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
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.
Eighth Circuit: Mahn v. Jefferson County
In First Amendment retaliation case, once the plaintiff produces substantive proof from which the finder of fact can infer that the protected conduct was a motivating factor, the full burden of proof to establish a nondiscriminatory motive for the action passes to the deft.
At summary judgment, this nondiscriminatory explanation must be indisputable.
Reinstatement is an equitable remedy permitted against a state official under Ex Parte Young.
Allegations against second official and municipality too speculative to present issue for trial.
http://media.ca8.uscourts.gov/opndir/18/06/161731P.pdf
At summary judgment, this nondiscriminatory explanation must be indisputable.
Reinstatement is an equitable remedy permitted against a state official under Ex Parte Young.
Allegations against second official and municipality too speculative to present issue for trial.
http://media.ca8.uscourts.gov/opndir/18/06/161731P.pdf
Seventh Circuit: Carl Leo Davis v. US
The Supreme Court's holding that the residual clause of ACCA was unconstitutionally vague announced a substantive change in the law that applies to petitioners seeking collateral review of sentences imposed under a parallel provision of the mandatory sentencing guidelines, despite the Supreme Court's subsequent holding that the provision in the guidelines was constitutional, as the gudelines, in the interval, had become merely advisory.
This substantive shift in the law was a sharp reversal from precedent, legitimately causing the petitioners not to raise the issue on direct appeal.
A second substantive change in the law that removed an alternate basis for the sentence of one of the petitioners did not trigger a mandatory limitation period for filing the writ, as it would merely have shifted the ultimate basis for the sentence.
A plea deal carve out excepting any constitutionally impermissible factor incorporates any unconstitutional input present at sentencing.
Prior offenses should be considered categorically when deciding whether the conviction is a valid predicate.
(Important decision. Again, all this is quick work. Don't rely.)
Sixth Circuit: United States v. Oscar Robinson
Above (almost double) guidelines sentence based on factors possibly resulting from addiction and the specific harms posed by the substance possessed and dealt is not substantively unreasonable.
Pre-plea disclosure of criminal history did not unfairly prejudice things.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0107p-06.pdf
Pre-plea disclosure of criminal history did not unfairly prejudice things.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0107p-06.pdf
Fifth Circuit: Certain Undwr at Lloyds London v. Lowen Valley
As the insurer established a plausible theory of harm outside the claim, the insured was required to establish some reasonable basis of apportioning the damage; absent this proof, the insurer has no liability under state law.
http://www.ca5.uscourts.gov/opinions/pub/17/17-10914-CV0.pdf
http://www.ca5.uscourts.gov/opinions/pub/17/17-10914-CV0.pdf
Fifth Circuit: Gorman v. Sharp
As the Fourth Amendment requires a willful violation, a training officer who forgets to swap his gun for a dummy gun and shoots the other fellow in the chest does not violate the Federal Constitution by restricting his freedom of movement.
http://www.ca5.uscourts.gov/opinions/pub/17/17-60515-CV0.pdf
http://www.ca5.uscourts.gov/opinions/pub/17/17-60515-CV0.pdf
Fifth Circuit: In re Rosendo Rodruiguez
Rule 11 show-cause ruling on untimely capital Habeas filing.
Petitioner should have rebutted affidavit timely offered by the state. No sanctions.
http://www.ca5.uscourts.gov/opinions/pub/18/18-10337-CV0.pdf
Petitioner should have rebutted affidavit timely offered by the state. No sanctions.
http://www.ca5.uscourts.gov/opinions/pub/18/18-10337-CV0.pdf
Second Circuit: Seepersad v. Sessions
No equal protection violation in permitting aliens seeking readmission at the border to waive inadmissibility while requiring a showing of valid residency before granting a similar waiver to resident aliens, as Congress might have wished to encourage doubtful aliens to be elsewhere during the process.
http://www.ca2.uscourts.gov/decisions/isysquery/1a213a40-982b-4547-95ac-62b636db872e/1/doc/16-64_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/1a213a40-982b-4547-95ac-62b636db872e/1/hilite/
Second Circuit: AEI Life v. Lincoln Benefit Life
A conformity statement in a contract, when captioned as a conformity clause and not naming a particular jurisdiction, does not sufficiently manifest the intention of the parties to be bound by the law of a particular jurisdiction to operate as a choice of law clause.
Under center of gravity analysis, New York law governs the transaction.
State public policy interests against wagering insurance contracts establish voidability, not ab initio nullity, and the risk can therefore be incorporated in the drafting.
Notary verification on the instrument of trust formation created a presumption of validity that was not overcome by a challenge by a handwriting expert.
http://www.ca2.uscourts.gov/decisions/isysquery/1a213a40-982b-4547-95ac-62b636db872e/2/doc/17-224_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/1a213a40-982b-4547-95ac-62b636db872e/2/hilite/
Under center of gravity analysis, New York law governs the transaction.
State public policy interests against wagering insurance contracts establish voidability, not ab initio nullity, and the risk can therefore be incorporated in the drafting.
Notary verification on the instrument of trust formation created a presumption of validity that was not overcome by a challenge by a handwriting expert.
http://www.ca2.uscourts.gov/decisions/isysquery/1a213a40-982b-4547-95ac-62b636db872e/2/doc/17-224_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/1a213a40-982b-4547-95ac-62b636db872e/2/hilite/
First Circuit: IRS v. Murphy
There is no good faith exception for willful violations of a bankruptcy stay; it suffices that the IRS knew of the stay and intentionally violated it.
With regard to the protection against willful violation, a stay offers the same protections as a discharge order.
This standard was contemplated at enactment, so the implied waiver of sovereign immunity is exactly parallel.
Dissent: presumption is against the waiver of sovereign immunity. As "willful" modifies "violation," IRS must knowingly violate a valid stay or discharge.
http://media.ca1.uscourts.gov/pdf.opinions/17-1601P-01A.pdf
With regard to the protection against willful violation, a stay offers the same protections as a discharge order.
This standard was contemplated at enactment, so the implied waiver of sovereign immunity is exactly parallel.
Dissent: presumption is against the waiver of sovereign immunity. As "willful" modifies "violation," IRS must knowingly violate a valid stay or discharge.
http://media.ca1.uscourts.gov/pdf.opinions/17-1601P-01A.pdf
First Circuit: AIG Property Casualty Co. v. Cosby
Souter, Associate Justice (Ret.), sitting by designation. And Bill.
Given a more stringent parallel exclusion in the insurance policy, the more laconic exclusion creates an ambiguity sufficient to trigger the presumption for the insured and the resulting duty to defend.
http://media.ca1.uscourts.gov/pdf.opinions/17-1505P-01A.pdf
Given a more stringent parallel exclusion in the insurance policy, the more laconic exclusion creates an ambiguity sufficient to trigger the presumption for the insured and the resulting duty to defend.
http://media.ca1.uscourts.gov/pdf.opinions/17-1505P-01A.pdf
First Circuit: Congregation Jeshuat Israel v. Congregation Shearith Israel
Denial of en banc.
Clarification from panel (Souter): holding only addresses trust obligations of parties.
Dissent from denial: But res judicata. Also, written contracts might not be the best way of getting at the truth, as the chartered entities didn't exist when the property transfer occurred.
http://media.ca1.uscourts.gov/pdf.opinions/16-1756O-01A.pdf
Clarification from panel (Souter): holding only addresses trust obligations of parties.
Dissent from denial: But res judicata. Also, written contracts might not be the best way of getting at the truth, as the chartered entities didn't exist when the property transfer occurred.
http://media.ca1.uscourts.gov/pdf.opinions/16-1756O-01A.pdf
Eleventh Circuit: US v. Wenxia Man
Conspiracy requiring a third participant is sufficiently well-developed if the others are planning to find an alternative to agreement with the necessary participant
Deft's awareness of illegal nature of the weapons sale activity evinced sufficient specific intent to violate the licensing requirements of the Act.
Eagerness to do the transaction and the delicate and furtive nature of the conversations established sufficient evidence for the finding that deft was predisposed to the crime and therefore not entrapped.
Co-conspirator hearsay properly admitted. Court could properly find an unidentified email address a co-conspirator. Admission of contemporaneous uncharged bad acts proper, as sufficiently entwined.
Sentence reasonable -- deft's US presence made her invaluable; no discriminatory error in court's sentencing finding that deft was faithful to her native country.
No plain error in Brady violation, given insufficient record/proffer.
http://media.ca11.uscourts.gov/opinions/pub/files/201615635.pdf
Deft's awareness of illegal nature of the weapons sale activity evinced sufficient specific intent to violate the licensing requirements of the Act.
Eagerness to do the transaction and the delicate and furtive nature of the conversations established sufficient evidence for the finding that deft was predisposed to the crime and therefore not entrapped.
Co-conspirator hearsay properly admitted. Court could properly find an unidentified email address a co-conspirator. Admission of contemporaneous uncharged bad acts proper, as sufficiently entwined.
Sentence reasonable -- deft's US presence made her invaluable; no discriminatory error in court's sentencing finding that deft was faithful to her native country.
No plain error in Brady violation, given insufficient record/proffer.
http://media.ca11.uscourts.gov/opinions/pub/files/201615635.pdf
Eleventh Circuit: LABMD, Inc. v. FTC
FTC cease-and-desist order too vague to be enforced, since an identical order from a court would be unenforceable on its terms, and the order therefore does not abate a specific act or practice that violates the statute.
http://media.ca11.uscourts.gov/opinions/pub/files/201616270.pdf
http://media.ca11.uscourts.gov/opinions/pub/files/201616270.pdf
Eleventh Circuit: Minott v. Brunello
Refusal of District Court to issue a warrant in rem for arrest of the vessel can be independently appealed.
Operation of the vessel in navigating the waters was sufficient maritime activity to give the court statutory in rem jurisdiction.
The lien against the vessel was perfected by the harm of the tort.
http://media.ca11.uscourts.gov/opinions/pub/files/201810374.pdf
Operation of the vessel in navigating the waters was sufficient maritime activity to give the court statutory in rem jurisdiction.
The lien against the vessel was perfected by the harm of the tort.
http://media.ca11.uscourts.gov/opinions/pub/files/201810374.pdf
Tenth Circuit: US v. Miller
Admission of expert testimony that did not clearly distinguish civil malpractice from criminal behavior was not an abuse of discretion.
Sufficient evidence where deft expert offers the only clear guidance on threshold of criminality, and court follows indications of another expert.
Indictment alleging dispensing of controlled substances by transaction as opposed to by substance not defective; additionally, would be harmless error as elements of the offense were identical. No error in allowing conviction on theory of multiple dispensation where the crime is single dispensation.
Absent curative instruction, plain error in constructive amendment of indictment when, during testimony at trial, prosecution witness alleged a second false statement.
Given the procedures used, state administrative vacatur did not make a prior suspension of medical license a legal nullity.
Sentence challenge moot, as already served.
https://www.ca10.uscourts.gov/opinions/16/16-1231.pdf
Sufficient evidence where deft expert offers the only clear guidance on threshold of criminality, and court follows indications of another expert.
Indictment alleging dispensing of controlled substances by transaction as opposed to by substance not defective; additionally, would be harmless error as elements of the offense were identical. No error in allowing conviction on theory of multiple dispensation where the crime is single dispensation.
Absent curative instruction, plain error in constructive amendment of indictment when, during testimony at trial, prosecution witness alleged a second false statement.
Given the procedures used, state administrative vacatur did not make a prior suspension of medical license a legal nullity.
Sentence challenge moot, as already served.
https://www.ca10.uscourts.gov/opinions/16/16-1231.pdf
Ninth Circuit: US v. Gibran Richardo Figueroa-Beltran
Given a state supreme court holding that a legislature could leave the identification of specific controlled substances for later determination, and a second holding by the same court that the simultaneous sale of two prohibited substances constituted two distinct offenses, question certified to the state court asking whether the elements of the state statute are divisible, which would merit closer scrutiny when asking whether they correspond to the federal statute.
"Pled."
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/06/16-10388.pdf
"Pled."
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/06/16-10388.pdf
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