams of cannabis–street value $40,000.

Webb was convicted of cannabis trafficking, possession of cannabis with intent to deliver, and possession of cannabis. The appellate court and Illinois Supreme Court affirmed, rejecting Webb’s argument that his counsel was ineffective for failing to move to suppress the cannabis on the basis that the positive canine alert, without more, was not sufficient to establish probable cause following changes to Illinois cannabis legislation. Albee relied on more than the dog sniff. The totality of the facts and circumstances justified a reasonable person in believing that the vehicle contained contraband or evidence of criminal activity.

Cities Management, Inc. v. Commissioner of Revenue

Court: Minnesota Supreme Court

Docket: A23-0222

Opinion Date: November 22, 2023

Judge: Moore

Areas of Law: Business Law, Constitutional Law, Government & Administrative Law, Tax Law

The Supreme Court affirmed the decision of the Minnesota Tax Court affirming the assessment of the Commissioner of Revenue assessing tax on an apportioned share of Cities Management, Inc.'s (CMI) income from the sale of the S corporation, holding that the income from the corporation's sale was apportionable business income.

CMI, which did business in Minnesota and Wisconsin, and its nonresidential partial owner filed Minnesota tax returns characterizing the sale of CMI's goodwill as income that was not subject to apportionment by the State under Minn. Stat. Ann. 290.17. The Commissioner disagreed and assessed tax on an apportioned share of the corporation's income from the sale. The tax court affirmed. The Supreme Court affirmed, holding that CMI's income did not constitute "nonbusiness" income under section 290.17, subd. 6 and may be constitutionally apportioned as business income.

Matter of Didier

Court: North Dakota Supreme Court

Citation: 2023 ND 218

Opinion Date: November 24, 2023

Judge: Jerod E. Tufte

Areas of Law: Constitutional Law, Government & Administrative Law

Lawrence Didier appealed an order and judgment denying his discharge from civil commitment. Between 1988 and 2008, Didier was convicted of gross sexual imposition and indecent exposure, and was twice convicted of sexual assault. After a State petition, the district court ordered Didier committed as a sexually dangerous individual in November 2010 under N.D.C.C. ch. 25-03.3. Didier petitioned for an annual review hearing under N.D.C.C. § 25-03.3-18 seeking discharge from commitment. Dr. Deirdre D’Orazio, Ph.D., a doctor of clinical and forensic psychology, submitted a report for the North Dakota State Hospital stating her expert opinion was that Didier remained a sexually dangerous individual. The district court held a hearing and subsequently issued an order and judgment denying Didier’s petition for discharge from civil commitment. After review, the North Dakota Supreme Court concluded the trial court's finding by clear and convincing evidence that Didier had serious difficulty controlling his behavior based on both his past and present conduct was not clearly erroneous, and was supported by the record. Accordingly, the distric court's order and judgment were affirmed.

North Dakota v. Brame

Court: North Dakota Supreme Court

Citations: 2023 ND 121, 2023 ND 213

Opinion Date: November 24, 2023

Judge: Jensen

Areas of Law: Constitutional Law, Criminal Law

Charles Brame pleaded guilty to two counts of sexual assault. On appeal, Brame sought to withdraw his guilty pleas because the district court failed to explicitly ask him whether he was entering his plea voluntarily or whether his plea resulted from force, threats, or promises. "A Rule 11 error does not automatically lead to reversal." The North Dakota Supreme Court concluded that a defendant who failed to first raise the alleged error at the district court must show a Rule 11 violation’s impact on substantial rights before the Court will undo a guilty plea. Because Brame did not show the alleged violation had an impact on his substantial rights, the Court affirmed the judgment.

North Dakota v. Curtis

Court: North Dakota Supreme Court

Citation: 2023 ND 223

Opinion Date: November 24, 2023

Judge: Lisa K. Fair McEvers

Areas of Law: Constitutional Law, Criminal Law, White Collar Crime

Danial Curtis was convicted of the unauthorized use of personal identifying information. At trial, a bank teller testified Curtis entered the bank where she worked producing a check for cashing. The teller noticed several "red flags" on the check; her manager testified to noticing the same red flags. The manager contacted the account holder to inquire if the check was authorized; the account holder testified she had thrown out any checks she had remaining once she closed the account. Representing himself, Curtis called a friend who testified Curtis was not attempting to cash the check, but was only attempting to see if the check was valid. Based on the evidence presented, the district court found beyond a reasonable doubt Curtis willfully presented the check to cash, and found Curtis guilty of the unauthorized use of personal identifying information "to obtain money without the authorization of consent of the holder of the account, and the value of the money exceeded $1,000." On appeal, Curtis argued there was insufficient information presented to support his conviction. Finding no reversible error, the North Dakota Supreme Court affirmed Curtis' conviction.

North Dakota v. Geiger

Court: North Dakota Supreme Court

Citation: 2023 ND 222

Opinion Date: November 24, 2023

Judge: Jensen

Areas of Law: Constitutional Law, Criminal Law

David Geiger was convicted by jury of stalking. The victim testified she was an employee at a bank where Geiger was a customer. The victim, in conjunction with other bank employees, decided to close out Geiger’s account after what the victim described as abusive conduct by Geiger towards bank employees. Geiger was informed of the closure and instructed to collect the remaining funds in his account through the drive-up window. The victim and other employees then observed Geiger sitting in his car across the street. Due to concerns surrounding this behavior, bank staff contacted law enforcement to escort staff from the building to their vehicles at closing. Later that same night, the victim received a phone call to her personal phone, verified by law enforcement as having been placed from a phone belonging to Geiger. Upon answering the call, the victim’s husband said “hello” several times, but there was no response. These incidents served as grounds for the stalking charge. On appeal, Geiger argued the district court failed to make a mandatory determination regarding whether the conduct he was alleged to have engaged in was constitutionally protected. He further argued the evidence presented at trial was insufficient to support the jury’s verdict of guilty. Finding no reversible error, the North Dakota Supreme Court affirmed.

North Dakota v. Nelson

Court: North Dakota Supreme Court

Citation: 2023 ND 217

Opinion Date: November 24, 2023

Judge: Daniel J. Crothers

Areas of Law: Constitutional Law, Criminal Law, White Collar Crime

Carolyn Nelson appealed her conviction from a bench trial for the crime of accomplice to theft. Nelson was the president of the Oberon School Board. Laura Schnieber-Bruns and her business, Victim Survivor the Voice, LLC, were engaged to perform services for the school. The exact nature of the services was disputed, but an agreement signed by Nelson and Schnieber-Bruns described the work as “investigate, research, compile and deliver ongoing actions request of the Oberon School Board.” The agreement specified a “set-up fee” of $7,500, an “on-going management” fee of $7,500, and a $200 hourly rate for “services outside the scope of this Agreement.” Schnieber-Bruns was later charged with class A felony theft for taking more than $150,000 from the Oberon School “through a deceptive scheme pursuant to” the agreement. She pleaded guilty by an Alford plea. Nelson challenged her conviction as an accomplice. The North Dakota Supreme Court affirmed, concluding the evidence was sufficient to sustain the conviction. The Court declined to address issues Nelson did not raise at the district court or brief on appeal under the obvious error standard of review.

North Dakota v. Richter

Court: North Dakota Supreme Court

Citation: 2023 ND 221

Opinion Date: November 24, 2023

Judge: Daniel J. Crothers

Areas of Law: Constitutional Law, Criminal Law

Eli Richter appealed an order deferring imposition of a sentence imposed after a jury found him guilty of the unlawful use of an operator's license. The State charged Richter with the unlawful use of the license, alleging he showed a counterfeit Minnesota driver's license to a police officer in Grand Forks, North Dakota. At trial, the officer testified the "license was nonexistent or it was never issued through any state." At the close of the State's case, Richter moved to acquittal, arguing "the definition [of operator's license] stats an operator's license is issued or granted by the laws of this state. The ID that was taken from Mr. Richter is not issued under the laws of this state. It does not meet the definition, Your Honor." The district court denied the motion and the jury ultimately found Richter guilty. The North Dakota Supreme Court concurred: N.D.C.C. § 39-06-40 made it a crime to display a fictitious license.

North Dakota v. Steele

Court: North Dakota Supreme Court

Citation: 2023 ND 220

Opinion Date: November 24, 2023

Judge: Douglas A. Bahr

Areas of Law: Constitutional Law, Criminal Law

Ashton Steele appealed after conditionally pleading guilty to delivery of a controlled substance and possession with intent to manufacture or deliver a controlled substance. The plea reserved the right to appeal the denial of a motion to suppress evidence. After review of the trial court record, the North Dakota Supreme Court concluded Steele had a reasonable expectation of privacy in the rented bedroom and a reasonable officer would not have believed the homeowner could consent to a search of the bedroom. Accordingly, the judgment was reversed and the case remanded for further proceedings.

League of Women Voters of Ohio v. Ohio Redistricting Comm'n

Court: Supreme Court of Ohio

Citation: 2023-Ohio-4271

Opinion Date: November 27, 2023

Judge: Per Curiam

Areas of Law: Constitutional Law, Election Law, Government & Administrative Law

In this case addressing the General Assembly districting plan adopted by the Ohio Redistricting Commission in September 2023 the Supreme Court granted motions to dismiss brought by Petitioners, who filed motions for leave to file objections instanter to the plan and denied motions to vacate and for leave to file objections, holding that dismissal was warranted.

The Commission adopted a new redistricting plan in September 2023 by a unanimous vote. Petitioners moved for leave to file objections. Respondents, members of the Commission, moved to dismiss the cases and to vacate the court's orders declaring the districting plan adopted by the General Assembly in September 2021 as unconstitutional. The Supreme Court granted the motions to dismiss, denied the motions to vacate as moot, and denied the motions for leave to file objections to the September 2023 plan, holding that now that the Commission has adopted a plan with bipartisan support, the facts before the Court bore no resemblance to the allegations in Petitioners' complaints.

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