Habeas, AEDPA
Partial vacatur of sentence without formal resentencing resets the AEDPA clock, and subsequent collateral attacks are therefore not second/successive. Circuit split flagged relative to precedent.
Concurrence: Yep.
Dissent: Nope.
http://media.ca11.uscourts.gov/opinions/pub/files/201212653.pdf
Since 2011. An occasional commonplacing of the U.S. Circuit Courts of Appeal.
Neither an authoritative statement of the law nor legal advice. Quick work.
Seventh Circuit: Michael Belleau v. Edward Wall
Release conditions - electronic monitoring
No Fourth Amendment violation for warrantless perpetual electronic monitoring, given the incremental loss of privacy and substantial social benefits.
Electronic monitoring isn't Ex post facto, as it's not a punishment.
Concurrence in J: Reasonable special needs search, but if tech was more ubiquitous, possibly a different calculus. Not punitive in purpose or effect.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-29/C:15-3225:J:Flaum:con:T:fnOp:N:1694901:S:0
No Fourth Amendment violation for warrantless perpetual electronic monitoring, given the incremental loss of privacy and substantial social benefits.
Electronic monitoring isn't Ex post facto, as it's not a punishment.
Concurrence in J: Reasonable special needs search, but if tech was more ubiquitous, possibly a different calculus. Not punitive in purpose or effect.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-29/C:15-3225:J:Flaum:con:T:fnOp:N:1694901:S:0
Seventh Circuit: Stark Excavating, Incorporated v. Thomas Perez
Administrative
Although the ALJ was uniquely qualified to make credibility determinations on willfulness, the reviewing Commission's reversal was supported by substantial evidence, as the ALJ's finding was susceptible of multiple interpretations.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-29/C:14-3809:J:Rovner:aut:T:fnOp:N:1694913:S:0
Although the ALJ was uniquely qualified to make credibility determinations on willfulness, the reviewing Commission's reversal was supported by substantial evidence, as the ALJ's finding was susceptible of multiple interpretations.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-29/C:14-3809:J:Rovner:aut:T:fnOp:N:1694913:S:0
Fifth Circuit: Jay Barrash v. Amer Assn of Neurl Surgns Inc.
Torts
Although the professional association did not provide the member under censure with sufficient due process under the rules of the organization, there was no inherent due process violation, as the member had sufficient advance notice of the materials in dispute.
As the association could have revoked the censure in full after the partial judicial rescission, there is no due process violation in the partial judicial rescission of the censure.
Under state law- judicial non-intervention bars relief for palintiff under contract theory in an alleged violation of bylaws.
http://www.ca5.uscourts.gov/opinions/pub/14/14-20764-CV0.pdf
Although the professional association did not provide the member under censure with sufficient due process under the rules of the organization, there was no inherent due process violation, as the member had sufficient advance notice of the materials in dispute.
As the association could have revoked the censure in full after the partial judicial rescission, there is no due process violation in the partial judicial rescission of the censure.
Under state law- judicial non-intervention bars relief for palintiff under contract theory in an alleged violation of bylaws.
http://www.ca5.uscourts.gov/opinions/pub/14/14-20764-CV0.pdf
Second Circuit: United States v. Pruitt
Sentencing
No plain error in within-guidelines sentence issued without explanation, as the sentencing judge adopted the findings of the PSR, which contains the justifications for the sentence.
Checkbox on sentencing form imposing a within-guidelines sentence risks legal error. Explicit request to Congress that it amend it.
http://www.ca2.uscourts.gov/decisions/isysquery/5402e8be-d735-46ae-b512-f956299ada45/2/doc/14-1921_opn_and_attachment.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/5402e8be-d735-46ae-b512-f956299ada45/2/hilite/
No plain error in within-guidelines sentence issued without explanation, as the sentencing judge adopted the findings of the PSR, which contains the justifications for the sentence.
Checkbox on sentencing form imposing a within-guidelines sentence risks legal error. Explicit request to Congress that it amend it.
http://www.ca2.uscourts.gov/decisions/isysquery/5402e8be-d735-46ae-b512-f956299ada45/2/doc/14-1921_opn_and_attachment.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/5402e8be-d735-46ae-b512-f956299ada45/2/hilite/
Second Circuit: Victory v. Pataki et al.
S1983 Due Process - Parole
Prison inmate with a parole release date has a cognizable liberty interest.
As challenge to tribunal's decision was only possible by contradicting prior unsworn testimony of its members, there was no impartial decisionmaker at the point of parole rescission.
Absolute immunity for quasijudicial officers of parole board does not extend to fabrication of evidence before the initiation of proceedings.
Genuine issues of material fact on merits - remand.
http://www.ca2.uscourts.gov/decisions/isysquery/5402e8be-d735-46ae-b512-f956299ada45/1/doc/13-3592_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/5402e8be-d735-46ae-b512-f956299ada45/1/hilite/
Prison inmate with a parole release date has a cognizable liberty interest.
As challenge to tribunal's decision was only possible by contradicting prior unsworn testimony of its members, there was no impartial decisionmaker at the point of parole rescission.
Absolute immunity for quasijudicial officers of parole board does not extend to fabrication of evidence before the initiation of proceedings.
Genuine issues of material fact on merits - remand.
http://www.ca2.uscourts.gov/decisions/isysquery/5402e8be-d735-46ae-b512-f956299ada45/1/doc/13-3592_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/5402e8be-d735-46ae-b512-f956299ada45/1/hilite/
Subscribe to:
Posts (Atom)