AEDPA - § 2255 Actions, Statute of Limitations, After Direct Appeal, Judgment is Final After Time For Seeking Certiorari Has Expired

United States v. Burch, 98-3301 (February 1, 2000)

Defendant was convicted of conspiring to possess with intent to distribute a controlled substance. Her conviction was affirmed on May 22, 1997 and the circuit denied rehearing June 20, 1997. She did not petition the United States Supreme Court for writ of certiorari. On August 31, 1998, she filed a § 2255 action which the district court dismissed as time barred. The AEDPA allows federal prisoners one year from the date on which a judgment of conviction becomes final to file such motion to vacate sentence. The circuits are split on the question of when a judgment of conviction becomes final, where a defendant does not petition the United States Supreme Court for writ of certiorari.

HELD: 

(1) Review of statutory interpretation is de novo.

(2) The circuit joined the Third Circuit in holding for purposes of § 2255, if a prisoner does not file a petition for writ of certiorari with the United States Supreme Court after direct appeal, the one year limitation period begins to run when the time for filing a certiorari petition expires.

AEDPA - § 2255 Actions, Statute of Limitations, Judgment is Final Upon Denial of Certiorari Notwithstanding Possibility of Petition For Rehearing

Defendant was convicted of conspiracy to commit bank larceny and assault. The Tenth Circuit affirmed and the United States Supreme Court denied his petition for writ of certiorari on June 27, 1997. He filed a motion to vacate sentence on July 16, 1998. The district court denied the motion as untimely.

(1) The AEDPA establishes a one year limitation period that begins to run on the date the defendant's judgment of conviction became final. Absent an actual suspension of an order denying certiorari by the Court or a Justice, a judgment of conviction is final for purposes of the one year limitation period in § 2255 when the United States Supreme Court denies a petition for writ of certiorari after a direct appeal, regardless of whether a petition for rehearing from the denial of certiorari is filed. Therefore a defendant's judgment of conviction is final when the U.S. Supreme Court denies his petition for writ of certiorari, notwithstanding that he could have filed the petition for rehearing of the order within 25 days after denial of certiorari.

Firearms - Possession While Under Domestic Violence Restricting Order, Due Process Does Not Require Actual Knowledge of Federal Law, No Element of Intent to Harm;  Due Process - Notice, Ignorance of Law;  Admission of Evidence - Discretion, "No Intent to Harm Others" Defense

United States v. Reddick, 99-6211 (February 15, 2000)

Reddick was charged with possession of a firearm while under a domestic violence restraining order in violation of 18 U.S.C. § 922(g)(8). He plead not guilty and waived his right to jury trial. The district court found him guilty. He made an offer of proof that he did not know that possession of a firearm, while under a domestic violence restraining order, was illegal.

HELD: 

(1) The court reviews this claim of constitutional error de novo. The Tenth Circuit agreed with other circuits that due process does not require actual knowledge of the federal statute.

(2) Reddick argued that the statute was designed to protect the person who obtained the protective order, and he possessed the firearm to harm only himself and thus did not violate the intent of the law. The district court refused to allow the "no intent to harm others" defense. The circuit reviewed the district court's exclusion of this evidence for abuse of discretion, and reviewed de novo the district court's interpretation of the applicable law. Because prior to the trial Reddick had agreed that lack of intent to harm the person covered by the protective order is not a defense, he is precluded from raising the argument on appeal. In addition, the argument is without merit. The statute does not require any intent to harm the person protected by the restraining order.

Habeas Corpus (28 U.S.C. § 2254) - AEDPA Not Apply, State Law Questions;  HAC Aggravator - Sufficient Evidence, Torture or Serious Physical Abuse, Before Death;  Reweighing - Facts in Appellate Opinion;  Procedural Default - Cause and Prejudice, Miscarriage of Justice;  Self-Incrimination (5th Amendment);  Cross Examination (6th Amendment) - Waiver, Bias, Harmless;  Waiver - Motion, Offer of Proof;  Not Guilty By Reason of Insanity;  Ineffective Assistance of Counsel;  Prosecutorial Misconduct - Comments Concerning Societal Alarm

Jones v. Gibson, 98-6370 (February 15, 2000); (Vicki Ruth Adams Werneke, FPD, Death Penalty Federal Habeas Corpus Division, Oklahoma City, Oklahoma)

Jones was found guilty of first degree murder and other charges and was sentenced to death. The OCCA affirmed both the direct appeal and the denial of post-conviction relief. Jones sought habeas corpus relief. After directing Jones to exhaust state court remedies, the district court administratively closed the case without prejudice to reopening. Jones then filed a second application for state post-conviction relief which was denied. He then filed a revised federal habeas petition, the district court reopened the case, and then denied relief.

HELD: 

(1) Because Jones filed his initial federal habeas petition long before the effective date of the AEDPA, the AEDPA does not apply. Under pre-AEDPA law, the court affords a presumption of correctness to state court factual determinations and reviews the district court's conclusions of law de novo and its fact findings for clear error.

(2) Jones argues there was insufficient evidence to support the heinous and cruel aggravator because there was no evidence to support the OCCA's finding the unarmed victim lay wounded and pleaded for his life. This court reviews the state court's application of the narrowed definition for the HAC aggravator under the "rational fact finder" standard, and will uphold the state appellate court's determination so long as a rational fact finder could have found that the crime involved torture or physical abuse. A challenge to the sufficiency of the evidence presents a question of law. Under Oklahoma law, the torture or serious physical abuse required by a properly narrowed aggravator may include infliction of great physical anguish or extreme mental cruelty. Conscious physical suffering of the victim must occur before death and any extreme mental distress must result from the petitioner's intentional acts. Any mental torture must produce mental anguish in addition to that which necessarily accompanies the underlying killing. Oklahoma law however is unclear as to the length of time a victim must be terrorized before there is mental torture. The evidence was sufficient to support a finding of torture or extreme mental cruelty under the properly narrowed aggravator.

(3) While it is preferable for the OCCA to reweigh based on a fresh review of the record, as opposed to looking at the facts recited in the direct appeal opinion, the circuit could not say that constitutional error occurs as a result.

(4) Jones argues his Fifth Amendment right to silence was violated by cross examining him about his refusal to discuss the shooting incident during his sanity evaluation, and presenting the psychiatrist who examined him to testify regarding his refusal to discuss the incident. This claim is procedurally barred where Jones failed to assert in state court his ineffective assistance of appellate counsel claim, in which this claim is intertwined. The state courts now would find this unexhausted claim procedurally barred on independent and adequate state grounds. This court will only consider a procedurally defaulted claim if the petitioner can show cause for default and resulting prejudice or a fundamental miscarriage of justice. Jones cannot show cause. He presents no reason for failing to raise this ineffective assistance of appellate counsel claim in his second post-conviction application, despite being directed to do so by the district court, and despite the OCCA's consideration of other claims of ineffective assistance of appellate counsel raised for the first time in that application. Nor will failure to review this claim result in a fundamental miscarriage of justice, because Jones cannot show actual innocence in light of his admission to the shootings.

(6) Jones did not make the cumulative error argument and the circuit need not consider it.

(7) The prosecution asked the petitioner if he knew he would go free if he were found temporarily insane. Jones maintains the prosecutor was trying to insert societal alarm into the jury's deliberations. Allegations of prosecutorial misconduct are mixed questions of law and fact. A prosecutor's improper remark will require reversal only where the remark sufficiently infected the trial so as to make it fundamentally unfair. Such inquiry involves examining the entire proceedings. An improper appeal to societal alarm typically does not amount to a denial of due process. Under Oklahoma law, if a defendant is found guilty by reason of insanity, he remains in custody until the court determines he is not presently mentally ill or dangerous to the public. Thus, the prosecutor's questions were improper under state law. Federal habeas relief is not available for state law errors, but is limited to violations of federal constitutional rights. A review of the entire proceedings does not support the argument that the prosecutor's conduct so infected the trial with unfairness as to result in a violation of due process.

Guideline Interpretations;  Acceptance of Responsibility;  Plea Agreement - Government Informed Court of Conduct Relevant to Sentencing

United States v. Prince, 99-3081 (February 18, 2000); (James P. Moran, FPD, Denver, Colorado)

HELD: 

(1) The court reviews de novo the claim that the government violated the plea agreement. A district court's denial of the adjustment for acceptance of responsibility is entitled to great deference. Application of the guidelines to the facts is a question of fact reviewed for clear error. Interpretation of the guidelines are questions of law reviewed de novo.

(2) The government agreed not to oppose a reduction in offense level for acceptance of responsibility, but provided the probation office with FBI reports of the defendant's criminal conduct that occurred while he awaited sentencing. The agreement cannot be reasonably interpreted as prohibiting the government from informing the sentencing court of conduct relevant to sentencing. A sentencing court is entitled to consider whether a defendant has voluntarily withdrawn from criminal conduct, regardless of whether the conduct is similar or related to the criminal conduct for which a defendant was convicted. Prince was convicted of bank robbery. Prince stabbed a fellow prisoner while he was awaiting sentencing. The defendant has the burden of showing he is entitled to an adjustment for acceptance of responsibility.

Judicial Assignment System - Not Structural Error, Prosecution Judge-Shopping;  Hobbs Act - Interstate Commerce;  Double Jeopardy - § 924(c) Intended As Cumulative Punishment;  Motion to Suppress - Review Standard, Arrest;  Instructions - Lesser Included, Felony Murder, Second Degree Murder, Manslaughter;  Felony Murder - Malice Aforethought;  New Trial - Recanted Testimony;  Downward Departure - Denial Not Appealable;  Recusal of Judge

United States v. Pearson, 97-3268 (February 22, 2000); (Timothy J. Henry, FPD, Wichita, Kansas)

Pearson was convicted of conspiracy, Hobbs Act robbery, and carrying or using a firearm in connection with a murder. The district court imposed concurrent sentences of 240 months for each Hobbs Act violation, and life in prison for the § 924 violation.  Two men robbed a "Mr. Goodcents" in Wichita, Kansas. As the men emptied the cash register and safe, the handgun accidently discharged, killing Amy Montgomery, the 19 year old supervisor on duty. The robbers fled with about $2,500. Pearson confessed and implicated others. During the trial and sentencing, the district court judge made remarks about Pearson, calling him a punk, predator, manipulator.  When the government had filed three separate informations against Pearson, his cousin, and another, the clerk's office assigned each case to a different U.S. District Judge. Eric Pearson's case was assigned to Judge Marten. But when the grand jury returned a consolidated superseding indictment, the consolidated case was assigned to Judge Belot. The government moved to sever the trials because Eric Pearson, had made statements implicating others. Pearson filed a motion seeking random reassignment to a new judge claiming that the government had been judge shopping. A hearing was held after which Judge Belot denied the motion.

HELD: 

(1) The court considered the claim of alleged manipulation of the judicial assignment system under both the due process clause and the court's supervisory authority under 28 U.S.C. § 2106. Pearson argued that the government's alleged judge shopping is structural error not subject to harmless error review. Congress has granted broad discretion to the federal courts in the assignment of cases to particular judges. Most federal courts that have addressed the issue of prosecutorial involvement in judicial assignments have not found due process violations. The Tenth Circuit assumed that the due process clause entitled Pearson to an impartial method of judicial assignment, and that the prosecution deprived Pearson of that right by manipulating the system. But the assumed due process violation does not warrant reversal. Supreme Court decisions have found structural error only in a very limited class of cases. The determination of whether an error is structural depends on, not only the right violated, but also the nature, context and significance of the violation. Prosecutorial involvement in the selection of a judge does not result in the same degree of deprivation as prosecutorial performance of judicial functions after the judge has been selected. A defendant who must proceed to trial before a judge selected by the prosecutor has remedies including a motion for recusal, and writ of mandamus, as well as challenging the case assignment procedure prior to trial. This assumed error is not structural.

(2) Where constitutional error is involved, the court must be persuaded that the error was harmless beyond a reasonable doubt. The government established beyond a reasonable doubt that the alleged due process violation was harmless.

(3) In considering whether Pearson's allegations of improper manipulation of the case assignment process warrant reversal, the court considers the risk of injustice to the parties, risk that denial of relief will produce injustice, and risk of undermining the public's confidence in the judicial process. The circuit was confident that the District of Kansas can adopt an assignment system that prevents prosecutors from selecting judges on the basis of the order of the defendants' names in superseding indictments.

(4) The circuit's decision in Shinault forecloses Pearson's jury selection system.

(5) The Hobbs Act is within Congress' Commerce Clause authority and Pearson's constitutional challenge to the statute was denied.

(6) Pearson claims his convictions under § 1951 and § 924 violate double jeopardy because they require proof of the same elements. Review is de novo. A person may be prosecuted for more than one crime based on the same conduct if each crime requires proof of a fact that the other does not, Blockburger, or if Congress has clearly expressed its intent to impose cumulative punishment for the same conduct under different statutory provisions. Congress has clearly expressed its intent that § 924's punishment be cumulative with the punishment for the underlying violent crime.

(7) On appeal from a denial of a motion to suppress, the court views the evidence in the light most favorable to the government and accepts district court findings of historical fact unless clearly erroneous. There was probable cause for Pearson's arrest. A warrant was not required for his arrest.

(8) Pearson contends that the evidence was insufficient and the instructions were wrong concerning § 1111(a) felony murder. His objections are based on the mistaken contention that § 1111(a) requires the government to independently establish malice aforethought to commit the killing, rather than simply to prove that the killing occurred in the course of an underlying felony. To prove malice aforethought, the prosecution need only show commission of the specified felony. Once the government has shown the defendant intended to commit the robbery and that a killing occurred in the course of the robbery, no additional proof of state of mind is necessary.

(9) Pearson asked the district court to instruct the jury on second degree murder and manslaughter as lesser included offenses to felony murder. Review is de novo of the legal question of whether an offense actually qualifies as a lesser included offense. Review is for abuse of discretion of the district court's decision of whether there is enough evidence to justify the lesser included offense instruction. A defendant is entitled to an instruction on lesser included offenses if he makes a proper request, the lesser included offenses included some but not all of the elements of the offense charged, the elements differentiating the lesser included offenses from the charged crime are in dispute, and a jury could rationally convict the defendant of one of the lesser offenses and acquit him of the greater. The district court properly denied Pearson's requested lesser included offense instructions, because a jury could not rationally convict him of either second degree murder or manslaughter. Under the facts of this case, a jury could not rationally convict Pearson of second degree murder because the robbery and accidental killing do not satisfy any of the types of implied malice aforethought required to prove that crime. There is no dispute that the firearm accidentally discharged. The only way the government was able to convict Pearson of first degree felony murder was because the commission of the robbery constructively supplied the malice aforethought element.

(10) Pearson's requested manslaughter instruction also fails to describe an offense of which he could have been rationally convicted. The accidental discharge of the gun in the commission of the robbery does not constitute voluntary manslaughter because there was no sudden quarrel or heat of passion, and the discharge could not constitute involuntary manslaughter because robbery is an unlawful act that is a felony.

(12) The circuit upheld jury instructions regarding the interstate element of the Hobbs Act in Shinault.

(13) A defendant may move within three years after final judgment for a new trial based on newly discovered evidence. He must show the evidence was discovered after trial, the failure to discover the evidence was not caused by lack of diligence, the new evidence is not merely impeaching, the new evidence is material to the principal issues involved, and the new evidence will probably produce an acquittal in a new trial. Where the new evidence is a recantation of trial testimony, the trial court must first be satisfied that the challenged original testimony was actually false. Denial of a motion for new trial is reviewed for abuse of discretion. When presented with recanted testimony, the trial court must ordinarily conduct an evidentiary hearing. But here, the trial judge was able to assess the credibility of the recantation without holding such a hearing. The witness' recantation was not made under oath. Recanted testimony is properly viewed with suspicion. The trial judge had several opportunities to assess the particular witness' credibility.

(14) The district court sentenced Pearson to life imprisonment under §2A1.1, which applies when a defendant is convicted of first degree murder. Review is de novo of an interpretation and application of the guideline. Even though the killing was accidental, commission of the robbery constitutes malice aforethought for felony murder.

(15) The court lacks jurisdiction to review the district court's refusal to depart downward based on §2A1.5 application note 5.

(16) A judge may be disqualified for bias under 28 U.S.C. § 144 or § 455. Any party must act promptly to move for recusal. Pearson could have made a recusal motion during or after the sentencing proceedings. But given the ire the district court expressed in response to Pearson's motion for new trial, the circuit did not believe that, in order to properly raise the recusal issue in this appeal, Pearson was required to file such motion just as the district court was preparing to pronounce sentence. Therefore the circuit considered Pearson's request for recusal in the first instance. A judge has a continuing duty to recuse under § 455 if sufficient factual grounds exist to cause a reasonable, objective person, knowing all the relevant facts, to question the judge's impartiality. Although the judge did use language that would indicate bias, the judge conducted a hearing on the motion for reassignment, and provided reasoned grounds for denying motions. The district court's remarks about Pearson's character also do not warrant recusal. They were all based on information learned during the course of the proceedings. It is the courts prerogative to assess the defendant's character and crimes at sentencing.

Sufficient Evidence - Standard, Tax Evasion;  New Trial - Discretion;  Tax Evasion ;Obstruct Justice (§3C1.1) - Perjury, Specific Findings;  Downward Departure - No Jurisdiction

United States v. Mounkes, (William) and Mounkes (Correen), 99-3096, 99-3098 (February 22, 2000)

HELD: 

(1) The Mounkes challenge the denial of their motions for judgment of acquittal and new trial. In determining sufficiency of the evidence, the court reviews the record de novo and takes the evidence in the light most favorable to the government. The court reviews the refusal to grant a new trial for abuse of discretion. The jury convicted the Mounkes for willfully attempting to evade personal and corporate income taxes in violation of 26 U.S.C. § 7201. The government had to prove the existence of a substantial tax liability, wilfulness, and an affirmative act constituting evasion or attempted evasion. The evidence was sufficient, and the court did not abuse its discretion in denying the motion for new trial.

(2) The court enhanced Mr. Mounkes's sentence by two points for obstruction of justice under §3C1.1 based on committing, suborning, or attempting to suborn perjury. The trial judge observed his testimony and the circuit gave deference to the trial court's finding of perjury. When the application of a guideline involves contested issues of law, review is de novo. A §3C1.1 enhancement based on perjury is appropriate when the court finds that the defendant has given false testimony concerning a material matter with the willful intent to provide false testimony, rather than as a result of confusion, mistake or faulty memory. It is well settled the sentencing court must make a specific finding that the defendant perjured himself but need not recite the perjured testimony verbatim. The court did consider Mr. Mounkes's statements in the most favorable light. The court made the independent Dunnigan findings and found that Mr. Mounk's testimony was material and willful.

(3) Mrs. Mounkes requested a one point reduction based on circumstances not contemplated by the sentencing guidelines. She had argued there were mitigating circumstances warranting a downward departure. The district court said it took Mrs. Mounkes' circumstances into consideration when it sentenced her, but did not explicitly rule on the motion for downward departure. The district court did not indicate it lacked authority to depart. Therefore the circuit lacked jurisdiction to review the denial of the departure.

Sufficient Evidence - Standard, Felon in Possession, Drug Distribution, Carry Firearm;  Possession - Joint Occupancy;  Outrageous Government Conduct;  Suppression - Motion, Search Incident to Arrest, Deliberate Falsehood;  Mistrial - Stun Belts;  Jury - Tainted in Voir Dire;  Enhanced Penalty - § 851

United States v. McKissick, 98-6320 and United States v. Zeigler, 98-6351 (February 24, 2000);  (Theresa Brown, FPD, Oklahoma City, Oklahoma)

McKissick and Zeigler were charged with felon in possession, use or carrying a firearm, and possession with intent to distribute crack. Zeigler moved to suppress evidence against him, which motion was denied. The government filed an information pursuant to 21 U.S.C. § 851, notifying Zeigler of its intent to seek enhanced penalties. The defendants were tried jointly. At the end of the government's case, the court granted Zeigler's motion for acquittal on weapons charges, counts two and six. The jury found Zeigler guilty of both drug trafficking charges and pursuant to the statutory enhancements, Zeigler was sentenced to life without parole. McKissick was found guilty of all three charges.  In Oklahoma City a drive-by shooting occurred in the nightclub parking lot. The suspect vehicle was a 1970's green Chevrolet Impala with black male suspects. An officer spotted the car and followed it to the hospital. The driver, McKissick, got out of the car and said he had been shot. Zeigler was the front seat passenger. McKissick was identified as the person who shot Tommy Simpkins. Zeigler had been patted down for weapons but another officer patted him down and found crack in his crotch area. Zeigler said the crack was his but he didn't shoot anyone.

McKissick's Appeal

HELD: 

(1) Sufficiency of the evidence to support a jury's verdict is a legal issue reviewed de novo. The court considers whether the evidence, viewed in the light most favorable to the government, is such that a reasonable jury could find the defendant guilty beyond a reasonable doubt. Denial of a motion for judgment of acquittal is reviewed under the same standard.

(2) To sustain a conviction under § 922(g), the government must prove the defendant was convicted of a felony, knowingly possessed a firearm, and the possession was in or affecting interstate commerce. The evidence was sufficient to prove McKissick knowingly possessed a firearm.

(3) To establish a violation of 21 U.S.C. § 841, the government must prove the defendant possessed a controlled substance, knew he possessed it, and intended to distribute it. Possession may be constructive or actual. In cases involving joint occupancy of a place where contraband is found, mere control or dominion over the place in which the contraband is found is not enough to establish constructive possession. The government must present direct or circumstantial evidence to show some connection or nexus individually linking the defendant to the contraband. The evidence was sufficient.

(4) McKissick was charged with knowingly carrying a firearm during and in relation to a drug trafficking crime. McKissick was not charged with use. The evidence was sufficient to satisfy the "in relation to" requirement. The evidence must support a finding that the firearm furthered the purpose or effect of the crime and that its presence or involvement was not the result of coincidence. Section 924(c) does not require the gun to be carried or used exclusively in connection with the drug trafficking crime.

Zeigler's Appeal

HELD: 

(1) In reviewing the denial of a motion to suppress, the court reviews fact findings under the clearly erroneous standard but the ultimate determination of reasonableness is reviewed de novo. The Fourth Amendment normally requires law enforcement officers to obtain a warrant, based on probable cause, before conducting a search. One exception is the search of a person incident to a lawful arrest. A warrantless search preceding an arrest is a legitimate search incident to arrest as long as the legitimate basis for the arrest existed before the search and the arrest followed shortly after the search. Arrests must be based on probable cause. After listening to the testimony, the district court rejected Zeigler's contention that the search of his person was an invasive body search, a strip search, or a body cavity search, and instead concluded Zeigler was properly searched incident to lawful arrest. The circuit found that the district court's findings were not clearly erroneous.

(2) Under Franks v. Delaware, the district court is required to hold a hearing on the veracity of an affidavit supporting a warrant if the defendant makes a substantial showing that the affidavit contains intentional or reckless false statements and if the affidavit, purged of its falsities, would not be sufficient to support a finding of probable cause. Although it would have been better had the detective included information that other officers failed to mention cocaine they observed in plain view in their reports, the circuit was not convinced that this was the result of reckless disregard for truth or a deliberate falsehood. In any event, the facts in the affidavit would have supported issuance of a search warrant even if this had been included.

(3) Zeigler claims there is no connection between him and the drugs found in the car. This is a case of constructive joint possession. Zeigler was the only passenger, cocaine was discovered on his person, the 63 grams of cocaine were discovered in plain view.

(4) The court rejected Zeigler's claim that the 16 grams found on his person was insufficient to show intent to distribute.

(5) The court reviews denial of a motion for mistrial for abuse of discretion. Before opening statements, counsel for Zeigler informed the court that the defendants were wearing stun belts beneath their clothing. The court confirmed it had approved such a precaution and noted the devices were not noticable. The court noted that the United States Marshals suspected other gang members might disrupt the proceedings. The court would not presume prejudice.

(6) During voir dire one potential juror said she had a pre-conceived idea of the defendants' guilt due to the body language they were exhibiting, and she had had experience with them due to seven and a half years of employment as a nurse at the Oklahoma Department of Corrections. The court dismissed her for cause. Both counsel moved for mistrial claiming taint. The court denied the motion but cautioned the remainder of the jury pool to disregard the remarks. When improper or prejudicial remarks are made by one veneer person and heard by others, the test of juror impartiality is whether the juror can lay aside his impression or opinion and render a verdict based on the evidence. The district court's assessment of the effect of improper statements is entitled to great weight.

(7) The court enhanced Zeigler's sentence through use of two Oklahoma drug convictions. Zeigler claimed violation of equal protection. However, Congress intentionally left certain aspects of § 841 enhancements to be triggered by laws of the various states. Section 802(13) ties the definition of "felony" to the state's classification of the crime as a felony. Zeigler was convicted as an adult for the two Oklahoma felonies. It is not irrational for Congress to defer to state law with regard to the characteristics of a prior offense and doing so is no more intentionally arbitrary than our system of federalism itself. Where the statutory mandatory minimum is greater than the guideline maximum, the statutory mandatory minimum governs. That moots other issues under the guideline calculation.

Indictment - Grand Jury, Sufficiency, De Novo, Elements;  18 U.S.C. § 1152 - Indian or Non-Indian Status of Defendant and Victim

United States v. Prentiss, 98-2040 (February 24, 2000);  (Michael A. Keefe, FPD, Albuquerque, New Mexico)

HELD: 

(1) The indictment failed to allege Prentiss' Indian or non-Indian status and the Indian or non-Indian status of the victim. Necessary elements for federal arson are under 18 U.S.C. § 1152. The court reviews a challenge to the sufficiency of a indictment de novo. An indictment is sufficient if it contains the elements of the offense charged, giving the defendant fair notice, and enabling him to assert a double jeopardy defense. A criminal conviction will not be upheld if the indictment does not set forth the essential elements. Where there is a post-verdict challenge to an indictment asserting the absence of an element, the indictment will be sufficient if it contains words of similar import to the element in question. The indictment fails to allege a victim altogether, let alone the Indian status of the victim or the Indian status of the defendant. The circuit held these are essential elements which must be alleged. Therefore Prentiss was deprived of his Fifth Amendment right to a grand jury finding of all elements of the charged offense. Section 1152 is the Indian Country Crimes Act and makes a crime occurring within Indian Country a federal crime only if the crime occurred between and Indian and a non-Indian. A crime between two non-Indians is not a federal crime. Federal criminal jurisdiction is limited by federalism concerns. States retain primary criminal jurisdiction in our system.

(2) In addition, under 18 U.S.C. § 81, the arson charge, the fact that the crime occurred within the jurisdiction of the United States is an element of the crime that must be alleged in the indictment and established at trial. Section 7 does not extend federal jurisdiction to crimes committed in Indian country. For crimes involving Indians, Congress had to consider three sovereigns, the United States, the Indian tribes and the states. Under § 1152, crimes that do not involve an Indian are state crimes; crimes between an Indian and a non-Indian are federal crimes; and crimes exclusively between Indians are matters of tribal law. Thus, unless the arson occurred within Indian country and between an Indian and a non-Indian, it is not a crime under federal law.

(3) The court rejected the government's argument that this was harmless error. Applying harmless error analysis to the total omission of an essential element would allow the prosecution to circumvent the grand jury proceeding. The circuit rejected the government's argument that stipulating to a fact before a petit jury waives the right to be tried only on facts presented to the grand jury. Prentiss' stipulation to the Indian status of the victim does not cure the fact that the grand jury did not consider the Indian status of both the defendant and the victim. Therefore the court vacated Prentiss' arson conviction and remanded for further proceedings.

Rodgers v. Wyoming Attorney General, 98-8111 and 99-8022 (February 29, 2000);  (Daniel G. Blythe, Cheyenne, Wyoming)

Rodgers appeals from the denial of his § 2254 action, alleging ineffective assistance of counsel. The circuit denied a certificate of probable cause because Rodgers failed to make a substantial showing of a denial of a federal right. His appeal from the district court's denial of his motion for relief from judgment, Rule 60(b), was dismissed as moot.  Rodgers plead guilty to first degree sexual assault and was sentenced. He did not appeal. Later he sought state post-conviction relief alleging ineffective assistance of counsel regarding failure to pursue an allegedly exculpatory investigative report.

HELD: 

(1) The deadline for filing a notice of appeal in a civil case expires 30 days after the judgment is entered. The notice of appeal requirement should be liberally construed. This court has often permitted a certificate of probable cause to serve as a notice of appeal. Although Rodgers' notice of appeal was filed late, his motion for CPC was filed within the required time.

(2) To establish an ineffective assistance claim, a defendant must show deficient performance and prejudice. In the guilty plea context, the defendant must show he would not have plead guilty and would have gone to trial.

(3) The denial of the Rule 60(b) motion is rendered moot by the circuit's decision that a motion for CPC is the functional equivalent of a notice of appeal.

Habeas Corpus (28 U.S.C. § 2241);  Aliens - IIRIRA, Indefinite Detention of Removable Alien, Constitutional Right

Ho v. Greene, 98-1333 and 99-1256 and Nguyen v. Green, 99-1182; (February 29, 2000)

Ho and Nguyen were convicted of aggravated felonies and ordered removed from the United States. Upon release from state prison, each was taken into INS custody. Because their country of origin, Vietnam, would not accept their return, petitioners were detained in an INS detention facility. They filed habeas petitions pursuant to 28 U.S.C. § 2241. They did not contest their deportability, but claimed the Attorney General lacked statutory authority to detain them indefinitely. The district court granted the petitions and ordered the petitioners released on bond. The circuit held the detention is statutorily authorized, and such indefinite detention of a removable alien also does not violate any substantive or procedural due process rights under the Fifth Amendment.

HELD: 

(1) Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. The IIRIRA made comprehensive changes to the Immigration and Nationality Act (INA). Neither the permanent, transitional, nor pre-IIRIRA provisions of the INA bar judicial review of the claims brought in these § 2241 habeas petitions.

(2) Former 8 U.S.C. § 1226(e) authorizes the Attorney General to continue to detain an excludable alien who has been convicted of an aggravated felony after the entry of a final order of exclusion. That statute deals with Ho's case.

(3) 8 U.S.C. § 1231(a)(6) governs the questions of Nguyen's continued detention. Under that statute, once an alien is ordered removed, the Attorney General shall remove the alien from the United States within 90 days. However, the statute expressly contemplates that the Attorney General may be unable to remove certain aliens. The Attorney General has determined that Nguyen is a risk to the community and unlikely to comply with the order of removal if released from incarceration. The statute clearly authorizes the Attorney General to detain Nguyen beyond the 90 day removal period.

(4) The next question is whether such indefinite detention is unconstitutional. In its prior decision in Rodriguez-Fernandez, the Tenth Circuit had noted that indefinite detention would raise significant constitutional problems. This is dicta and not binding. Aliens who are physically present in this country but who are not lawful permanent residents, are entitled to some of the protections of the Fifth Amendment. But physical presence alone does not confer heightened constitutional rights on an alien seeking admission to this country. They have no constitutional rights regarding their application for admission. Petitioners have been ordered deported and those orders are final. Such final removal orders stripped them both of any heightened constitutional status. This stripping of heightened status applies to Nguyen as a resident alien as well. The petitioners are properly characterized as inadmissible aliens seeking temporary entry into the United States. They have not demonstrated a liberty interest for purposes of the due process clause. (Borby dissented on the constitutional issue).