tag:blogger.com,1999:blog-86561512009-08-08T11:03:47.757-07:00Appellate Law & PracticeThis blog is devoted to appellate law and will provide case summaries and links to articles on appellate advocacy. Please send your news and views to Appellate [at] gmail [dot] com. We also welcome new contributors. Email us if you are interested.Reversible Errornoreply@blogger.comBlogger170125tag:blogger.com,1999:blog-8656151.post-1101849470459992792004-11-30T13:16:00.000-08:002004-11-30T13:17:50.460-08:00Appellate Law & Practice has moved. You can find our new and improved blog (complete with categories that organize decisions by circuit) here. I will upload the original posts from this blog sometime within the the next couple of weeks.
Reversible Errornoreply@blogger.com77tag:blogger.com,1999:blog-8656151.post-1101826108623137832004-11-30T09:05:00.000-08:002004-11-30T06:48:28.633-08:00CA11 -- State Concession of Timeliness Not Dispositive in Habeas Case
The Eleventh Circuit yesterday in Day v. Crosby held that, notwithstanding the State's concession that a habeas petition was timely filed, the district court could sua sponte dismiss the petition if it was in fact late. The Court held that the AEDPA mandates a distinction between habeas cases and ordinary civil cases, where aMilbargehttp://www.blogger.com/profile/16695003743500079416noreply@blogger.com0tag:blogger.com,1999:blog-8656151.post-1101835098694201842004-11-30T09:03:00.000-08:002004-11-30T09:18:18.706-08:00It suffices to warn a criminal defendant that he does not know what he is doing but we can no longer say, "I was investigating because I was told Defendant is a crook."
The Sixth Circuit ruled today that Farretta warnings are not necessary when a defendant merely supplements his counsel's examination in hybrid representation and that Crawford v. Washington, 124 S. Ct. 1354 (2004) requires Sixth Circuithttp://www.blogger.com/profile/04066183359693773625noreply@blogger.com0tag:blogger.com,1999:blog-8656151.post-1101833670418104242004-11-30T08:51:00.000-08:002004-11-30T08:54:30.420-08:00CA2 (11.29.04)
In yesterday's only opinion, the Second Circuit held that Blakely v. Washington did not create "a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court," such that a second or successive habeas petition based on a purported Blakely violation would be permitted.
Happy Fun Lawyerhttp://www.blogger.com/profile/10251083966952003625noreply@blogger.com0tag:blogger.com,1999:blog-8656151.post-1101828934316156182004-11-30T07:29:00.000-08:002004-11-30T09:11:16.583-08:00CA1 (11.30.04)
Mandamus? Removal? I can’t tell !
Although I am not sure exactly what the First Circuit did, AP reports here that with regard to what appears dueling views on whether an arguably late-filed removal was valid:
...it emerged that the First Circuit Court of Appeals in Boston authorized Dominguez to continue hearing the case and left it to his discretion whether to respond to 123noreply@blogger.com0tag:blogger.com,1999:blog-8656151.post-1101779231515939782004-11-29T17:36:00.000-08:002004-11-29T17:48:45.546-08:00 California (11.29.04)
People v. Seel, S106273, the Court held that Apprendi’s double jeopardy protections preclude a retrial of the premeditation penalty provision after an appellate court has held there was no evidence of premeditation. The defendant, Seel, was convicted of attempted premeditated murder and sentenced to life in prison with parole, plus 20 years. But an intermediate appellate Heather Thttp://www.blogger.com/profile/06922329568205583049noreply@blogger.com0tag:blogger.com,1999:blog-8656151.post-1101775638317569352004-11-29T16:42:00.000-08:002004-11-29T16:51:49.493-08:00California Supremes Deny Peterson's Petition
The California Supreme Court is reporting here that it has denied Scott Peterson’s petition for an emergency stay of penalty phase proceedings, scheduled to start Tuesday morning. Mark Geragos, Peterson’s lawyer, requested a new jury and change of venue. In his brief Geragos argued that when jurors were released from sequestration, the community Heather Thttp://www.blogger.com/profile/06922329568205583049noreply@blogger.com0tag:blogger.com,1999:blog-8656151.post-1101772738128649902004-11-29T15:57:00.000-08:002004-11-29T16:01:39.543-08:00Ashcroft v. Raich Oral Argument Report
Timothy Lynch of the Cato Institute attened the oral argument today in Ashcroft v. Raich and has presented his assessment here.
Reversible Errornoreply@blogger.com0tag:blogger.com,1999:blog-8656151.post-1101765560209477142004-11-29T13:47:00.000-08:002004-11-30T04:09:25.983-08:00CA1 (11.29.04)
Hate Christmas? Love Pot? Take the T.
One opinion today. Ridley v. MBTA, 03-1970, 03-2285.
In short, people who want to legalize pot and a religious group which does not like Christmas (not the Jehova’s Witnesses) were denied the ability to put up signs advertising for their cases on the “T” in Boston. You can read their websites here here: Anti-Christmas; Pro-Pot. 123noreply@blogger.com0tag:blogger.com,1999:blog-8656151.post-1101760556809239812004-11-29T13:10:00.000-08:002004-11-29T12:35:56.810-08:00Judge Rogers waxes eloquent, and a Ruger, Mini 14 Ranch Rifle is a semiautomatic assault weapon
The Sixth Circuit held that a Ruger, Mini 14 Ranch Rifle is a semiautomatic assault weapon as defined in 18 U.S.C. § 921(a)(30). See United States v. Oliver, No. 03-5586. The defendant had argued that the his weapon did not meet the statutory definition's requirement that a pistol grip be ""beneath Sixth Circuithttp://www.blogger.com/profile/04066183359693773625noreply@blogger.com0tag:blogger.com,1999:blog-8656151.post-1101563837366675562004-11-27T05:46:00.000-08:002004-11-27T20:05:06.066-08:00 The Appellate Practice Bookworm Over this long thanksgiving weekend, we should give thanks that it will be over soon, and we can get back to real law stuff. Not just blogs and academic papers. From SSRN, we have Steven Shavell, The Appeals Process and Adjudicator Incentives, Harvard Law and Economics Discussion Paper No. 485. http://ssrn.com/abstract=623284 In this article, 123noreply@blogger.com0tag:blogger.com,1999:blog-8656151.post-1101483987874349602004-11-26T07:38:00.000-08:002004-11-26T15:08:24.420-08:00Appellate Bloggerhood
Since not too much will be happening today, it might be worth your time to get to know the various characters in the appellate and tax bloggerhoods.
The most recent entry in the blog of the Puerto Rico Association of Criminal Defense Lawyers provides a link to the oral argument in Shepard v. US before the Supreme Court. Mr. Lincoln writes that "Shepard is the ACCA [123noreply@blogger.com0tag:blogger.com,1999:blog-8656151.post-1101436452943695242004-11-25T18:33:00.000-08:002004-11-25T18:34:51.886-08:00CA11 -- No "Confrontation" if Witnesses Are Overseas
In a very interesting opinion, the Eleventh Circuit yesterday in United States v. Yates reversed a conviction because two Government witnesses testified via television from Australia. The Court held that the procedures used here (the witnesses were in a room in Australia, and all the trial participants, including the clerk who swore the oath,Milbargehttp://www.blogger.com/profile/16695003743500079416noreply@blogger.com0tag:blogger.com,1999:blog-8656151.post-1101417231232841282004-11-25T13:13:00.000-08:002004-11-25T13:13:51.233-08:00Hamdan Thanksgiving update
The SCOTUSblog has a Thanksgiving post entitled "Government opposes Hamdan fast-track request."123noreply@blogger.com0tag:blogger.com,1999:blog-8656151.post-1101337319820157742004-11-24T14:54:00.000-08:002004-11-25T14:56:23.190-08:00CA1 (11.24.04)
Six opinions today from Boston.
But first, Tom Lincoln provides some insight as to just how quickly Puerto Rico’s election disputes will make it to Boston.It seems that the District Court and the Puerto Rico Supreme Court disagree on whether or not a petition for removal was timely filed.So, this will be fun. See, also, the Washington Post's article. Abortion: The Topic We 123noreply@blogger.com0tag:blogger.com,1999:blog-8656151.post-1101327922524638412004-11-24T13:12:00.000-08:002004-11-24T12:46:52.680-08:00CA9 (11.24.04)
The Ninth Circuit today denied rehearing en banc of Thai v. Aschroft over a dissent signed by five judges and written by Judge Alex Kozinski.
Kozinski's dissent accuses the panel of overextending Zadvydas v. Davis (construing section 1231(a)(6) as authorizing the AG to hold an alien for no more than six months, but not dealing with aliens that pose a risk to the public or securityPubliushttp://www.blogger.com/profile/16260037171664200434noreply@blogger.com0tag:blogger.com,1999:blog-8656151.post-1101315697493238442004-11-24T08:59:00.000-08:002004-11-24T09:01:37.493-08:00I Shiver with Anticipation
Professor Berman reports here that:
I have on very good authority that the Supreme Court will be issuing at least one opinion on Tuesday, November 30. Thus, it is highly possible that we are less than a week away from a decision in Booker and Fanfan.123noreply@blogger.com0tag:blogger.com,1999:blog-8656151.post-1101314910272011102004-11-24T08:15:00.000-08:002004-11-24T08:52:58.680-08:00CA5 (11.23.04)
Constitution doesn't always protect against cronyism
In Alexander v. Eeds, the Fifth Circuit considered the § 1983 claims of police lieutenants who were denied promotion to the rank of narcotics service captain, allegedly because of cronyism and retaliation for protected speech. Among other things, the plaintiffs alleged that an examination used to select candidates for promotionRayhttp://www.blogger.com/profile/14585202523790298174noreply@blogger.com0tag:blogger.com,1999:blog-8656151.post-1101313437137310882004-11-24T08:14:00.000-08:002004-11-24T08:23:57.136-08:00CA2 (10.24.04)
The New York Court of Appeals today answered a series of questions prevoiusly certified by the Second Circuit regarding the standard to be applied in determining a reasonable fee award in discrimination cases where the plaintiff receives only nominal damages. In sum and substance, the New York court adopted the standard announced by the Supreme Court in Farrar v. Hobby.
(Thanks Happy Fun Lawyerhttp://www.blogger.com/profile/10251083966952003625noreply@blogger.com2tag:blogger.com,1999:blog-8656151.post-1101237362929689932004-11-23T11:14:00.001-08:002004-11-24T08:23:04.093-08:00CA1 (11.23.04)
(Update: Nadherny v. Roseland and some news tidbits appears at the bottom)
Five Opinions Today.
In US v. Carrasco-mateo, No. 03-1553, Judge Selya utilized his vocabulary to hold that someone who probably doesn’t speak English too well was sentenced properly by the District Court after a guilty plea. Carrasco-mateo had been convicted in a New York state court, paroled to the INS 123noreply@blogger.com2tag:blogger.com,1999:blog-8656151.post-1101238451949646592004-11-23T11:14:00.000-08:002004-11-24T07:37:13.713-08:00CA2 (10.23.04)
Four new ones so far today, although none are particularly ground-breaking. In Thai v. United States, the court denied as moot the petitioner's request to file a second or consecutive habeas petition; after supplemental briefing, the court determined that Thai's initial habeas petition did not count. The court, in coming to this conclusion, resolved an apparent question of first Happy Fun Lawyerhttp://www.blogger.com/profile/10251083966952003625noreply@blogger.com1tag:blogger.com,1999:blog-8656151.post-1101225127702381952004-11-23T07:45:00.000-08:002004-11-23T07:52:07.703-08:00More CERCLA Fun
The Sixth Circuit has released another opinion concerning CERCLA and Michigan NREPA, this time considering whether response costs were "necessary" under these statutes. See Milford v. K H Holding Corp., No. 03-1597.
Sixth Circuithttp://www.blogger.com/profile/04066183359693773625noreply@blogger.com0tag:blogger.com,1999:blog-8656151.post-1101222343571056072004-11-23T06:53:00.000-08:002004-11-23T18:37:33.306-08:00Hamdan Leapfrogging to the SCOTUS
(see bottom for updates)
For those of you who did not hear the news, the SCOTUSBLOG reports that Commander Swift, Professor Katyal, and their supporting cast at Perkins Coie have filed at the Supreme Court for a “Petition for Writ of Certiorari Before Judgment” in Hamdan v. Rumsfeld. This case, as you know, "The District Court found [here] that the procedures 123noreply@blogger.com0tag:blogger.com,1999:blog-8656151.post-1101161094937555062004-11-22T13:55:00.000-08:002004-11-23T15:31:45.730-08:00CA1 (10.22.04)
There doesn’t seem to be any opinions coming from Boston today, so I will look to the lay press. The Republican reports here that in Sgt. Robert Wagner's whistleblower lawsuit, the briefs from all sides are in. By way of backgroun Lisa K. Bruno of Massachusetts Lawyers Weekly writes here that this will be an appeal of a case where.
The officers filed their multi-count 123noreply@blogger.com0tag:blogger.com,1999:blog-8656151.post-1101156706586232492004-11-22T13:36:00.000-08:002004-11-22T13:01:00.000-08:00The next big appellate seminar
The 20th Annual Fifth Circuit Appellate Seminar is scheduled for April 7-8, 2005 in New Orleans at the J.W. Marriott Hotel. According to the seminar planners, so far the card includes Maureen Mahoney and Barrett Prettyman (Supreme Court practice), Alan Childress (what else? standards of review), Michael Rubin (professionalism), and Susan Wagner (interlocutory Rayhttp://www.blogger.com/profile/14585202523790298174noreply@blogger.com0