Consideration of extraterritorial conduct did not violate the presumption against extraterritoriality, given the domestic elements of the conspiracy.
Assuming manufactured venue is a thing, agents' instructions to wire funds to DC was not an impermissible creation of venue.
As venue was not objected to prior to the close of the prosecutions case in chief, no error in court's holding that it was not an issue for the finder of fact.
No Brady claim in late release of co-conspirator's grand jury testimony, as insufficiently exculpatory.
Purportedly false evidence presented insufficiently prejudicial.
Introduction of co-conspirator's guilty plea not plain error, as insufficiently prejudicial.
No ineffective assistance.
https://www.cadc.uscourts.gov/internet/opinions.nsf/38541443F92BCBB4852582BB00514136/$file/15-3074.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.
Showing posts with label Ineffective Assistance. Show all posts
Showing posts with label Ineffective Assistance. Show all posts
Eighth Circuit: United States v. Gervais (Ken) Ngombwa
No ineffective assistance where attorney declines to investigate family relations, thinking there to be a substantial likelihood that unsavory details might be discovered.
Misstatements to agency properly grouped with later immigration offenses, as the purpose of the agency action was immigration enforcement, which serves society -- the victims were identical.
No Ex Post Facto violation in using a version of the sentencing guidelines in effect at the time of the later crimes that contains a new enhancement relevant to the earlier crimes, as sufficient notice before the later crimes is presumed.
No abuse of discretion in use of foreign convictions as proxies for the factual finding that the criminal history level underrated the deft's acts.
No abuse of discretion in use of genocide witness statements -- if hearsay, they had sufficient indicia of credibility.
Foreign expert testifying on video-link at sentencing is not unreliably unsworn.
http://media.ca8.uscourts.gov/opndir/18/06/187168P.pdf
Misstatements to agency properly grouped with later immigration offenses, as the purpose of the agency action was immigration enforcement, which serves society -- the victims were identical.
No Ex Post Facto violation in using a version of the sentencing guidelines in effect at the time of the later crimes that contains a new enhancement relevant to the earlier crimes, as sufficient notice before the later crimes is presumed.
No abuse of discretion in use of foreign convictions as proxies for the factual finding that the criminal history level underrated the deft's acts.
No abuse of discretion in use of genocide witness statements -- if hearsay, they had sufficient indicia of credibility.
Foreign expert testifying on video-link at sentencing is not unreliably unsworn.
http://media.ca8.uscourts.gov/opndir/18/06/187168P.pdf
Seventh Circuit: Wendell Weaver v. Walter Nicholson
State Habeas court reasonably applied governing precedent in holding that disqualification of deft's chosen counsel due to representation of potential prosecution witness didn't violate the right; the third party representation here was much closer than in the precedent to the contrary.
Trial counsel not crossing on a particular point didn't prejudice the petitioner, as the witness' credibility was attacked elsewhere.
Petitioner didn't show that trial counsel didn't investigate a potential witness, merely that the witness wasn't called, which must be presumed to be a strategic decision.
Claim based in reported statements of witness who died shortly afterwards was procedurally defaulted for not being raised on direct review, and would have been considered inadmissible hearsay under governing Supreme Court precedent.
Pre-trial inconsistencies and post-trial recantation insufficient to establish Due Process violation for prosecution witness' perjury, given state court finding to contrary.
Admission of prior bad acts claim procedurally defaulted.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-15/C:16-2400:J:Kanne:aut:T:fnOp:N:2171664:S:0
Trial counsel not crossing on a particular point didn't prejudice the petitioner, as the witness' credibility was attacked elsewhere.
Petitioner didn't show that trial counsel didn't investigate a potential witness, merely that the witness wasn't called, which must be presumed to be a strategic decision.
Claim based in reported statements of witness who died shortly afterwards was procedurally defaulted for not being raised on direct review, and would have been considered inadmissible hearsay under governing Supreme Court precedent.
Pre-trial inconsistencies and post-trial recantation insufficient to establish Due Process violation for prosecution witness' perjury, given state court finding to contrary.
Admission of prior bad acts claim procedurally defaulted.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-15/C:16-2400:J:Kanne:aut:T:fnOp:N:2171664:S:0
Fifth Circuit: Edward Busby v. Lorie Davis, Director
Assertion of actual innocence in a second state Habeas that was dismissed summarily with an indication that the court did not reach the merits was not dismissed for procedural default, as the briefing indicates (which would at any rate be a reasonable ruling, since Federal courts are permitted to do such things), but for the alternate reason in the statute, namely that no reasonable juror would have accepted the claim. As this alternate ground is not challenged, the state denial was not an unreasonable application of facts or federal law.
Second non-AEDPA federal Habeas asserting identical claims is denied on merits.
Ineffective Assistance claim based on direct appeal was not raised in initial state Habeas -- ineffective assistance in collateral proceedings is insufficient excuse for the default of claim, as there is no right to counsel at that stage.
No prejudice from ineffective assistance at trial.
Editorial note: End the death penalty.
DC Circuit: US v. Benjamin Grey
Absent a limiting instruction, possibly prejudicial testimony as to previous civil judgment(s?) was inadmissible hearsay and plain error -- but insufficient for reversal.
Prior bad acts were sufficiently contemporaneous to be probative of intent as to the charged crimes.
No need to remand to develop ineffective assistance claim, given evidence of guilt.
https://www.cadc.uscourts.gov/internet/opinions.nsf/7D8985C55A9B312B852582A60052550E/$file/14-3003.pdf
Prior bad acts were sufficiently contemporaneous to be probative of intent as to the charged crimes.
No need to remand to develop ineffective assistance claim, given evidence of guilt.
https://www.cadc.uscourts.gov/internet/opinions.nsf/7D8985C55A9B312B852582A60052550E/$file/14-3003.pdf
Ninth Circuit: Ellis v. Harrison
State court's holding that Habeas petitioner must establish prejudice from his counsel's racial animus by a preponderance was an unreasonable application of federal constitutional law.
To establish prejudice from counsel's racial animus, petitioner must establish either his or her knowledge of the animus at a critical phase of the proceedings, resulting in a communications breakdown, or another adverse effect of the animus.
Concurrence to per curiam: prejudice should be the presumption in strategic decisions once animus is established.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/07/16-56188.pdf
To establish prejudice from counsel's racial animus, petitioner must establish either his or her knowledge of the animus at a critical phase of the proceedings, resulting in a communications breakdown, or another adverse effect of the animus.
Concurrence to per curiam: prejudice should be the presumption in strategic decisions once animus is established.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/07/16-56188.pdf
Sixth Circuit: John Stojetz v. Todd Ishee
State denial of Habeas for ineffective assistance not unreasonable, as the defendant's trial rights are not positive guarantees, they might have been strategically waived by counsel.
Trial counsel's voir dire description of mitigation as something to be balanced against aggravating circumstances when determining guilt did not prejudice determination of penalty, and might have been calculated to empanel mitigation-friendly jurors.
Deft counsel's lack of independent discovery interviews with accomplices not per se ineffective.
Lack of voir dire on murder publicity not unreasonable, as counsel might have been avoiding drawing attention to it.
So long as intent to kill is an element of both, not unreasonable for a state to allow jury to convict under contradictory theories of murder and abetting the crime.
Jury instruction establishing permissive inference of intent from possession of deadly weapon not unreasonable.
Collateral misconduct claims not raised on direct appeal waived, given state rule requiring exhaustion for any claims based on trial record.
Peremptory excusal of female jurors not unreasonable.
Victim-impact statements in closing not sufficiently plain to justify ineffective assistance.
No prejudice from eyewitness statement that deft had the intent to kill, given evidence of guilt.
No Brady violation on nondisclosure of medical records where deft had been aware of the injury.
Collateral challenge defaults not excused by counsel's nonperformance due to mental health issues; as counsel responded to show-cause orders and discussed non-filings with the court administration, there was neglect rather than abandonment.
No error in denial of postconviction discovery of grand jury proceedings, as indictment under multiple theories of the offence was merely speculative.
New testimony by accomplices and witnesses insufficient for actual innocence Habeas grant.
Sentencing court's view of mitigation not arbitrary and capricious.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0106p-06.pdf
[Editorial note: End the death penalty.]
Eleventh Circuit: Campbell v. US
No inadequate assistance of counsel where deft's in-court admission of not living in the house jeopardized his standing to challenge a search there.
Deft could not have challenged the search anyway, as his primary purpose there was business-related.
Ninth Circuit: ERIC MANN V. CHARLES RYAN
En Banc, Habeas, AEDPA, Ineffective Assistance
Denial of Habeas for Ineffective Assistance, as state court's findings on defense lawyer's choices might have been made by fair-minded jurists.
State intermediate appeal on the collateral challenge did not inappropriately consider whether it was more likely than not that the verdict/sentence had been affected rather than asking if the error resulted in a reasonable probability of a difference in the outcome. Court's statement that nothing would have changed can be read to imply the reasonable probability standard.
Claim that state applied unconstitutional nexus test for mitigation factors, although not raised here, does not establish that rulings on the initial collateral challenge considered the wrong set of relevant mitigating factors.
Lack of explicit statement that new mitigation was considered on state direct and collateral challenge doesn't mean that it wasn't considered.
State Habeas findings not unreasonable.
Concurrence/Dissent -- Causal nexus error infected ruling on initial collateral challenge. Intermediate appeal used preponderance standard. Error on de novo review of ineffective assistance in mitigation.
Concurrence/Dissent 2 -- De novo review, but no prejudice.
ERIC MANN V. CHARLES RYAN
Eighth Circuit: Luis Herrera v. United States
Habeas, Drugs, Ineffective Assistance
Denial of writ for ineffective assistance, as a statute referring to one quantity of pure substance and a second quantity of diluted substance applies where the deft sold a quantity of diluted substance containing the proscribed amount of the pure substance.
Luis Herrera v. United States
Sixth Circuit: Cedric Carter v. Betty Mitchell
Habeas, AEDPA, Ineffective Assistance
Where specific claims are remanded, the District court should consider those claims in full, not the appeals court's characterization of them.
No abuse of discretion to deny a stay to exhaust state Habeas claims in a mixed petition where the evidence was available to deft on initial direct and collateral review
Although lack of initial objection to magistrate's finding on one collateral review claim is not jurisdictional for purposes of appellate review, this claim is insufficiently extraordinary to excuse the omission.
Trial counsel might have had strategic purpose for eliciting negative testimony on direct examination of mitigation expert and not calling the deft's mother.
State collateral review did not inappropriately consider fundamental fairness when considering prejudice under Strickland, given lack of specific indication in the record.
Cedric Carter v. Betty Mitchell
Eleventh Circuit: Johnny L. Marshall v. Secretary, Florida Department of Corrections, et al.
Habeas, Ineffective Assistance, Fourth Amendment, AEDPA
Habeas for ineffective assistance denied where counsel did not attempt to suppress identification made after suspect was transported back to the scene of the crime during a Terry stop.
Concurrence: State statute prohibits doing that during a Terrry stop, but AEDPA prohibits the writ, since the state statutory argument wasn't made in state Habeas.
Johnny L. Marshall v. Secretary, Florida Department of Corrections, et al.
Seventh Circuit: Alfonso Torres-Chavez v. USA
Habeas, Ineffective Assistance
Error for District Court to deny the Writ without an evidentiary hearing where petitioner reasonably clams that defense counsel urged the refusal of a plea deal, claiming the government's case was weak.
Alfonso Torres-Chavez v. USA
Seventh Circuit: James Todd v. Kess Roberson
Habeas, Ineffective Assistance
Denial of ineffective assistance Habeas based on claim that deft's counsel had guaranteed a ten year sentence, as the deft stated in court that no deal had been made, and there was no showing that deft would have otherwise gone to trial.
James Todd v. Kess Roberson
First Circuit: Rivera-Rivera v. US
Ineffective Assistance, Interstate Commerce
No ineffective assistance in lack of objection to interstate commerce element to mall robbery, as subsequent appellate review said that the trial court ruling would have been upheld in de novo review
Dissent -- In dicta.
Rivera-Rivera v. US
Seventh Circuit: USA v. Dante Graf
FRCrimP
Ineffective assistance of counsel in not informing deft that he could move for the disclosure of the identity of a confidential informant is not per se a basis for the subsequent withdrawal of guilty plea. Insufficient showing under Strickland.
Fairness and justice requires that court look to see whether actual guilt or innocence is implicated.
Circuit split flagged.
USA v. Dante Graf
Ineffective assistance of counsel in not informing deft that he could move for the disclosure of the identity of a confidential informant is not per se a basis for the subsequent withdrawal of guilty plea. Insufficient showing under Strickland.
Fairness and justice requires that court look to see whether actual guilt or innocence is implicated.
Circuit split flagged.
USA v. Dante Graf
Seventh Circuit: Carlos G. Rocha v. J. Gordon Rudd, Jr.
FRCP, Legal malpractice, Fraud
Where a claim is still viable and the plaintiff is still capable of pursuing it at the termination of the attorney/client relationship, nomalpractice.
No error in denial of leave to amend fraud pleading for particularity where it appears that the totality of the claim would not suffice under Iqbal.
Dismissal on merits appropriate for not stating claim.
Carlos G. Rocha v. J. Gordon Rudd, Jr.
Where a claim is still viable and the plaintiff is still capable of pursuing it at the termination of the attorney/client relationship, nomalpractice.
No error in denial of leave to amend fraud pleading for particularity where it appears that the totality of the claim would not suffice under Iqbal.
Dismissal on merits appropriate for not stating claim.
Carlos G. Rocha v. J. Gordon Rudd, Jr.
Fifth Circuit: Michael Norris v. Lorie Davis, Director
AEDPA, Habeas
Circuit precedent at the time of conviction clearly established the need for a general mitigation instruction where there was evidence of good character.
Fleeting reference to federal claim in state Habeas petition did not exhaust the claim.
A series of smaller federal claims can't be accumulated into a viable, freestanding one.
Sufficient evidence.
No Strickland error where deft's lawyer elicits fact of prior convictions, doesn't preserve objection to admission of deft's statement to police.
Michael Norris v. Lorie Davis, Director
Tenth Circuit: United States v. Holloway
Ineffective Assistance, Fraud, Sentencing
Counsel of Choice claim construed as Ineffective Assistance claim, barred until collateral challenge.
Admission of excessive victim impact statements harmless error.
No error in exclusion of witness' prior convictions/judgments, as impeachment from same set of facts could be done in other ways.
As trial objection was to number of victims that the defendant knew about, and not the objective number, objection to sentencing enhancement not preserved.
United States v. Holloway
Counsel of Choice claim construed as Ineffective Assistance claim, barred until collateral challenge.
Admission of excessive victim impact statements harmless error.
No error in exclusion of witness' prior convictions/judgments, as impeachment from same set of facts could be done in other ways.
As trial objection was to number of victims that the defendant knew about, and not the objective number, objection to sentencing enhancement not preserved.
United States v. Holloway
Eighth Circuit: Laquince Hogan v. Wendy Kelley
Ineffective Assistance, Fourth Amendment
Warrantless search of closed container not a basis for ineffective assistance habeas, given inevitable discovery.
Laquince Hogan v. Wendy Kelley
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