Steven Bangs v. Walter William Smith, et al.

Court: US Court of Appeals for the Second Circuit

Docket: 22-1353

Opinion Date: October 12, 2023

Judge: Debra Ann Livingston

Areas of Law: Criminal Law

New York has a merit time allowance system in which prisoners serving indeterminate sentences for certain non-violent offenses can earn “merit time allowances” to reduce their minimum sentences by one-sixth. Plaintiff claims that New York prison officials revoked his merit time allowance and rescinded his merit-based parole release date without a hearing in violation of his procedural due process rights. The district court dismissed Petitioner's petition, finding that the prison official were entitled to qualified immunity because Petitioner's rights were not clearly established. Petitioner appealed.

Recognizing that Petitioner had a protected liberty interest in his expected release date once it was granted by the Parole Board, the Second Circuit nevertheless concluded that the prison officials are entitled to qualified immunity because Petitioner's rights were not clearly established at the time of the prison officials’ conduct.

Murphy v. Nasser

Court: US Court of Appeals for the Fifth Circuit

Docket: 23-70005

Opinion Date: October 10, 2023

Judge: Leslie H. Southwick

Areas of Law: Constitutional Law, Criminal Law

Plaintiff was convicted of the 2000 murder of an 80-year-old woman. After the jury found him to be guilty of the offense, evidence of his future dangerousness was offered at sentencing. Among the evidence was testimony from the victim of another vicious crime who identified Plaintiff as her attacker. Plaintiff was not tried for that offense. Plaintiff is now seeking DNA testing of evidence from that other crime that he argues could exonerate him. A different district court agreed with a similar argument and declared that Texas must provide testing if a sufficient basis is shown that it would have affected sentencing and not just the finding of guilt. The district court relied on the pendency of a decision in Gutierrez as a reason to grant Plaintiff a stay of execution. The State of Texas sought to vacate the stay of execution.
 
The Fifth Circuit agreed with the district court that a stay is appropriate at least until a decision in that case. The court explained that at that time it will order additional briefing. Accordingly, the court entered no ruling on the motion to vacate the stay at this time. The related appeal has similar issues that could affect the proper resolution in this case. Waiting for that decision is not required by any general procedural rule or by rules of the court. Nonetheless, the court explained that it should wait for that decision unless there is some basis to distinguish the present appeal.

Murphy v. Nasser

Court: US Court of Appeals for the Fifth Circuit

Docket: 23-70005

Opinion Date: October 9, 2023

Judge: Leslie H. Southwick

Areas of Law: Constitutional Law, Criminal Law

Plaintiff was convicted of the 2000 murder of an 80-year-old woman. After the jury found him to be guilty of the offense, evidence of his future dangerousness was offered at sentencing. Among the evidence was testimony from the victim of another vicious crime who identified Plaintiff as her attacker. Plaintiff was not tried for that offense . Plaintiff is now seeking DNA testing of evidence from that other crime that he argues could exonerate him. The State of Texas filed an emergency appeal seeking to vacate a stay of execution entered by the district court. The issue on which the district court decided to enter a stay is whether the inmate is entitled to have DNA testing performed on certain evidence. The district court granted a stay because similar issues were pending before the Fifth Circuit in a case brought by a different Texas prisoner. That related case is fully briefed and has been orally argued, and a decision in the case is pending.
 
The Fifth Circuit agreed with the district court that a stay is appropriate, at least until a decision in that related pending case. The court explained that here the district court order bars Texas officials from carrying out “lawful and important conduct” because it prevents them from performing Plaintiff’s execution. Moreover, the district court’s order does not operate on the judicial proceeding but restricts the actions of specific defendants. That is the function of an injunction.  The court entered no ruling on the motion to vacate the stay at this time. Therefore, the stay of execution will remain in effect.

USA v. Greenlaw

Court: US Court of Appeals for the Fifth Circuit

Docket: 22-10511

Opinion Date: October 11, 2023

Judge: Carl E. Stewart

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

A jury convicted United Development Funding (“UDF”) executives (collectively “Appellants”) of conspiracy to commit wire fraud affecting a financial institution, conspiracy to commit securities fraud, and eight counts of aiding and abetting securities fraud. Jurors heard evidence that Appellants were involved in what the Government deemed “a classic Ponzi-like scheme,” in which Appellants transferred money out of one fund to pay distributions to another fund’s investors without disclosing this information to their investors or the Securities Exchange Commission (“SEC”). Appellants each filed separate appeals, challenging their convictions on several grounds. Considered together, they argue that (1) the jury verdict should be vacated because the evidence at trial was insufficient to support their convictions or, alternatively, (2) they are entitled to a new trial because the jury instructions were improper. Appellants also argue that the district court erred in (3) limiting cross-examination regarding a non-testifying government informant; (4) allowing the Government to constructively amend the indictment and include certain improper statements in its closing argument; (5) imposing a time limit during.
 
The Fifth Circuit affirmed the jury verdict in its entirety. The court explained that considering the evidence and drawing all reasonable inferences in the light most favorable to the verdict, a reasonable juror could have determined that Appellants made material misrepresentations in UDF III and UDF V’s filings that were sufficient to uphold their convictions. The court explained that multiple witnesses testified that the industry had shifted away from affiliate transactions because they were disfavored and that a no-affiliate-transaction policy in UDF V would enable it to participate in a larger network of brokers, dealers, and investors.

Perez v. Simpson

Court: US Court of Appeals for the Sixth Circuit

Docket: 23-5193

Opinion Date: October 11, 2023

Judge: Thapar

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

Officers Simpson and Patrick drove to Perez’s house to execute seven felony arrest warrants. Simpson approached Perez behind the house. After a brief exchange, Perez bolted. Perez wove her way through the neighborhood—including across a two-way street—in a chase the length of two football fields. Patrick ordered her to stop. Perez did not comply. Patrick fired his taser but missed. Perez kept fleeing, heading toward another two-lane street, intending to cross. A row of moving cars stood in her way, so she stopped. Perez alleges she raised her hands and stood still, expecting to be handcuffed. Patrick claims she did not raise her hands and instead took off running. Patrick made the split-second decision to fire his taser again. It connected. Perez fell forward and hit her chin on the ground, fracturing her jaw. She later pled guilty to evading police and resisting arrest.

Perez filed suit under 42 U.S.C. 1983, alleging excessive force. The district court denied Patrick’s request for summary judgment on qualified immunity grounds. The Sixth Circuit dismissed for lack of jurisdiction to review the denial of summary judgment, 28 U.S.C. 1291, where the decision depended on issues of fact.

United States v. Lundy

Court: US Court of Appeals for the Sixth Circuit

Docket: 22-3686

Opinion Date: October 10, 2023

Judge: Thapar

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

Alyssa was visiting her friend when Lundy, intoxicated forced his way into the house. A neighbor called 911 after hearing “a woman crying” and someone “being thrown around.” Lundy left before officers arrived. The women stated that Lundy left in a red Pontiac. Officers, looking for Lundy, received another call. Lundy had returned with a gun. Officer Martin returned to the house in about two minutes, activated his bodycam, and recorded the women saying that Lundy pointed the gun at them, loaded it, and threatened to kill them in front of Alyssa and Lundy’s young children. Officer Brown found Lundy near the house and looked through the window of the red Pontiac. A loaded pistol sat on the passenger’s seat. During booking, Lundy stated that he’d take the gun charge because “it’s mine.”

Lundy was convicted of possessing a firearm as a felon, 18 U.S.C. 922(g)(1), 924(a)(2). The prosecution introduced Martin’s bodycam footage and Martin’s testimony about that conversation. Lundy argued that because Alyssa did not testify, her out-of-court statement was barred. The Sixth Circuit upheld the admission of that evidence. The excited-utterance exception applied because there was an event startling enough to cause nervous excitement, the statement was made before there was time to contrive or misrepresent, and the statement was made while Alyssa was under the stress of the excitement caused by the event. The statement was nontestimonial, and the Confrontation Clause does not apply.

United States v. Schumaker

Court: US Court of Appeals for the Sixth Circuit

Docket: 21-6250

Opinion Date: October 12, 2023

Judge: Mathis

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

In 2016, Schumaker pleaded guilty as a felon in possession of a firearm. Schumaker had 14 prior convictions for Tennessee aggravated burglary, involving separate structures, occurring on 13 different dates. In 2017, the Sixth Circuit held that Tennessee aggravated burglary was not a violent felony and did not qualify as an Armed Career Criminal Act (ACCA), 18 U.S.C. 924(e) predicate offense. The district court sentenced Schumaker to 54 months’ imprisonment in 2020. While the government’s appeal was pending, the Supreme Court held that Tennessee aggravated burglary qualified as an ACCA predicate offense. Schumaker then argued that his prior offenses “did not occur on separate occasions” under ACCA. The Sixth Circuit rejected his argument after considering the charging documents.

On remand, Schumaker cited the Supreme Court’s 2022 grant of certiorari in “Wooden” and unsuccessfully argued that, in conducting the occasions-different inquiry, the Fifth and Sixth Amendments prohibited the court from relying on the dates and locations of the aggravated-burglary offenses found in the judgments associated with those convictions because the dates and locations are non-elemental facts that the government had to prove to a jury. The Sixth Circuit affirmed. The limited remand required the district court to sentence Schumaker under the ACCA. Circuit precedent bars Schumaker’s argument that the non-elemental facts in Shepard documents must be charged in an indictment and found by a jury before a court may rely on those facts in the occasions-different inquiry.

Alcorn v. City of Chicago

Court: US Court of Appeals for the Seventh Circuit

Docket: 22-2948

Opinion Date: October 12, 2023

Judge: Frank Hoover Easterbrook

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

Lumar caused a disturbance at a Chicago clinic. Called to the scene, police discovered that Lumar was wanted on an arrest warrant and took him into custody. About 19 hours later he committed suicide. His estate’s suit under 42 U.S.C. 1983 argued that Lumar should have been released without a bond hearing, and, had he been released swiftly, Lumar would not have killed himself.

The Seventh Circuit affirmed the rejection of the suit. While the warrant set bond at an amount Lumar could have posted, it had been issued in Lee County, so a local order required a local bond hearing. Even if the order is inconsistent with state law, in denying arrestees the right to waive local bond hearings, a violation of state law does not permit an award under section 1983. Federal law does not prohibit presenting the arrestee to a local judge, within a reasonable time not to exceed 48 hours. The time Lumar spent in custody, including six hours in a hospital to address breathing problems, and the discovery of 12 rocks of crack cocaine in his cell and ensuing return to the Police Department, was reasonable under the standard set by the Supreme Court. Lumar was screened for suicide risk shortly after his arrest and again at the hospital. Illinois law offers a remedy for suicide during custody only if the jailers do something that makes suicide foreseeable.

Whitaker v. Dempsey

Court: US Court of Appeals for the Seventh Circuit

Docket: 23-1086

Opinion Date: October 10, 2023

Judge: Diane Pamela Wood

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

Whitaker, an Illinois prisoner, had $573 when he filed a notice of appeal in his Section 1983 lawsuit; he subsequently spent most of his money at the prison commissary and on postage. The district court denied his request to proceed in forma pauperis, 28 U.S.C. 1915(a)(1).

The Seventh Circuit reversed. The district court did not adequately consider the Prison Litigation Reform Act (PLRA) balance between the need to collect fees and a prisoner’s discretionary use of his funds. The PLRA mandates that a court apply a statutory formula and collect an initial partial filing fee, then collect the remainder of the fees in installments. Whitaker had enough money to pay the fees in full when they were due and when this court sent him a notice informing him as much but the statute does not mandate that prisoners prioritize their filing fees above all other expenses. Drawing the line for in forma pauperis eligibility at the mere ability to pay the full fee can lead to odd, unintended results. There is nothing suggesting that Whitaker deliberately depleted his account to avoid payment. Whitaker should be permitted to prepay the prescribed portion of the fee with the rest to be collected from his future income, as Congress envisioned.

United States v. Arondo Harris

Court: US Court of Appeals for the Eighth Circuit

Docket: 22-1106

Opinion Date: October 11, 2023

Judge: STRAS

Areas of Law: Constitutional Law, Criminal Law

Defendant used fake deeds to gain possession of three houses. On appeal, Defendant challenged the loss calculation but began by disputing the sufficiency of the evidence underlying his identity theft convictions.
 
The Eighth Circuit affirmed in part, reversed in part, and remanded. Defendant argued that the government said too much in the closing argument. According to Defendant, two of the prosecutor’s statements qualify. The court explained that the prosecutor’s comment was a fleeting reference that immediately followed an accurate statement of the government’s burden—proof beyond a reasonable doubt— and the district court repeatedly instructed the jury that the burden was on the government.
 
However, the court explained that while Defendant’s convictions stand, his 41-month sentence cannot. For identity theft and other property crimes, the recommended sentencing range depends in part on the amount of the “actual” or “intended” losses from the crime. Defendant ended up with a total offense level of 22 and a range of 41 to 51 months in prison. The court explained that on remand, the district court must adopt “a reasonable estimate of the” fair market value at the time of the transfer, either by using a measure that reflects the value at that point or by accounting for Defendant’s post-fraud improvements and market changes during the intervening period.

United States v. Lamar Bertucci

Court: US Court of Appeals for the Eighth Circuit

Docket: 23-1513

Opinion Date: October 10, 2023

Judge: ARNOLD

Areas of Law: Constitutional Law, Criminal Law

After Defendant violated the conditions of his supervised release, the district court sentenced him to 24 months in prison even though the Sentencing Guidelines recommended 5–11 months. He maintains that the district court failed to explain the sentence adequately and imposed a substantively unreasonable sentence.
 
The Eighth Circuit affirmed. The court explained that when explaining a sentence, a court need only set forth enough to satisfy us that it considered the parties' arguments and had a reasoned basis for exercising its legal decision-making authority. The district court provided ample reason for imposing an upward variance, including the fact that Defendant stayed at the sober-living house only briefly, previously received leniency, frequently violated court orders, and absconded for months on end. The court explained that the court isn't required to discuss or recite each statutory sentencing consideration before imposing a sentence; when, as here, the court mentions some of them, we presume it is aware of them all.

United States v. Nicholas Jackson

Court: US Court of Appeals for the Eighth Circuit

Docket: 22-3666

Opinion Date: October 11, 2023

Judge: LOKEN

Areas of Law: Constitutional Law, Criminal Law

Defendant, a native and resident of Iowa, was convicted in the United States District Court for the District of Columbia of possessing child pornography. He was sentenced to 120 months imprisonment and 240 months supervised release. In January 2022, the district court revoked supervised release after Defendant admitted to viewing pornography on computers at public libraries in Des Moines, which violated conditions of his supervised release and Iowa Sex Offender Registry requirements. The court imposed a revocation sentence of 14 months imprisonment followed by 19 years of supervised release. The district court revoked supervised release and imposed a revocation sentence of 24 months imprisonment followed by 19 years supervised release. Defendant appealed, arguing the revocation sentence is substantively unreasonable.
 
The Eighth Circuit affirmed. The court explained that the district court expressly acknowledged Defendant’s need for sex offender treatment and agreed to recommend that Defendant be confined in a BOP facility that has treatment programming. The court considered the relevant 18 U.S.C. Section 3553(a) sentencing factors and carefully explained its decision to give greater weight to protecting the community from a high-risk offender with a long criminal history that included hands-on sexual abuse of young children than to the possibility that the needed treatment would be less available or less effective in prison. Accordingly, the court held that the district court did not abuse its discretion.

United States v. Orlando Gray

Court: US Court of Appeals for the Eighth Circuit

Docket: 22-3294

Opinion Date: October 6, 2023

Judge: James B. Loken

Areas of Law: Criminal Law

Defendant was charged with being a felon in possession of a firearm in July and November 2020 and March 2021. Defendant pleaded guilty to Count 3, admitting he drove a stolen vehicle in March 2021 and was arrested when he fled from the vehicle with two loaded firearms. The government agreed to dismiss the other two counts. Defendant admitted he possessed the firearm on the dates charged in the other counts, which was relevant for sentencing purposes. However, Defendant did not agree with the government's proposed four-level increase because he possessed a firearm “in connection with another felony offense."

At sentencing, the district court overruled Defendant's objection and imposed the four-level increase, resulting in an advisory guidelines sentencing range of 130 to 162 months imprisonment. Defendant appealed his 120-month sentence.

On appeal, the Eighth Circuit disregarded the alleged inaccuracies within the PSR, finding that Defendant waived the issue by failing to object or raise the issue in a timely manner. Considering the undisputed evidence, then, the court found that the district court's position findings were reasonable.

United States v. Robert Shelton

Court: US Court of Appeals for the Eighth Circuit

Docket: 22-3425

Opinion Date: October 6, 2023

Judge: Arnold

Areas of Law: Criminal Law

Defendant was stopped by police, at which point they found narcotics and a BB gun. Defendant later pleaded guilty to possession of a controlled substance with intent to distribute, At sentencing, the district court applied a two-level enhancement under USSG 2D1.1(b)(1) based on Defendant's possession of a BB gun. Defendant appealed.

On appeal, the Eighth Circuit held that the district court did not err in applying a two-level enhancement for possession of a BB gun because the gun qualifies as a dangerous weapon as it is capable of causing serious bodily injury. The question is not whether the BB gun closely resembled an instrument that was capable of inflicting death or serious bodily injury, because the BB gun is actually capable of inflicting death or serious bodily injury.

DOUGLAS CLARK V. RON BROOMFIELD

Court: US Court of Appeals for the Ninth Circuit

Docket: 21-99008

Opinion Date: October 10, 2023

Judge: Sidney R. Thomas

Areas of Law: Constitutional Law, Criminal Law

Petitioner was convicted in 1982 of first-degree murders. He was also convicted of one count of mutilation of human remains and one count of attempted murder and mayhem. The jury found a multiple murder special circumstance allegation and sentenced Petitioner to death. The California Supreme Court reversed Petitioner’s conviction for attempted murder and mayhem and affirmed Petitioner’s murder convictions and death sentence.
 
The Ninth Circuit affirmed the district court’s denial of Petitioner’s petition challenging his California conviction and capital sentence for six counts of first-degree murder. The panel held that Petitioner’s pre-AEDPA October 1992 pro se filing seeking appointment of counsel was not an “actual application” that sought “adjudication” on the merits and that AEDPA applied to the habeas petition filed by appointed counsel in April 1997. The panel held that the California Supreme Court’s decision that Petitioner’s July 1982 pre-trial Faretta request to represent himself was equivocal was not contrary to, or an unreasonable application of, clearly established federal law, as determined by the United States Supreme Court. The panel held that the California Supreme Court’s decision that Clark’s August 1982 Faretta request was untimely was not contrary to, or an unreasonable application of, clearly established federal law, as determined by the United States Supreme Court. The panel held that the district court properly concluded that the California Supreme Court’s opinion holding that Petitioner’s Marsden rights were not violated was not contrary to, or an unreasonable application of, clearly established federal law, as determined by the United States Supreme Court

USA V. JOSHUA SCHEU

Court: US Court of Appeals for the Ninth Circuit

Docket: 22-10044

Opinion Date: October 6, 2023

Judge: Michael Daly Hawkins

Areas of Law: Criminal Law

Defendant entered an open guilty plea to two counts of aggravated sexual abuse of a child in violation of 18 U.S.C. §§ 2241(c), 2246(2) & 1152. The Presentence Investigation Report calculated the sentence using the 2004 version of the Guidelines, applied a downward adjustment for acceptance of responsibility, and added a four-level enhancement because “the victim was abducted.” Defendant objected based on his claim that there was no significant change in locations during or prior to the offense.

The evidence presented showed that Defendant grabbed the victim, put his hands over her mouth, and dragged her 35-40 feet into a cornfield, where he sexually assaulted her. Overruling Defendant's objection, the district court concluded that the forced movement of the victim from the roadside into the cornfield was sufficient to support the abduction enhancement. Defendant appealed.

The Ninth Circuit affirmed. Under the plain language of the text of Sec. 2A3.1(b)(5), the court found that Defendant “abducted” the victim when he forced her from the roadside where he encountered her into a nearby cornfield.

USA V. LUKE SCOTT, SR.

Court: US Court of Appeals for the Ninth Circuit

Docket: 21-30128

Opinion Date: October 6, 2023

Judge: Bennett

Areas of Law: Criminal Law

Defendant filed two appeals with the Ninth Circuit, which were consolidated in a single opinion. Regarding Defendant's felony child abuse case, the court held that the Major Crimes Act granted federal jurisdiction. Although there is no "felony child abuse" statute under federal law, the Major Crimes Act permits prosecutors to charge a defendant in "accordance with the laws of the State in which such offense was committed. Here, Montana Code 45-5-212 provided a sufficient basis for the charge.

Regarding Defendant's aggravated sexual abuse case, the Ninth Circuit adopted the reasoning of the Tenth Circuit, finding that USSG 1B1.1 provides different definitions of “serious bodily injury”—a Harm Definition and a Conduct Definition. Because Defendant made no argument that the district court failed to apply the Harm Definition or that the victim’s injuries resulting from the sexual abuse or from Defendant's other conduct surrounding the offense failed to meet the Harm Definition, Defendant failed to prove the district court erred.

VIRGINIA DUNCAN, ET AL V. ROB BONTA

Court: US Court of Appeals for the Ninth Circuit

Docket: 23-55805

Opinion Date: October 10, 2023

Judge: MURGUIA

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

Plaintiffs—five individuals and the California Rifle & Pistol Association, Inc.—filed this action in the Southern District of California challenging the constitutionality of Section 32310 under the Second Amendment. On September 22, 2023, the district court issued an order declaring Section 32310 “unconstitutional in its entirety” and enjoining California officials from enforcing the law. Defendant Rob Bonta, the Attorney General of California, filed an emergency motion for a partial stay pending appeal. The Attorney General seeks to stay “all portions of the order except those regarding Sections 32310(c) and (d), which relate to large-capacity magazines that were acquired and possessed lawfully prior to the district court’s order granting a permanent injunction.”
 
The Ninth Circuit granted the motion. First, the court concluded that the Attorney General is likely to succeed on the merits. The court explained that the Attorney General makes strong arguments that Section 32310 comports with the Second Amendment under Bruen. Second, the Attorney General has shown that California will be irreparably harmed absent a stay pending appeal by presenting evidence that large-capacity magazines pose significant threats to public safety. Third, it does not appear that staying portions of the district court’s order while the merits of this appeal are pending will substantially injure other parties interested in the proceedings. Finally, the court concluded that the public interest tips in favor of a stay.

United States v. Nunez-Carranza

Court: US Court of Appeals for the Tenth Circuit

Docket: 22-2100

Opinion Date: October 11, 2023

Judge: David M. Ebel

Areas of Law: Constitutional Law, Criminal Law

Defendant Alfredo Nunez-Carranza, a Mexican citizen, challenged his fifty-one-month sentence for unlawfully reentering the United States after previously being removed. The fifty-one-month sentence fell at the
bottom of Nunez-Carranza’s properly calculated advisory guideline range. On appeal, he contended the district court plainly erred in not explaining why it imposed that sentence instead of a below-guideline sentence that he requested. Finding no reversible error, the Tenth Circuit Court of Appeals affirmed.

USA v. Robert Dunn

Court: US Court of Appeals for the Eleventh Circuit

Docket: 22-11731

Opinion Date: October 10, 2023

Judge: HULL

Areas of Law: Constitutional Law, Criminal Law

After entering a conditional guilty plea, Defendant appealed his convictions on four counts related to child pornography. At the start of the COVID-19 global pandemic, Defendant was arrested on a criminal complaint on March 10, 2020. Thereafter, the district court entered a series of pandemic-related administrative orders that continued grand jury sessions five times at the ends of justice, spanning March 26, 2020, to November 16, 2020. Due to the pandemic, a grand jury did not formally indict Defendant until December 1, 2020. On appeal, Defendant argued that the district court erred in denying his motion to dismiss his indictment for failure to indict him within thirty days from his arrest, as required by the Speedy Trial Act. Defendant does not challenge the time between indictment and his guilty plea, but only between his arrest on March 10 and grand jury indictment on December 1, 2020.



The Eleventh Circuit affirmed the denial of Defendant’s motion to dismiss his indictment. The court concluded that the pandemic-related continuances in 2020 were not an abuse of discretion and were within the ends-of-justice exception to the Speedy Trial Act. The court explained that the magistrate judge was not required to expressly consider each statutory factor in its order or recite specific language from the statute. The court explained that not every statutory factor will be relevant to the circumstances warranting the continuance. Instead, it is sufficient if the record shows, as it does here, that the magistrate judge considered the pertinent factors.

USA v. Timothy Jermaine Pate

Court: US Court of Appeals for the Eleventh Circuit

Docket: 20-10545

Opinion Date: October 11, 2023

Judge: NEWSOM

Areas of Law: Criminal Law, White Collar Crime

Defendant filed liens against property owned by a slew of people he thought had wronged him—including, as relevant here, a former Commissioner of the IRS and a former Secretary of the Treasury. Defendant was thereafter charged with and convicted of violating 18 U.S.C. Section 1521, which criminalizes the filing of retaliatory liens against the property of “an individual described in” Section 1114, which, in turn, refers to “any officer or employee of the United States. At issue on appeal is whether a former civil servant counts as an “officer or employee of the United States” within the meaning of Section 1114 and, thus, of Section 1521.
 
The Eleventh Circuit vacated Defendant’s convictions on four counts and remanded for resentencing. The court explained that Davis v. Michigan Department of Treasury and Robinson v. Shell Oil Co. establish that words like “officer” and “employee” can sometimes include formers—but only when the statutory context makes clear that they should. Neither suffices to show that the ordinary meaning of those terms includes ex-officers or erstwhile employees. Here, given the absence of textual indicia supporting a broader reading of the terms, the court declined to adopt the government’s strained interpretation. The court wrote that because Defendant filed the liens at issue when the relevant parties were no longer government “officer[s] or employee[s]” within the meaning of Section 1114, his conduct wasn’t covered by 18 U.S.C. Section 1521.

Madole v. State

Court: Arkansas Supreme Court

Citation: 2023 Ark. 139

Opinion Date: October 12, 2023

Judge: Webb

Areas of Law: Criminal Law

The Supreme Court affirmed Defendant's convictions and sentences for aggravated residential burglary, attempted first-degree murder, first-degree battery, residential burglary, breaking or entering, theft of a firearm, and second-degree criminal impersonation, holding that Defendant was not entitled to relief on his allegations of error.

On appeal, Defendant's attorney, pursuant to Anders v. California, 386 U.S. 738 (1967), and Arkansas Supreme Court Rule 4-3(b), filed a motion to withdraw as counsel and a no-merit brief stating that any issues raised on appeal would be "wholly frivolous." The Supreme Court affirmed Defendant's convictions and sentence and granted counsel's motion to withdraw, holding that the pro se points submitted by Defendant for consideration by the Court were unavailing.

Wilder v. State

Court: Arkansas Supreme Court

Citation: 2023 Ark. 137

Opinion Date: October 12, 2023

Judge: Kemp

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

The Supreme Court affirmed the judgment of the circuit court convicting Defendant of two counts of rape, three counts of first-degree sexual assault, and two counts of sexual indecency with a child and sentencing him to two terms of life imprisonment, holding that Defendant was not entitled to relief on his allegations of error.

On appeal, Defendant argued, among other things, that the circuit court abused its discretion by admitting testimony of a certain witness under the pedophile exception to Ark. R. Evid. 404(b). The Supreme Court affirmed, holding (1) Defendant's first argument was not preserved for appellate review; (2) Defendant's argument that the circuit court erred in denying his motion for a mistrial was not preserved; and (3) the circuit court did not err in excluding evidence of the victims' prior sexual conduct pursuant to the rape-shield statute set forth in Ark. Code Ann. 16-42-101(c).

Wofford v. State

Court: Arkansas Supreme Court

Citation: 2023 Ark. 138

Opinion Date: October 12, 2023

Judge: Womack

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

The Supreme Court affirmed Defendant's conviction of capital murder and his sentence to life in prison, holding that substantial evidence supported the conviction.

After a jury trial, Defendant was convicted of the murder of his ex-wife and sentenced to life imprisonment. As his sole point on appeal, Defendant argued that there was insufficient evidence supporting his conviction, and therefore, the trial court erred in denying his motion for a directed verdict. The Supreme Court disagreed and affirmed, holding that there was substantial evidence to support Defendant's capital murder conviction, and there was no error with respect to the jury's rejection of Defendant's affirmative defense argument.

Martin v. Delaware

Court: Delaware Supreme Court

Docket: 112, 2021

Opinion Date: October 9, 2023

Judge: LeGrow

Areas of Law: Constitutional Law, Criminal Law

In 2013, defendant-appellant Darnell Martin received an unconditional gubernatorial pardon for his previous criminal convictions, which included several felony convictions. Several years later, Martin was arrested and charged with new offenses. After his convictions for those charges were affirmed on direct appeal, he filed a motion for postconviction relief, arguing that his trial counsel was ineffective. More than two years passed as the parties briefed Martin’s motion and the trial court considered it. During that time, Martin served his prison sentence and his term of probation. He was discharged from probation while the postconviction motion was under advisement with the Superior Court. After Martin’s probation was discharged, the Superior Court dismissed his postconviction motion as moot, concluding that he no longer was “in custody” as required by Rule 61(a) and, given his extensive criminal history, he would not suffer any collateral consequences as a result of the convictions he was challenging. When the Superior Court dismissed the motion, it was not aware that Martin’s previous convictions had been pardoned. Martin appealed, and the Delaware Supreme Court remanded to the Superior Court to further consider the effect of Martin’s pardon, including whether a pardoned defendant suffers collateral consequences in the same manner as a first-time felon and therefore should not have his postconviction motion mooted if he is released from custody before the motion is resolved. The Superior Court concluded the collateral consequences doctrine, which the Supreme Court adopted more than 50 years ago based on United States Supreme Court precedent, has no continuing application in postconviction proceedings in Delaware. Martin’s appeal then returned to the Supreme Court, where he again challenged dismissal of his motion and the Superior Court’s application of the mootness doctrine. Having carefully considered the Superior Court’s decision and the parties’ submissions, the Delaware Supreme Court concluded the Superior Court erred in dismissing Martin’s postconviction motion as moot.

Thomas v. Delaware

Court: Delaware Supreme Court

Docket: 268, 2022

Opinion Date: October 2, 2023

Judge: Karen L. Valihura

Areas of Law: Constitutional Law, Criminal Law

Defendant-appellant Shamayah Thomas (“Thomas”) was convicted after a bench trial of Stalking and related acts of intimidation and harassment. Before his bench trial, Thomas filed a pro se Motion to Dismiss Current Counsel and/or to Appoint New Counsel on grounds that his then-current counsel was not following his instructions regarding his pretrial defense (the “First Motion to Dismiss Current Counsel”). Also before trial, Thomas’ counsel filed a motion to suppress digital evidence (the “Motion to Suppress”) collected from Thomas’s pink iPhone (“Pink iPhone”), alleging that law enforcement seized the phone without a warrant and, alternatively, that the search warrant issued following the seizure of the Pink iPhone (“Search Warrant”) was constitutionally defective. The trial court denied Thomas’ motion for new counsel pursuant to Superior Court Rule 47; the court granted in part, and denied in part, the Motion to Suppress, ultimately admitting certain evidence extracted from the Pink iPhone. After trial, but before his sentencing, Thomas filed a second motion to dismiss current counsel and/or appoint new counsel. Although the Superior Court prothonotary’s office failed to direct the second motion to dismiss counsel to defense counsel or to the trial judge, the trial court addressed the motion at Thomas’ sentencing hearing. Given the option of either delaying sentencing and proceeding pro se, or proceeding with his then-current counsel, Thomas chose to proceed with sentencing as scheduled, represented by his then-current counsel. On appeal, Thomas argued the Superior Court: (1) erred when it categorized the Pink iPhone Search Warrant as an overbroad warrant as opposed to an unconstitutional general warrant; and (2) failed to adequately address Thomas’ Motions to Dismiss Counsel. Thomas asked the Delaware Supreme Court to reverse his convictions and remand for a new trial. Finding no reversible error, the Supreme Court affirmed the trial court.

Bowman v. Georgia

Court: Supreme Court of Georgia

Docket: S23A0682

Opinion Date: October 11, 2023

Judge: Pinson

Areas of Law: Constitutional Law, Criminal Law

Appellant Torry Bowman and his friend, Maurice Goodman, got into an argument in a bar with brothers Alec and Britian Price. They confronted the Price brothers again outside the bar, and Alec was shot and died as a result of his injuries. Bowman was convicted of malice murder and other crimes in connection with Alec’s death. On appeal, Bowman contended the trial court erred by: (1) instructing the jury on party to a crime, conspiracy, and provocation by words alone; and (2) failing to allow him to stipulate to his prior conviction to prove the required elements of Count 9 without stipulating that the conviction involved the possession or use of a firearm. He also argued that these errors, taken together, deprived him of a fair trial under Georgia v. Lane, 838 SE2d 808 (2020). Finding no reversible error, the Georgia Supreme Court affirmed.

Caldwell v. Georgia

Court: Supreme Court of Georgia

Docket: S23A0987

Opinion Date: October 11, 2023

Judge: Peterson

Areas of Law: Constitutional Law, Criminal Law

Javion Caldwell was charged with: felony murder predicated on aggravated assault (Count 1), felony murder predicated on possession of marijuana with intent to distribute (Count 2), aggravated assault (Count 3), and possession of marijuana with intent to distribute (Count 4). These charges arose in connection with the shooting death of Jaleen Harrell during a drug deal. Caldwell was found guilty of Counts 2 and 4 and not guilty of Counts 1 and 3. On appeal, Caldwell argued the trial court failed to charge the jury that it had to find that he shot Harrell with a handgun in order to find him guilty on Count 2. Caldwell alternatively argued that the jury’s verdicts on Counts 1, 2, and 3 were repugnant, because the jury’s verdicts on Counts 1 and 3 reflected a finding that he did not shoot Harrell, even as a party to the crime, which Caldwell argued also meant that it had to acquit him on Count 2. Finding no reversible error, the Georgia Supreme Court affirmed.

Georgia v. Cook, et al.

Court: Supreme Court of Georgia

Dockets: S23A0702, S23A0703, S23A0704, S23A0705, S23A0706, S23A0707

Opinion Date: October 11, 2023

Judge: Bethel

Areas of Law: Constitutional Law, Criminal Law

Antonio May died from injuries he sustained inside the Fulton County (Georgia) Jail while in the custody of the Fulton County Sheriff. The defendants, Aaron Cook, Jason Roache, Guito Dela Cruz, Omar Jackson, Kenesia Strowder, and William Whitaker, were employed as jailers by the Fulton County Sheriff and were on duty at the Jail when May died. The State alleged through indictments of the defendants for felony murder and other crimes the defendants beat, pepper sprayed, and repeatedly shocked May with an electronic taser, thereby causing his death. Claiming the pre-indictment protections afforded to “peace officers” under OCGA § 17-7-52, the defendants sought to quash their indictments on the basis that they did not receive preindictment notice and an opportunity to be heard. The trial court found that, while none of the defendants were empowered to make arrests, they were nevertheless charged with maintaining the public peace. To that end, the trial court reasoned that “within the community of over 3,000 inmates in the Fulton County Jail (which is accessible to the public in various controlled ways), detention officers are the maintainers of public order” in the event that “there is a fight in the mess hall over bad beans or a brawl in the common space over which channel the TV should be on[.]” On that basis, the trial court quashed the indictments. The State appealed. The Georgia Supreme Court concluded the trial court erred by finding that the defendants’ duty to control and supervise inmates within the jail constituted a duty to maintain the public peace. Accordingly, the judgments were reversed.

Jones v. Georgia

Court: Supreme Court of Georgia

Docket: S23A0684

Opinion Date: October 11, 2023

Judge: Carla Wong McMillian

Areas of Law: Constitutional Law, Criminal Law

Xavier Jones appealed his convictions for felony murder and other crimes in connection with the 2010 shooting death of Christopher Crumby. On appeal, Jones argued the trial court erred: (1) in not granting his motion for directed verdict at trial; (2) in not granting his motion for new trial on the general grounds; (3) by admitting a video recording of Jones’s interview in which Jones remained silent in response to some of the investigators’ questions and comments; (4) denying his motion for mistrial on that ground, and (5) by failing to meaningfully respond to a question submitted by the jury during deliberations. Jones also argued the evidence submitted at trial was insufficient to support his convictions. The Georgia Supreme Court vacated Jones' conviction for aggravated assault as it should have merged into his felony murder conviction. The Court affirmed Jones' convictions in all other respects.

Kimbro v. Georgia

Court: Supreme Court of Georgia

Docket: S23A0678

Opinion Date: October 11, 2023

Judge: Warren

Areas of Law: Constitutional Law, Criminal Law

Appellant Torrey Kimbro was convicted of malice murder and rape in connection with the strangling death of Diamond Shepherd. On appeal, Kimbro contended the evidence presented at his trial was legally insufficient to support his convictions. He also claimed the trial court erred: by denying his motion for new trial on the “general grounds” set forth in OCGA §§ 5-5-20 and 5-5-21; by denying his motion for a continuance; by denying his motion to dismiss his indictment; by denying his motion for a mistrial; and by overruling his objections to certain statements that the prosecutor made during her closing argument. In addition, he claimed his trial counsel provided constitutionally ineffective assistance in several respects. Finding no reversible error, the Georgia Supreme Court affirmed.

Kinlaw v. Georgia

Court: Supreme Court of Georgia

Docket: S23A0547

Opinion Date: October 11, 2023

Judge: Bethel

Areas of Law: Constitutional Law, Criminal Law

Harold Kinlaw was convicted by jury of the malice murder of Felipe Herrera, the aggravated stalking and kidnapping of Kinlaw’s former wife Damaris Kinlaw, and other related crimes. Kinlaw appealed, arguing: (1) the evidence was insufficient to support his conviction for aggravated stalking; (2) the trial court erred by refusing to provide an interpreter for a witness at trial; (3) the trial court erred by excluding evidence that Herrera had threatened Kinlaw; (4) the trial court erred by failing to charge the jury on voluntary manslaughter and self-defense; and (5) the trial court erred by employing an improper remedy after finding that the State had violated Batson v. Kentucky, 476 U.S. 79 (1986). Finding no reversible error, the Georgia Supreme Court affirmed.

Maynor v. Georgia

Court: Supreme Court of Georgia

Docket: S23A0753

Opinion Date: October 11, 2023

Judge: Colvin

Areas of Law: Constitutional Law, Criminal Law

Appellant Reginald Maynor appealed his convictions for felony murder predicated on aggravated assault and other crimes related to the 2015 shooting death of Marti Stegall, Sr. This case stemmed from f a romantic affair involving two couples residing in the Trestle Tree Village Apartments. The conflict caused by this affair ultimately resulted in Appellant shooting and killing Stegall during a neighborhood Fourth of July celebration. At trial, Appellant admitted that he shot Stegall but claimed that he did so in self-defense. On appeal, Appellant argued the evidence was insufficient as a matter of constitutional and statutory law to disprove his claim of self-defense. Appellant also contended he received ineffective assistance of counsel because his trial counsel failed to effectively cross-examine a witness and failed to move for a mistrial when the trial evidence did not substantiate a factual claim made by the prosecutor in his opening statement. Appellant also asked that the Georgia Supreme Court consider the prejudicial effect of trial counsel’s errors cumulatively. Finding no reversible error, the Georgia Supreme Court affirmed.

McBrayer, et al. v. Scarbrough

Court: Supreme Court of Georgia

Docket: S22G1152

Opinion Date: October 11, 2023

Judge: Ellington

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

The Court of Appeals affirmed a superior court order granting a judgment on the pleadings in favor of the Sheriff of Tift County, Gene Scarbrough, in this action brought by Sherrie McBrayer for the wrongful death of her husband, James McBrayer (“the decedent”). The Court of Appeals held that Scarbrough was immune from suit because McBrayer’s complaint did not show that the decedent’s death, which occurred while he was restrained in the back seat of a patrol car, arose from the sheriff’s deputies’ “use” of the patrol car “as a vehicle,” which, under Court of Appeals case law construing OCGA §§ 33-24-51 (b) and 36-92-2, was a prerequisite for a waiver of sovereign immunity for injuries arising from the “negligent use of a covered motor vehicle.” In so holding, the Court of Appeals noted that McBrayer’s complaint did not allege “that the car was running; that any deputy was seated in the car; that any deputy was poised to start the car or transport the decedent to any location;” or that the deputies were otherwise “actively” using the patrol car “as a vehicle. McBrayer thereafter timely petitioned the Georgia Supreme Court for certiorari review. The Supreme Court held that the Court of Appeals erred in limiting the meaning of the word “use” in the phrase “use of a covered motor vehicle” by reading into OCGA §§ 33-24-51 (b) and 36-92-2 the words “actively” and “as a vehicle.” Therefore, it reversed the judgment of the Court of Appeals and remanded the case for further proceedings.

Pauldo v. Georgia

Court: Supreme Court of Georgia

Docket: S23A0654

Opinion Date: October 11, 2023

Judge: LaGrua

Areas of Law: Constitutional Law, Criminal Law

Appellant Raekwon Pauldo was convicted of malice murder in connection with the 2017 shooting death of Jacquel Smith. On appeal, Pauldo contended his trial counsel provided constitutionally ineffective assistance by: (1) failing to adequately prepare the defense of accident; (2) failing to limit testimony concerning the registration of Pauldo’s gun; and (3) failing to adequately inform him of the State’s plea offer. Finding no reversible error, the Georgia Supreme Court affirmed.

Priester v. Georgia

Court: Supreme Court of Georgia

Docket: S23A0728

Opinion Date: October 11, 2023

Judge: Warren

Areas of Law: Constitutional Law, Criminal Law

In 2020, Darnell Priester was convicted of malice murder, aggravated battery, and other crimes in connection with the shooting death of Thomas Robinson and the non-fatal shooting of Timothy Nelson. He appealed, arguing: (1) the
evidence presented at trial was not sufficient to support them; (2) the trial court erred by denying him a new trial on the general grounds; and (3) the trial court committed plain error by not giving jury instructions related to justification and perjury. Priester also argued his trial counsel provided ineffective assistance by failing to object to the lack of jury instructions related to justification and perjury; failing to object to testimony that implicated Priester’s right to remain silent; failing to cross-examine Shane Godsey; requesting an instruction on the necessity of corroboration of accomplice testimony; failing to file a pretrial motion for immunity; and failing to object to narrative testimony, to “asked and answered” testimony, and to the prosecutor “testifying.” Finding no reversible error, the Georgia Supreme Court affirmed.

Rivera v. Georgia

Court: Supreme Court of Georgia

Docket: S23A0429

Opinion Date: October 11, 2023

Judge: LaGrua

Areas of Law: Constitutional Law, Criminal Law

On May 19, 1996, the body of Bridgett Parker was discovered near an abandoned mobile home. Parker’s throat had been cut, and she had been raped. Soon after, law enforcement officers identified Appellant Octavious Rivera as a possible suspect, and over the next few weeks, they interviewed Rivera regarding Parker’s death, executed a search warrant for his car and residence, and obtained a sample of his DNA; however, they did not arrest Rivera at that time. In February 2018, following the GBI’s reexamination of Parker’s sexual assault kit using new DNA testing methods and technology, Rivera’s DNA was identified as a match for DNA found inside Parker’s vaginal area, and he was arrested. Rivera was later convicted of felony murder predicated on aggravated assault, as well as rape. On appeal, Rivera contended the trial court erred: (1) by denying Rivera’s motion for directed verdict on the ground that the State failed to allege the applicable tolling provision or exception to the statute of limitation with respect to Count 3 (aggravated assault) and Count 4 (rape) in the indictment, and on the ground that the statute of limitation on those counts was not tolled; and (2) by permitting the State to admit other-acts evidence under OCGA § 24-4-404 (b) and OCGA § 24-4-413 at trial. After review, the Georgia Supreme Court affirmed Rivera’s felony murder conviction and reversed his rape conviction.

Sosebee v. Georgia

Court: Supreme Court of Georgia

Docket: S23A0589

Opinion Date: October 11, 2023

Judge: Ellington

Areas of Law: Constitutional Law, Criminal Law

Christopher Sosebee was convicted by jury of felony murder in the 2020 death of Brian Hayes resulting from a car wreck. A sheriff’s deputy was looking for a black car that had been spraypainted and was missing its front grill, in order to serve arrest warrants on a person who, the day before, had reportedly been driving a vehicle matching that description. After a few minutes of following a SUV at 45 to 50 mph in a 45 mph zone, the deputy activated his blue lights and siren. The SUV accelerated and pulled away from the patrol car. At a curve, the SUV’s right rear tire
left the road, then the SUV veered sharply to the left, crossed the oncoming lane, traveled up an embankment, hit some boulders, flipped, landed on top of an approaching truck, and then rolled off. The driver of the truck (Hayes) showed no signs of life when the deputy reached him, and Sosebee’s girlfriend, Tiffany Franklin, who had been a passenger in the SUV during the incident, was very badly injured. A test of Sosebee’s blood after the wreck revealed methamphetamine, at an impairment level, as well as marijuana. Sosebee contended felony murder (Count 1), and homicide by vehicle in the first degree (Count 4), which were both predicated on Count 6, fleeing or attempting to elude, defined exactly the same criminal conduct. Sosebee argued that the rule of lenity therefore required that he be sentenced within the range for homicide by vehicle in the first degree, rather than for felony murder. He also contended his sentence of life without parole violated the prohibition of cruel and unusual punishment in the Eighth Amendment because neither felony murder nor homicide by vehicle in the first degree, when predicated on fleeing and attempting to elude as in this case, requires malice or specific intent to harm, and because the prior felonies that triggered his sentencing as a recidivist were nonviolent. Finding no reversible error, the Georgia Supreme Court affirmed.

Steele v. Georgia

Court: Supreme Court of Georgia

Docket: S23A0460

Opinion Date: October 11, 2023

Judge: Carla Wong McMillian

Areas of Law: Constitutional Law, Criminal Law

Donald Steele appealed his convictions for felony murder and aggravated assault in connection with the stabbing death of Kevin McGruder. Steele argued on appeal that the evidence was insufficient to support his felony murder conviction and that the trial court should have merged his conviction for aggravated assault into his conviction
for felony murder, which was based on aggravated assault. The Georgia Supreme Court concluded the evidence was sufficient to support Steele’s convictions, but the State conceded his conviction for aggravated assault should have merged into his felony murder conviction. The Supreme Court affirmed Steele’s conviction for felony murder and vacated his aggravated assault conviction.

Davis v. State

Court: Supreme Court of Indiana

Docket: 22S-CR-00253

Opinion Date: October 3, 2023

Judge: Molter

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

The Supreme Court dismissed Defendant's appeal of the sentence imposed in connection with his plea of guilty to four theft-related charges, holding that Defendant's written plea agreement with the State, which both he and his attorney signed, unambiguously waived his right to appeal his sentence.

In exchange for a more lenient sentence, Defendant agreed to plead guilty to four theft-related charges and waive his right to appeal his conviction and sentence. The trial court accepted Defendant's plea and sentenced him to four years for burglary and thirty months for theft, ordering the sentences to run concurrently. Defendant appealed, but the court of appeals dismissed the appeals with prejudice. The Supreme Court affirmed, holding that this Court could not nullify Defendant's appeal waiver through direct appeal based on the claim that the waiver was not knowing and voluntary, but Defendant could still seek relief through post-conviction proceedings.

In re Two Applications for a Criminal Complaint

Court: Massachusetts Supreme Judicial Court

Docket: SJC-13373

Opinion Date: October 11, 2023

Judge: Per Curiam

Areas of Law: Criminal Law

The Supreme Judicial Court affirmed the judgment of the county court denying, without a hearing, Petitioner's petition for relief under Mass. Gen. Laws ch. 211, 3, holding that Petitioner had no standing to obtain extraordinary relief in the instant matter.

Petitioner filed an application in the district court for a criminal complaint charging an individual with witness intimidation and unlawful wiretapping. The application was denied due to lack of probable cause. Thereafter, Petitioner filed another application for criminal complaint in the Boston Municipal Court (BMC) charging the same individual with witness intimidation. The BMC found no probable cause and did not issue the complaint. Petitioner then brought this action, and the single justice denied relief without addressing the merits. The Supreme Judicial Court affirmed, holding that the single justice neither erred nor abused his discretion in denying relief.

Galloway v. Mississippi

Court: Supreme Court of Mississippi

Citation: 2013-DR-01796-SCT

Opinion Date: October 5, 2023

Judge: Beam

Areas of Law: Constitutional Law, Criminal Law

Leslie “Bo” Galloway’s was convicted by jury of the capital murder of Shakeylia Anderson. Galloway’s conviction and sentence were affirmed by the Mississippi Supreme Court on direct appeal. His motion for rehearing was subsequently denied, and he sought relief from the United States Supreme Court by way of a petition for writ of certiorari, which was denied on May 27, 2014. Galloway returned to the Mississippi Supreme Court with a Motion for Leave to Proceed in the Trial Court with a Petition for Post-Conviction Relief, and his subsequently filed Motion for Leave to Proceed in the Trial Court with Amended Petition for Post-Conviction Relief. The Supreme Court treated both filings together as one and referred to it as Galloway’s amended petition for post-conviction relief. Finding no error, the Court denied his amended petition.

State v. Bristow

Court: Montana Supreme Court

Citation: 2023 MT 188

Opinion Date: October 6, 2023

Judge: Gustafson

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

The Supreme Court affirmed the judgment of the district court sentencing Defendant to seventy years in Montana State Prison for deliberate homicide, a felony, holding that Defendant was not entitled to relief on his allegations of error.

Specifically, the Supreme Court held (1) Defendant's claim that his trial attorney provided ineffective assistance when he advised Defendant and the court that mitigated deliberate homicide was not a lesser-included offense of deliberate homicide was more appropriate for postconviction relief; and (2) the district court did not err when it concluded that the State's offer of proof provided sufficient evidence to accept Defendant's Alford plea.

North Dakota v. Hatzenbuehler

Court: North Dakota Supreme Court

Citation: 2023 ND 192

Opinion Date: October 11, 2023

Judge: Jensen

Areas of Law: Constitutional Law, Criminal Law

Dean Hatzenbuehler appealed an order revoking sentencing and judgment imposing a new sentence. In August 2022, Hatzenbuehler pled guilty to conspiracy to deliver a controlled substance, a class B felony; delivery of a controlled substance, a class B felony; possession of a controlled substance-methamphetamine, a class A misdemeanor; and possession of drug paraphernalia, a class A misdemeanor He argued the district court’s findings of fact on the revocation of his probation were clearly erroneous and the court erred by not adequately considering the statutory sentencing factors. The North Dakota concluded the court’s findings supporting revocation were not clearly erroneous, the court adequately considered the statutory factors, and the court did not abuse its discretion in imposing a sentence upon revocation.

North Dakota v. Whitetail

Court: North Dakota Supreme Court

Citation: 2023 ND 196

Opinion Date: October 11, 2023

Judge: Daniel J. Crothers

Areas of Law: Constitutional Law, Criminal Law

Milo Blaine Whitetail was convicted by jury of intentional or knowing murder. Whitetail argued on appeal the
evidence is insufficient to prove that he was not in a dissociative mental state at the time of the murder due to his post-traumatic stress disorder. Whitetail also argued the State did not prove he acted knowingly or intentionally. Finding no reversible error, the North Dakota Supreme Court affirmed.

Grinnell v. Cool

Court: Supreme Court of Ohio

Citation: 2023-Ohio-3672

Opinion Date: October 11, 2023

Judge: Per Curiam

Areas of Law: Criminal Law

The Supreme Court affirmed the judgment of the court of appeals dismissing Appellant's petition for a writ of habeas corpus arguing that the trial court in which he was convicted lacked subject-matter jurisdiction, holding that the court of appeals correctly dismissed the petition for Appellant's failure to comply with Ohio Rev. Code 2969.25(C).

Appellant was convicted on two counts of aggravated murder and sentenced to two concurrent life sentences. Appellant later filed a petition for writ of habeas corpus alleging that the trial court lacked subject matter jurisdiction and failed properly to journalize his sentencing entry. The court of appeals dismissed the petition for Appellant's failure to comply with section 2969.25(C). The Supreme Court affirmed, holding that the petition was properly dismissed due to Appellant's failure to submit a certified statement of his inmate account, as required by section 2969.25(C)(1).

State ex rel. Barr v. Wesson

Court: Supreme Court of Ohio

Citation: 2023-Ohio-3645

Opinion Date: October 10, 2023

Judge: Per Curiam

Areas of Law: Communications Law, Criminal Law

The Supreme Court granted a limited writ of mandamus ordering Respondent James Wesson, the warden's assistant at the Grafton Correctional Institution (CGI), to, within fourteen days, either produce records in response to a December 2022 public-records request or show cause why the records could not be produced, holding that Relator was entitled to the writ.

Relator, an inmate at CGI, sent a public-records request by electronic kite to Wesson requesting three records. Relator subsequently commenced this mandamus action asking the Court to order Wesson to provide the requested records. The Supreme Court granted a limited writ ordering Wesson to produce a copy of a mental-health kite with reference number GCI0422002492 from April 21, 2022 or to show cause why it could not be produced, holding that Relator established that he was entitled to the writ.

State ex rel. Mobley v. Tyack

Court: Supreme Court of Ohio

Citation: 2023-Ohio-3673

Opinion Date: October 11, 2023

Judge: Per Curiam

Areas of Law: Criminal Law

The Supreme Court dismissed Appellant's appeal challenging the decision of the court of appeals denying his motion for leave to continue a mandamus action, holding that Appellant's appeal was prohibited under Ohio Rev. Code 2323.52(G).

Appellant filed a complaint for a writ of mandamus alleging that he made a public-records request to Appellee, Franklin County Prosecutor G. Gary Tyack, under Ohio's Public Records Act, Ohio Rev. Code 149.43, for certain documents, and that Tyack had failed to answer his request. Thereafter, in a separate case, Mobley was declared a vexatious litigator. Mobley filed a motion for leave to continue his mandamus action as a vexatious litigator, but the court of appeals denied the motion and dismissed the mandamus action. The Supreme Court dismissed Appellant's appeal, holding that the Court lacked jurisdiction to consider the appeal.

State v. Williams

Court: Supreme Court of Ohio

Citation: 2023-Ohio-3647

Opinion Date: October 10, 2023

Judge: Donnelly

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

In this case concerning how an Ohio prisoner is to enforce his constitutional right to a speedy trial on an untried indictment the Supreme Court held that a prisoner satisfies the "causes to be delivered" requirement of Ohio Rev. Code 2941.401 when he delivers the written notice and the request to the warden where he is imprisoned, even if the warden fails to deliver the notice and the request to the prosecuting attorney or the appropriate court.

Appellant, who was indicted on counts of aggravated robbery and robbery, moved to dismiss the indictment on speedy-trial grounds. The trial court granted the motion, concluding that Appellant had strictly complied with section 2941.401 when he provided written notice of his place of imprisonment and a request for a final disposition and that the 180-day speedy trial time was not tolled by the warden's failure to comply with his duty to send out Appellant's written notices and requests to the prosecuting attorney or the appropriate court. The court of appeals reversed, concluding that Appellant had not strictly complied with the requirements of the statute. The Supreme Court reversed, holding that Appellant caused to be delivered his written notice and request for final disposition under the statute when he provided them to the warden.

Ingle v. Matteucci

Court: Oregon Supreme Court

Docket: S069222

Opinion Date: October 12, 2023

Judge: Duncan

Areas of Law: Constitutional Law, Criminal Law

Petitioner Matthew Ingle waived his right to a jury trial and raised an insanity defense. The trial court found petitioner “guilty except for insanity” on all charges and placed him under the jurisdiction of the Psychiatric Security Review Board and committed him to the Oregon State Hospital. More than eight years after his convictions became final, petitioner filed a pro se petition for post-conviction relief. Petitioner requested and received court-appointed counsel, who amended the petition. In the operative petition, petitioner acknowledged that the limitations period had run but asserted that an “escape clause” applied. Specifically, he asserted that the escape clause applied because, during the limitations period, he was disabled by “diagnosed schizophrenia” and the “forced consumption of extremely powerful psychotropic medications” and that those conditions “deprived him of the ability” to file a timely petition. The State moved to dismiss the petition, asserting that petitioner’s mental impairments were irrelevant to whether the escape clause applied. The Oregon Supreme Court concluded petitioner’s allegations were sufficient to raise a triable issue on the applicability of the escape clause. Consequently, the post-conviction court erred in granting the State’s motion to dismiss on the pleadings. That judgment was reversed and the case remanded for further proceedings.

Oregon v. B. Y.

Court: Oregon Supreme Court

Docket: S069640

Opinion Date: October 5, 2023

Judge: Garrett

Areas of Law: Constitutional Law, Criminal Law, Juvenile Law

While on juvenile parole related to a commitment to Oregon Youth Authority (OYA) in an earlier case, B.Y. was adjudicated to be within the jurisdiction of the juvenile court for interfering with a peace officer. Based on that conduct, the juvenile court imposed a new disposition, which also committed B.Y. to OYA custody, to commence at the conclusion of his existing commitment. B.Y. challenged that order, contending that the juvenile court lacked authority to impose consecutive commitments. A divided panel of the Court of Appeals agreed with B.Y. and reversed the juvenile court. The Oregon Supreme Court reversed the appellate court: “the statutory text neither expressly permits nor expressly prohibits the imposition of consecutive commitments. The statutory scheme does, however, confer broad authority on the juvenile court to fashion appropriate dispositions; that stands in contrast to the criminal code, where courts’ sentencing authority is more circumscribed. Given that contrast, the fact that the legislature did not explicitly provide for consecutive commitments in a circumstance such as this is unsurprising. In light of the wide latitude that the legislature has chosen to give juvenile courts, it is more reasonable to expect that if the legislature had intended to limit the juvenile court’s ability to impose consecutive commitments in this circumstance, the legislature would have indicated as much.”

Oregon v. Hubbell

Court: Oregon Supreme Court

Docket: S069092

Opinion Date: October 5, 2023

Judge: Garrett

Areas of Law: Constitutional Law, Criminal Law

A trial court convicted defendant Brian Hubbell of delivery under ORS 475.752 based on evidence that defendant’s extended-stay hotel room contained a large quantity of fentanyl, a portion of which was packaged in a manner consistent with an intent to sell it to individual users or dealers. Over defendant’s objection, the trial court ruled that that evidence was sufficient to convict him of delivery under Oregon v. Boyd, 756 P2d 1276 (1988). In Boyd, the Court of Appeals construed the phrase “attempted transfer” in ORS 475.005(8) by applying principles of liability for the inchoate crime of attempt, ORS 161.405(1), whereby a person who intentionally takes a “substantial step” toward committing a crime is liable for attempting the crime. Boyd held that possessing a controlled substance in a quantity too large to be consistent with personal use, combined with evidence of an intent to transfer that substance, constitutes a substantial step toward transferring it and hence is sufficient to show an “attempted transfer.” On appeal in this case, defendant argued the evidence was insufficient to show delivery even under Boyd. The Court of Appeal, on its own initiative, re-examined Boyd, overruled it, and held that possession plus an intent to deliver, without more, was insufficient to show an “attempted transfer” for purposes of the completed crime of delivery of controlled substances, though it could establish a “substantial step” for purposes of the inchoate crime of attempt. To this, the Oregon Supreme Court concurred and affirmed the appellant court.

State v. Ogden

Court: Utah Supreme Court

Citation: 2023 UT 23

Opinion Date: October 12, 2023

Judge: Hagen

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

The Supreme Court affirmed the judgment of the district court denying Defendant's motion filed under Utah R. Civ. P. 60(b)(6), which allows a court to grant relief from a judgment under certain circumstances, holding that Defendant's challenge to his conviction could have been brought in a petition for post-conviction relief.

Defendant pled guilty to two counts of attempted aggravated sexual abuse of a child. Defendant did not file a direct appeal and did not challenge his conviction under Utah's Post-Conviction Remedies Act (PCRA) but later filed a motion under Rule 60(b)(6) alleging ineffective assistance of counsel. The district court denied the motion, ruling that Rule 60(b)(6) was not the appropriate vehicle for Defendant to bring his claim. The Supreme Court affirmed, holding that the PCRA applied to Defendant's request to set aside his conviction based on his trial counsel's alleged conflict of interest.

Anderson v. Clarke

Court: Supreme Court of Virginia

Docket: 230172

Opinion Date: October 12, 2023

Judge: Charles S. Russell

Areas of Law: Criminal Law

The Supreme Court affirmed the judgment of the circuit court denying Appellant's petition for a writ of habeas corpus claiming that the Virginia Department of Corrections (VDOC) failed timely to release him from prison because it under-calculated his earned sentence credits (ESCs), holding that the circuit court did not err.

In his habeas corpus petition, Appellant argued that he was entitled to enhanced ESCs under the General Assembly's 2020 amendments to Va. Code 53-1-202.3 as set forth in House Bill 5148 (HB 5148). The circuit court denied the petition, concluding that Appellant was not entitled to immediate release because he was precluded from earning enhanced ESCs for time served prior to July 1, 2022. The Supreme Court affirmed, holding that Appellant was not eligible to receive enhanced ESCs under HB 5148.

Castellanos v. State

Court: Wyoming Supreme Court

Citation: 2023 WY 97

Opinion Date: October 10, 2023

Judge: Fenn

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

The Supreme Court affirmed Defendant's conviction for interference with a peace officer, holding that the district court did not violate Defendant's due process rights by conducting a hearing under Asch v. State, 62 P.3d 945 (Wyo. 2003), in Defendant's absence after he refused to attend the hearing.

Defendant, who was serving three consecutive life sentences at the Wyoming State Penitentiary, was charged with interference with a peace officer. Before the scheduled trial date, the State moved to require Defendant to be restrained during trial. The district court conducted an Asch hearing without Defendant and decided to impose restraints at trial. Defendant was convicted of one count of felony interference with a peace officer. The Supreme Court affirmed, holding that Defendant waived any right he had to be present at the Asch hearing by knowingly and voluntarily failing to appear at the hearing due to circumstances within his control.