Motion to Vacate Sentence (28 U.S.C. § 2255)

Ineffective Assistance of Counsel - Failure to Perfect Appeal, Appellate Counsel's Duties

United States v. Snitz, 02-3146 (September 4, 2003)

Snitz appeals from an order denying his § 2255 motion in which he claimed, among other issues, that counsel failed to pursue a direct appeal.

HELD: (1) A lawyer who disregards specific instructions to perfect a criminal appeal acts in a manner that is professionally unreasonable and presumptively prejudicial. The district court, however, denied relief because it concluded that Snitz could not have prevailed on appeal. This approach is foreclosed not only by precedent but because it is contrary to the broader values embodied in the criminal appellate process. There is no way to reconcile the district court's decision with the precept that courts do not consider the merits of arguments that the defendant might have made on appeal. Every direct criminal appeal should be briefed on the merits by counsel and decided accordingly by court rules, after thorough review. An appellate lawyer must master the trial record, thoroughly research the law, and exercise judgment in identifying the arguments that may be advanced on appeal before any finding that an appeal is wholly frivolous under Anders. It is the court and not counsel which decides whether a case is frivolous.

Habeas Corpus (28 U.S.C. § 2254)

Procedural Bar - No Adequate State Rule

Ineffective Assistance of Counsel

Anderson v. Attorney General, 02-3122 (September 3, 2003)

(Howard A. Pincus, FPD, Denver, Colorado)

Anderson was convicted of aggravated sexual battery. He sought habeas corpus relief pursuant to 28 U.S.C. § 2254 based on ineffective assistance of counsel. The district court denied the petition.

HELD: (1) The court reviews de novo whether claims are procedurally barred. State procedural rules that bar ineffective assistance of counsel claims are reviewed with a healthy degree of scepticism. Absent cause or prejudice or a showing of a fundamental miscarriage of justice, the federal court is barred from reviewing the claims of a petitioner which had been procedurally defaulted in state court under an adequate and independent state procedural rule. A procedural rule is independent if it is based upon state law, rather than federal law. To be adequate, a state procedural rule must have been firmly established and regularly followed by the time it is to be applied. Under Kansas law, claims of ineffective assistance of counsel, which were not raised and considered by the trial court, can be pursued through a motion to the appeals court to remand to the trial court for further fact findings or a collateral proceeding. Issues which were presented and considered by the trial court, however, must be presented on direct appeal; if not, the issues are deemed waived. The Kansas court reasoned that Anderson's oral assertion of ineffective assistance at the motion for new trial sufficiently raised the issue. Under Kansas law, a motion for new trial shall be made within 10 days after the verdict or finding of guilty, or within such further time as the court may fix during the 10 day period. Under Kansas law, in Myrick, ineffective assistance of counsel claims asserted after the 10 days have expired are not properly before the trial court. Anderson raised his claim well after the 10-day period expired. And the court had already ruled on the new trial motion before he made the statements alleging ineffective assistance. Thus, Anderson's oral claim of ineffective assistance was untimely, was not properly before the trial court. Therefore, it could not have been raised on direct appeal but rather only in a state collateral proceeding or a remand motion. At the time of Anderson's hearing, Kansas did not have a firmly established and regularly followed rule pursuant to which an ineffective assistance of counsel claim, presented to the trial court in an untimely manner, is procedurally defaulted if not raised on direct appeal. Therefore, there was no procedural bar to considering this claim in the § 2254 proceeding.

Motion to Suppress - Review Standard

Border Patrol Stop - Brignoni Factors

United States v. Quintana-Garcia, 02-2127 (September 9, 2003)

Quintana entered a conditional guilty plea to conspiring to possess with intent to distribute less than 50 kilograms of marijuana, and the substantive offense. She reserved her right to appeal the denial of a motion to suppress evidence obtained as the result of a border patrol agent's allegedly illegal stop of a vehicle in which she was traveling.

HELD: (1) In reviewing a district court's denial of a motion to suppress, the court accepts the district court's fact findings unless they are clearly erroneous. The court reviews de novo the ultimate question of Fourth Amendment reasonableness. The Fourth Amendment prohibits unreasonable searches and seizures. Its protections extend to brief investigatory stops of persons or vehicles that fall short of a traditional arrest. The requirements of the Fourth Amendment are satisfied if the officer's action is supported by reasonable suspicion. The courts look to the totality of the circumstances. Officers must be permitted to draw on their own experience and specialized training to make inferences and deductions. In determining whether a stop in a border area is supported by reasonable suspicion, the court considers characteristics of the area, proximity of the area to the border, usual patterns of traffic on that road, previous experience of the agent with alien traffic, information about recent illegal border crossings in the area, the driver's behavior, aspects of the vehicle, and the appearance that the vehicle is heavily loaded. The court must not engage in the kind of divide-and- conquer analysis, that is, it must not separate out each factor just because each factor, standing alone, might be readily susceptible of an innocent explanation. The district court held that the totality of the circumstances gave the agent reasonable suspicion. The factors are the Brignoni-Ponce factors. The district court was correct.

Identification Procedures - Gapped Tooth, Race, Pretrial, In-Court, Reliability

Prosecutorial Misconduct - Discretion to Charge Federally Rather than in State, Separation of Powers, Severity of Federal Penalty

Motion to Suppress - Review Standard

Confession

Admission of Evidence - Discretion Standard, Videotape of Robbery

Hobbs Act - Interstate Commerce Element, Instructions, Sufficient Evidence, Depletion of Assets Theory

United States v. Curtis, 02-5047 (September 17, 2003)

Curtis was convicted of 8 counts of Hobbs Act robbery and 8 counts of using a gun during a crime of violence, in violation of 18 U.S.C. § 924(c). The charges stem from a string of 8 armed robberies that took place in Tulsa over a ten- day period in December 2000.

HELD: (1) The court reviews de novo the constitutionality of identification procedures, but reviews for clear error the factual basis for the district court's decision. The court examines whether the in-court identification procedure was so suggestive that it denied the defendant due process of law. If there is a substantial likelihood of irreparable misidentification under an in-court identification procedure, the district court should take the eyewitness credibility issue from the jury. The district court's order that the defendant show his gapped teeth to the jury was reasonable in light of the corroborative testimony by two of the victims. The defendant's display of his teeth allowed the jury to make its own comparison between the description of the witnesses and the defendant's actual appearance. The defendant was the only black person in the courtroom for most of the trial. This may be suggestive but not unconstitutionally so.

(2) Where the circumstances of a pretrial or in-trial identification are suggestive, reliability is the linchpin. The identification was sufficiently reliable and not so suggestive as to constitute a due process violation.

(3) So long as a prosecutor's charging decision is not based on an impermissible factor such as race, a prosecutor may exercise broad discretion with respect to his charging decisions. Nor is it impermissible for a prosecutor to base his decisions on whether harsher penalties are available in federal or state court.

This court has rejected the argument that a prosecutor's control of a charging decision and plea bargaining practices violates due process. The case law forecloses the due process challenge to the decision to prosecute the defendant in federal rather than state court.

(4) The defendant argues that the prosecutor's unfettered discretion to file federal charges violates the separation of powers because of the number of mandatory consecutive counts filed in the armed robbery prosecution. But regardless of whether the charges are filed in federal or state court, regardless of the severity of the federal penalty, the prosecution must still must prove its case beyond a reasonable doubt. The separation of powers argument was rejected.

(5) In reviewing the denial of a motion to suppress, the court accepts the district court's fact findings unless clearly erroneous, and the ultimate issue of voluntariness of a statement is reviewed de novo. Waiver of the Fifth Amendment privilege against self-incrimination requires that the individual voluntary, knowingly and intelligently waive his constitutional privilege. The court rejected the argument that the confession was not knowingly and voluntarily given because of the fact that the defendant had used drugs and alcohol earlier in the day.

(6) The court reviews a district court's evidentiary rulings for abuse of discretion. The defendant argued that the videotaped evidence of the robbery should not have been admitted. But evidence is not unfairly prejudicial just because it damages an opponent's case. Nothing in the record suggests that the potentially prejudicial impact of the videotape outweighed their probative value.

(7) The district court's jury instructions on the Hobbs Act charges were correct. The court reviews de novo a timely challenge to a jury instruction and considers the instructions as a whole to determine whether the jury was misled. Only a potential effect on commerce is required to satisfy the interstate commerce element. The question was whether the instructions that state that the defendants could have obstructed or delayed or affected commerce was wrong, and that the instruction should have read a defendant must have obstructed or delayed commerce. This court has previously upheld jury instructions almost identical to the one given. One panel could not overturn a decision of another panel.

(8) The evidence was sufficient to show the effect on interstate commerce necessary for Hobbs Act convictions under 18 U.S.C. § 1951. Even though only small amounts were stolen in the 8 robberies, Tenth Circuit precedent requires rejection of this argument. The court reviews the sufficiency of the evidence de novo. The Hobbs Act does not require that a robbery have a substantial effect on interstate commerce. The statute reaches robberies that in any way or degree obstruct, delay or effect commerce. The aggregation/depletion-of-assets theory is based on the Supreme Court's decision in Wickard v. Filburn. The government is not required to show that the particular stolen dollars would have entered the stream of interstate commerce, but need show only that the stolen dollars depleted the total assets of the restaurant which were available to engage in interstate commerce. This court has previously found a sufficient nexus to interstate commerce based on direct and indirect links.

Downward Departure - Family Responsibilities

United States v. Reyes-Rodriguez, 02-2147 (September 19, 2003)

(Jane Greek, FPD, Las Cruces, New Mexico)

Rodriguez pleaded guilty to illegal reentering the United States following deportation for an aggravated felony in violation of 8 U.S.C. § 1326(b)(2). The district court departed downward 8 levels from offense level 31 to 13, resulting in a range of imprisonment of 30 to 37 months. The reason for this departure was extraordinary family circumstances. The government appealed, and the circuit reversed and remanded for resentencing.

HELD: (1) Family ties and responsibility are not ordinarily relevant in determining whether a sentence should be outside the guideline range. The district court may depart only if a factor is present to an exceptional degree. The burden is on the defendant to provide evidence sufficient to support a claim that his family circumstances are outside the heartland. This court reviews departures under a unitary abuse-of-discretion standard. Despite the genuinely disheartened facts regarding Rodriguez's family, his situation does not fall outside the heartland. The court did not doubt the support and care Rodriguez would provide for his parents, and recognized the extreme poverty in which his parents lived and the limited medical care. But the care and support Rodriguez will provide upon his return to Mexico is not so specialized and unique that only he can provide it. He has siblings who live near his parents.