Appellate Law & Practice

2004-11-30T13:16:00.000-08:00

Appellate 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.

2004-11-30T09:05:00.000-08:00

CA11 -- 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 a

2004-11-30T09:03:00.000-08:00

It 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

2004-11-30T08:51:00.000-08:00

CA2 (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.

2004-11-30T07:29:00.000-08:00

CA1 (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

2004-11-29T17:36:00.000-08:00

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

2004-11-29T16:42:00.000-08:00

California 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

2004-11-29T15:57:00.000-08:00

Ashcroft 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.

2004-11-29T13:47:00.000-08:00

CA1 (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.

2004-11-29T13:10:00.000-08:00

Judge 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

2004-11-27T05:46:00.000-08:00

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,

2004-11-26T07:38:00.000-08:00

Appellate 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 [

2004-11-25T18:33:00.000-08:00

CA11 -- 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,

2004-11-25T13:13:00.000-08:00

Hamdan Thanksgiving update The SCOTUSblog has a Thanksgiving post entitled "Government opposes Hamdan fast-track request."

2004-11-24T14:54:00.000-08:00

CA1 (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

2004-11-24T13:12:00.000-08:00

CA9 (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 security

2004-11-24T08:59:00.000-08:00

I 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.

2004-11-24T08:15:00.000-08:00

CA5 (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 promotion

2004-11-24T08:14:00.000-08:00

CA2 (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

2004-11-23T11:14:00.001-08:00

CA1 (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

2004-11-23T11:14:00.000-08:00

CA2 (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

2004-11-23T07:45:00.000-08:00

More 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.

2004-11-23T06:53:00.000-08:00

Hamdan 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

2004-11-22T13:55:00.000-08:00

CA1 (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

2004-11-22T13:36:00.000-08:00

The 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

2004-11-22T13:13:00.000-08:00

Assignment of Income, Contingent Fees, and all that. Thanks to the Scotusblog, I now know that the oral argument in CIR v. Banks and Banaitis, No. 03-907 is available here. The issue is one near and dear to the hearts of attorney, whether under 26 USC Sec. 61, contingent fees paid to lawyers are excludable from gross income? The Sixth Circuit (Banks) and the Ninth Circuit (Banaitis) stand

2004-11-22T13:00:00.000-08:00

CA2 (10.22.04) In today's first opinion, the court reversed a grant of a habeas petition. The petitioner asserted that the prosecutor in his state court case improperly struck a hispanic juror in violation of Batson v. Kentucky; the district court agreed and ordered a new trial. The CA2, however, found that the state appellate court rejected petitioner's Batson challenge because of a procedural

2004-11-22T08:30:00.000-08:00

CERCLA Liability for Arrangers of Disposal of Hazardous Waste The Sixth Circuit has issued an opinion analyzing CERCLA's imposition of liability on any person who "arrange[s]" "by contract, agreement or otherwise" for the "disposal or treatment . . . [or] for transport for disposal or treatment" of "hazardous substances" that is "owned or possessed" by that person. 42 U.S.C. § 9607(a)(3). See

2004-11-22T08:23:00.000-08:00

The House of Sand and Blog (CA11 and CA4) First, allow me to introduce myself. I blog under the pseudonym "Milbarge," and my usual base of operations is the blog Begging the Question. I'm a 2002 law school graduate who spent two years working as a staff attorney for one of the federal courts of appeals, and is now clerking in the chambers of a judge on a different court of appeals. I'm excited

2004-11-22T07:42:00.000-08:00

CA2 (10.22.04) We at Appellate Law & Practice mourn the passing of Judge Ellsworth Van Graafeiland over the weekend at the age of 89. Judge Van Graafeiland died one month to the day before what would have been his thirtieth anniversary on the bench. His last opinion was quite memorable.

2004-11-22T06:26:00.000-08:00

CA2 (10.22.04) On Friday, I composed a lengthy post about the three then-newly released Second Circuit opinions. Unfortunately, Blogger promptly ate my post, so all you get now is the quick and dirty version. You're not missing much. In Gill v. Pidlypchak, the court reversed the dismissal of a prisoner's First Amendment retaliation claim. The district court had dismissed finding that the

2004-11-21T08:14:00.000-08:00

And on to Tax Matters. Or, as they say in Texas, “On to Tax Matters, Partner.” Edges of Foundations The Sixth Circuit decided “Lapham Foundation, Inc. v. C.I.R., No. 03-1229. In this case, the court upheld the decision of the Tax Court which held that the Lapham foundation is not a “supporting organization” of the American Endowment Foundation under 26 U.S.C. 509. AEF is one of these “donor

2004-11-21T07:36:00.000-08:00

Appellate Practice Bookworm Since it is the weekend, and all the clerks are hard at work, coming up with next week’s opinions, I figured that I would float this trial balloon. Indeed, there is more to appellate practice than just figuring how to get admitted, and digesting cases. There exists a somewhat healthy body of literature regarding appellate case, and I think that we need to,

2004-11-20T08:58:00.000-08:00

CA5 (11.19.04) "There's no such thing as being a little bit moot." So said the Fifth Circuit in Scruggs v. Lowman, filed yesterday. The case, an interesting study in mootness affecting appellate jurisdiction, answers this question: What's an appellate court to do with an appeal if the case became moot before the lower court rendered judgment? Must the appellate court dismiss the appeal for lack

2004-11-19T20:03:00.000-08:00

CA5 (11.19.04) Torts on the water Brad Parker provides this summary of yesterday's decision in Scarborough v. Clemco Industries: First, admiralty jurisdiction exists over claims against product manufacturers when at least one other alleged tortfeasor was engaging in a traditional maritime activity. That traditional maritime activity, however, must have had a proximate-cause relationship to the

2004-11-19T13:14:00.000-08:00

CA1 (11.19.04) Although it does not appear that the opinion has been released yet, Hi-Tech Pharmacal Co., Inc., is jumping (or coughing) for joy because the court "...vacated the preliminary injunction, which had enjoined Hi-Tech from marketing Tannate 12 D S, a generic version of MedPointe's Tussi-12 D S, a cough suspension." Read the press release here. Indeed, there were no published

2004-11-19T05:52:00.000-08:00

CA5 (11.19.04) Greetings from New Orleans. I hope to bring you the more interesting decisions from the Fifth Circuit and the Louisiana Supreme Court.

2004-11-18T13:31:00.000-08:00

CA1 (11.18.04) No opinions today. A couple of Errata. Note the Sixth circuit's tax opinions, which I will write something up about later.

2004-11-18T11:05:00.000-08:00

No more opinions expected from the California Supreme Court this week . . .

2004-11-18T11:00:00.000-08:00

CA10 (11.18.04) The Tenth Circuit ruled today against Dr. Exum, former head of the United States Olympic Committee’s drug control program in Exum v. United States, 03-1256 and 03-1280. Exum claimed he was passed over for the director's job of the anti-doping agency because he is black. The court ruled Exum didn't prove that he formally applied for the job or that he was discriminated against.

2004-11-18T09:24:00.000-08:00

CA8 (11.18.04) Three published opinions today. These summaries are from the Eighth Circuit’s site: United States v. Rushing (01-3077, 01-3428, 01-3082): District court did not err in excluding defendant's expert's proposed testimony regarding likelihood of sexual transmission of Hepatitis B as the proffered testimony was not reliable and admissible under Daubert; no Brady violation as the

2004-11-18T08:29:00.000-08:00

Judges Enjoy Absolute Immunity When Initiating Criminal Charges Against Perjurors Who Have Undergone Gender Reassignment Surgery Always sensitive to the manner in which the salacious generates interest, we are pleased to report an opinion concerning judicial immunity. The Sixth Circuit has reversed a decision that denied judicial immunity to a judge who initiated criminal charges against a

2004-11-18T06:39:00.000-08:00

CA2 (10.18.04) No opinions today. However, I neglected to point out earlier this week that, effective this past Tuesday, the CA2 amended its local rules. Most notable among the rule changes is that the court has made it significantly easier to join the Second Circuit bar by eliminating the oral argument requirement. Thanks to How Appealing for the pointer.

2004-11-18T05:48:00.000-08:00

CA5 (11.15.04) Taxes in Texas Don't Make the Value Go Down One tax case so far this week, but it wasn’t from the Tax Court. In Smith v. US, No. 04-20194 (5th Cir. Nov. 15, 2004), an appeal from a refund action at a District Court, which that the gross estate of a decedent should not be reduced by the amount of income tax liability that might attach to the decedent’s retirement accounts.

2004-11-17T17:15:00.000-08:00

CA7 (11.17.04) One published opinion today: Perruquet v. Briley, 02-2981: A convicted murderer procedurally defaulted his due process claim by not bringing it up in state court. Though the district court said the due process claim was just a warmed-over version of Perruquet’s state law claims—and thus not cognizable on habeas review—the Seventh Circuit said it was cognizable. Nevertheless, the

2004-11-17T15:00:00.000-08:00

CA1 (11.17.04) Medical Malpractice Air-Force Style In Primus v. US, 04-1085, the court affirmed the ruling of the District Court, which, after a bench trial, found that the Air Force Doctor under the FTCA, had not malpracticed upon the plaintiff by misdiagnosing her breast cancer. 28 U.S.C. § 1346(b); Mitchell v. United States, 141 F.3d 8, 13 (lst Cir. 1998) (situs of tort determines how much

2004-11-17T13:47:00.000-08:00

Questions of State Law may be Cognizable in Habeas if Defendant Asserts his Claim with Specificity Perruquet v. Briley, No. 03-2981 (7th Cir., Nov. 17, 2004) (Rovner, C.J., for Posner and Ripple, JJ.) However, we believe that Perruquet’s petition [which asserted errors in the trial court's admission and exclusion of evidence under state law] draws enough of a connection between his right to due

2004-11-17T13:45:00.000-08:00

The Eighth Circuit did not render any published opinions today.

2004-11-17T13:21:00.000-08:00

CA9 (11.17.04) No new opinions yesterday; one today US v. Schoneberg The court reversed defendant's drug conviction because the district court erred in preventing defense counsel from cross examining a witness. The sixth amendment right to be confronted by the witness is subject to judicial discretion to "preclude repetitive andunduly harassing interrogation,” but that limitation cannot

2004-11-17T11:25:00.000-08:00

CA2 (10.17.04) -- Where the Left Hand Doesn't Know What the Right One's Doing In Zappulla v. People, the court reversed a denial of a habeas petition, finding that the state court engaged in an "objectively unreasonable" harmless error review. Judge Raggi dissented. What is notable about this decision is that the court engages in an extensive discussion about the proper standard for reviewing a

2004-11-16T10:35:00.000-08:00

CA1 (11.16.04) In Esso Standard Oil Co. V Cotto, No. 04-2055 , a poor company called Esso feared that Puerto Rico's Environmental Quality Board (EQB) was caring a little too much about the environment. A gas station with tanks leased by Esso had leaked some gas, and after various orders to clean the place up issued a "show cause order" asking Esso to explain why it should not pay

2004-11-16T10:04:00.000-08:00

CA2 (10.15.04) One more opinion from yesterday. In United States v. Abuhamra, the court considered an appeal from a denial of bail pending sentencing. The appeal presents a single question: whether a district court may rely on evidence submitted by the government ex parte and in camera to deny bail. We conclude that such submissions should generally not be entertained because they compromise

2004-11-15T13:40:00.000-08:00

CA9 (11.15.04) Three new ninth circuit opinions today . . . Pincay v. Andrews The court upheld an appellate ruling that "Andrews’s attorney had improperly delegated the function of calendaring to a paralegal, and held that the attorney’s reliance on a paralegal was inexcusable as a matter of law." The en banc court found that such a per se ruling was consistent with Supreme Court doctrine of

2004-11-15T13:26:00.000-08:00

California (11.15.04) Morohoshi v. Pacific Home, S120903: Today the California Supreme Court held that the agency that arranged care at Pacific Home, a residential care facility, for a mentally disabled man is not vicariously liable for his death. Bobby Morohoshi’s parents received a jury award of about $600,000 because Pacific Home failed to check the diabetic man’s blood sugar one night,

2004-11-15T11:53:00.000-08:00

CA1 (11.15.04) Your Chealing Heart In Cheal v. US, No. 03-1333, the District Court held that a restitution order issued 127 days after sentencing based on a guilty plea was not plain error. The facts of the case are, depending on your perspective either quite sad, or a testament to just how dumb people can be. The court also found that the plea was knowing and voluntary, despite a rambling

2004-11-15T11:43:00.000-08:00

CA2 (11.15.04) One new opinion today. In Gutierrez v. McGinnis, the court held -- following the Supreme Court’s signal in Mitchell v. Esparza -- that when a state court explicitly conducts harmless error review of a constitutional error, a habeas court must evaluate whether the state unreasonably applied Chapman v. California. Three opinions were issued last week that I neglected to post about:

2004-11-15T08:35:00.000-08:00

Mid-Major Hoopsters Rejoice, For Now: NCAAs Market Insufficiently Defined for Antitrust Purposes The Sixth Circuit has reversed the award of a preliminary injunction that forbade the NCAA from enforcing its "two-in-four" rule, a prohibition on any NCAA mens basketball team from appearing in more than two exempt tournaments every four years. See Worldwide Basketball v. NCAA, No. 03-4024.

2004-11-15T06:57:00.000-08:00

A couple of Unpublished Opinions The First issued a few unpublished opinions, whcih showed up on November 12, 2004. One of them is sort of interesting. CA1 (10.28.04) In De Figuero v. Ashcroft, 03-2593, the EOIR “affirmed without opinion” an order of an IJ, it doesn’t violated due process because the petitioner still may appeal to the courts, and being deprived of one lawyer of administrative

2004-11-12T16:03:00.000-08:00

Big Events in NYC This Week The Columbia Federalist Society is sponsoring a couple big events next week that everyone is invited to. On Thursday the 18th at 4:45 Professor Richard Epstein from the University of Chicago will be debating Professor Eben Moglen from Columbia on digital property rights and Intel v. Hamidi 71 P.3d 296 (2003). The event will be at Columbia Law School--435 W. 116th St-

2004-11-12T13:20:00.000-08:00

Practice Tip: Get Firefox. The new version of Firefox puts all other browsers to shame, and probably is the best browser for lawyers and law clerks. (If systems gives you trouble about installing a new browser, whine and moan until people listen.) Firefox has a number of features which I use every day: Tabbed Browsing: I can keep multiple widows open all the time, and

2004-11-12T11:58:00.000-08:00

CA9 (11.12.04) Two new opinions from the 9th circuit today . . . In May Trucking Co. v. Oregon Dep't of Transp. the court held that the Tax Injunction Act deprived the court of subject matter jurisdiction over a claim that the International Fuel Tax Agreement precludes Oregon's collection of certain fuel taxes. The court cited Arkansas v. Farm Credit Servs. of Cent. Ark., 520 U.S. 821, 825 (

2004-11-12T09:29:00.000-08:00

CA5 (11.12.04) In an usual decision yesterday, United States v. Andrews, the Fifth Circuit held that the district judge “blatantly elect[ed] to ignore the plain language of the [sentencing] guidelines” when he sentenced Andrews to 120 months for fraud. The court remanded for resentencing by a different district judge, noting “[t]his is far from the first time we have had to reverse this judge”

2004-11-12T09:24:00.000-08:00

We promise you coverage of all published opinions from our respective circuits, so here it is: A Bruised Ego is Not Enough to Constitute an Adverse Employment Action The Sixth Circuit applied its standard for determining the existence of an adverse employment action to a plaintiff claiming a violation of Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. According to the Sixth,

2004-11-12T09:00:00.000-08:00

CA8 (11.12.04) The Eighth Circuit published five opinions today. Here are quick summaries from the court’s website. USA v. Lucy Mitchell, 03-2323: Evidence was sufficient to support conviction for aiding and abetting the making of a material false statement to the INS. Mohamed El-Sheikh v. John Ashcroft, 03-2944: Denial of asylum claim was not supported by substantial evidence because there

2004-11-11T17:52:00.000-08:00

D.C. Circuit (11.11.04) Three interesting opinions yesterday. In United Servs. Auto. Ass'n v. NLRB, No. 03-1371 and 04-1001, the court upheld the NLRB order to reinstate an employee fired after distributing fliers protesting lay-offs. Loretta Williams distributed the fliers after work. When USAA management questioned her about the fliers, Williams—afraid of retaliation—said she did not

2004-11-11T14:43:00.000-08:00

Should the Ninth Circuit be Split? Jennifer Spreng, a bankruptcy attorney and former Judge Kleinfeld (CA9) clerk and Carl Tobias, a law professor at the University of Richmond, are debating that issue here. Judges Kozinski and Thomas, of the Ninth Circuit, say "No" in this Wall Street Journal op-ed. (Via former Kozinski clerk, Eugene Volokh). Judge Kozinski says "No" again in this response to

2004-11-11T14:00:00.000-08:00

About Us We are a group of federal law clerks, lawyers, and law students. Some of us are members of the Federalist Society, others of the American Constitution Society. But our only agenda is to bring you summaries of recent appellate decisions. BH covers the Ninth Circuit. DoingItDaubertStyle is our tax expert. He covers the United States Tax Court, other tax-related cases of interest, and the

2004-11-11T13:06:00.000-08:00

CA1 (10.11.04) When District Courts Dismiss: What To Do When Someone Attaches A Bunch Of Stuff To A Complaint. Since I am now covering the First Circuit as well as appeals from the Tax Court, and today we honor veterans, I figure that I will start with yesterday. Awhile back, some folks on Greedy Clerks were talking about the practice of some courts of appeal issuing very terse orders

2004-11-11T11:17:00.000-08:00

Law Student Moot Court Competitors Take Note The authors of the Bible of the Supreme Court - Supreme Court Practice (8th ed.) - have graciously made available two of its chapters for free student download. The press release reads: Briefs on the Merits and Oral Argument, from Supreme Court Practice, Eighth Edition The authors of

2004-11-11T10:50:00.000-08:00

Police Power to Seize Personal Propery Broad When Acting Pursuant to a Drug-Related Search Warrant Dearmon v. Burgess, No. 01-3096 (8th Cir., Nov. 8, 2004) (McMillian, for Loken, CJ., and Hansen, J.). Police officers executed a warrant allowing them to search and seize "crack cocaine, marijuana, heroin, weapons, U.S. currency, drug transaction records, and any other instruments of the crime."

2004-11-11T10:47:00.000-08:00

A Court does not "Double Count" when it Sentences a Defendant Once for Firearm Possession and Again for Possessing the Firearm While Selling Drugs. United States v. Pierce, No. 04-1191 (8th Cir., Nov. 9, 2004) (per curiam - Murphy, Hansen, Riley, JJ.). Defendant plead guilty to meth and firearm-related offenses, including one count of violating 18 U.S.C. § 922, the felon-in-possession

2004-11-11T09:41:00.000-08:00

Slow week for the California Supreme Court . . .

2004-11-08T10:55:00.000-08:00

IIRIRA Limitation of Jurisdiction to Entertain Habeas Petitions Examined The Sixth Circuit has affirmed a dismissal for want of jurisdiction of a habeas petition challenging the Attorney General's refusal to grant a stay of deportation. See Moussa v. Jenifer, No. 03-2292. Criminal Defendant May Waive Right to Appeal SentenceThe Sixth Circuit makes clear that it agrees that a criminal defendant

2004-11-07T13:33:00.000-08:00

Civil Forfeiture and the Excessive Fines Clause United States v. Dodge Caravan, No. 03-1925 (8th Cir., Oct. 27, 2004). After a woman was convicted of various crimes relating to her personal, but illegal, use of prescription pain killers, the government brought a civil forfeiture proceeding. The district court agreed with the government and ordered the woman to surrender her Dodge Caravan. A 2-

2004-11-07T13:27:00.000-08:00

Appellate Advocacy Seminar in New York City Please see Rain Man 2 for the details.

2004-11-05T13:40:00.000-08:00

CA2 (10.5.04) No new opinions from the Second Circuit today, but Legal Times is reporting that the Supreme Court is today considering the cert. petition in Muntaqim v. Coombe, a case concerned with the validity of "felon disenfranchisement" laws under the Voting Rights Act. CA2 mavens will recall that last month, the court issued an unusual series of opinions to accompany a denial of a motion

2004-11-05T13:11:00.000-08:00

Prosecutor may argue during closing "the government submits...that man is guilty"; and sleeping jurors do not violate the Sixth Amendment right to a jury trial. See United States v. Sherrill, no. 03-6458 (6th Cir. Nov. 5, 2004).

2004-11-04T16:18:00.000-08:00

California (11.4.2004) In People v. Briceno, S117641, the high court held that “any felony offense” that was committed for the benefit of a criminal street gang is a “serious felony” within the meaning of California’s three-strikes law. Consequently, the defendant’s two prior convictions—one for unlawful possession of a firearm by a felon for the benefit of a criminal street gang and another for

2004-11-04T06:57:00.000-08:00

How to Perfect a Lein in Your Mobile Home in Michigan The Sixth Circuit has reissued as "Published" a decision reversing a district court's reversal of a bankruptcy court's decision concerning perfection of a secutiry interest under Michigan's Mobile Home Commission Act (MHCA). See In re: Thrush, No. 02-2332.

2004-11-03T13:15:00.000-08:00

CA2 (10.3.04) Today's lone opinion, Butts v. Barnhart, is an appeal from a district court's remand to the Social Security Commissioner for further proceedings. The sole issue on appeal was the proper scope of the remand -- whether it should be for an evidentiary hearing or a benefit calculation. (The court affirmed the remand for an evidentiary hearing, but imposed a 60 day limit for the

2004-11-03T13:01:00.000-08:00

Whether Apprendi Requires an Indictment Charge Separate Occasions of Prior Convictions for Armed Career Criminal Act According to the Sixth Circuit: the determinations by a district court that prior felony convictions exist and were committed on different occasions, are so intimately related that the "different occasions" requirement of § 924(e) sufficiently comes within the exception in

2004-11-02T16:13:00.000-08:00

California (11.2.2004) The Supreme Court of California released two opinions yesterday (sorry this post is a bit late): 1. In People v. Turner, S009038B, the court affirmed Richard Dean Turner’s sentence of death for two murders committed during a 1979 burglary. This is the second time the California Supreme Court has seen this case; in 1984, the court reversed Turner’s original judgment of

2004-11-02T13:47:00.000-08:00

12(b)(6) Requirement for Monell Action Complaint A former patient sued a hospital (a private corporation sued under a joint-action theory of section 1983 liability) alleging that it violated her Fourth Amendment rights. However, she did not state any facts in her Complaint showing the hospital had a policy or custom of rights violations. Her complaint was properly dismissed. Crumpley-Patterson v

2004-11-02T13:46:00.000-08:00

Effect of Collateral Attack on Predicate Felony in 18 U.S.C. § 922 Conviction The defendant was convicted in state court on drug charges. Later, he was convicted under 18 U.S.C. § 922, the felon-in-possession statute. After his conviction under § 922, he won his collateral attack against his state court conviction (re: the predicate offense for § 922). Must the federal court vacate Padilla's

2004-11-02T13:42:00.000-08:00

New Book on Appellate Advocacy. From noted appellate lawyer Raymond P. Ward comes this announcement: The Defense Research Institute (DRI) has just announced publication of The Appellate Advocacy Handbook, available in CD or in hard copy. It includes 24 chapters and covers every phase of an appeal, from preserving the record in the trial court through briefing and oral argument -- even Supreme

2004-11-02T13:38:00.000-08:00

CA2 (11.2.04) One new Second Circuit opinion today -- the first in quite a while. In today's opinion, the court affirmed the Commodity Futures Trading Commission's six-month suspension of a clerk who started a fist-fight outside of the Commodities Exchange.

2004-11-02T13:06:00.000-08:00

Let them Eat Exit Polls In an unending flurry of electino appeals, the Sixth Circuit has granted an emergency stay of an injunction forbidding news agencies from encroaching Ohio's 100 ft. free zone around polls. See Beacon Journal v. Blackwell, No. 04-4313.

2004-11-02T08:12:00.000-08:00

How You Gonna Challenge That? Thickening the plot, the folks at Ohio State cite to an AP dispatch for authority that the Third Circuit has rejected a challenge to a district court opinion interpretting a national consent decree, has apparently limited the basis upon which the Ohio challengers may challenge voters. Update: The Third Circuit has released its opinion on its web page.

2004-11-02T07:32:00.000-08:00

Challengers Permitted in Ohio In case you missed it, the Sixth Circuit has reversed two district court opinions that had barred challengers from the polls in Ohio. See Summit County v. Blackwell, No. 04-4311, and Spencer v. Blackwell, No. 04-4312. In related news, the Ohio Supreme Court has mandamused the Ohio county boards of elections to allow one challenger in each polling place, rather

2004-11-02T06:41:00.000-08:00

U.S. (11.2.01) Election Fun! Justice Steven’s in-chambers denial of stay of 6th Circuit’s decisions in Summit County v. Blackwell and Spencer v. Blackwell.

2004-11-01T09:34:00.000-08:00

Florida (11.1.2004) The United States Supreme Court today denied review of two cases from the Florida state courts. In Dobrin v. Fla. Dep't of Highway Safety & Motor Vehicles, 874 So. 2d 1171 (Fla. 2004)(SCOTUS docket no. 04-275), the Supreme Court of Florida held that since the arrest record in a drunk-driving case did not establish probable cause for pulling over the driver, the police

2004-11-01T08:05:00.000-08:00

Per Laidlaw, Sierra Club May Sue to Vindicate Aesthetic Interest of Certain Members The Sixth Circuit has reversed a district court decision that dismissed a case for lack of jurisdiction. The district court had concluded that a Sierra Club member alleged only a generalized grievance and not an actual, individualized injury because, according to the district court, the member was not a person "

2004-10-29T13:52:00.000-07:00

Right to Attorney Does Not Require Appointment of a Fourth Counsel on Eve of Trial So says the Sixth Circuit. See United States v. Green, No. 02-1571. Amount of Loss under Sentencing Guidelines for Financial Crimes is Reduced by the Amounts of Restitution In an interesting fact scenario for a fraud amount of loss case, a defendant got his sentence vacated. He had fraudulently received progress

2004-10-29T13:38:00.000-07:00

CA2 (10.29.04) The Second Circuit issued three opinions today affirming criminal convictions and sentences: In United States v. Borrego, the court held that a district court does not have to resolve disputed sentencing issues, the resolution of which would not actually affect the defendant's sentence. In this case, the defendant received a downward departure under USSG 5K1.1, but argued that

2004-10-29T08:31:00.000-07:00

Pre-Election Voter Challenges in Ohio Enjoined A Sixth Circuit panel composed of one Carter appointee and two Clinton appointees has denied an emergency motion to stay the temporary restarining order of a Clinton appointed district court judge forbidding the conduct of pre-election voter challenges in Ohio. See Miller v. Blackwell, No. 04-4299/300/301. Ken Blackwell, the Republican Secretary of

2004-10-28T13:24:00.000-07:00

In other less-than-earth-shaking-published opinions out of the Sixth Circuit today, we have: -- Anti-Cyber-Squatting Law Applied to "www.foradodge.com" Registrant. See DaimlerChrysler Corp v. Net Inc, No. 03-1950. -- The "Based Upon Public Allegations or Transaction" Bar to Qui Tam Actions, 31 U.S.C. § 3730(e)(4)(a), Applied. See Dingle v. Bioport Corp, No. 03-1841. -- A District Court’s Award

2004-10-28T11:26:00.000-07:00

Why Hire an Appellate Lawyer? Thanks to Raymond P. Wardfor bringing an article entitled, "Appeal in Error: Common Mistakes Made in Appeals" to our attention. Although students of critical thinking will be suspicious of an article, by an appellate lawyer, telling us why we should hire appellate lawyers in general, Mr. Stolley offers several compelling reasons for hiring an appellate lawyer.

2004-10-28T06:42:00.000-07:00

CA2 (10.27.04) No new opinions from the Second Circuit yesterday, so instead I present you with this snippet from a recent interview with George P. Bush, son of Florida Governor Jeb Bush, who is supposedly the first lawyer in the Bush clan. Council: Are there any lawyers in your family? Bush: There are none. My grandfather's cousin — I have one extended family member, and I think he is a federal

2004-10-28T05:29:00.000-07:00

Judicial Candidates Are People Too In a Wednesday afternoon opinion, the Sixth Circuit refused to stay an injunction that prohibits the Kentucky Judicial Conduct Commission from enforcing a ban on judicial candidate's speech. See Family Trust Fndtn v. Kentucky Judicial Conduct Comm'n., No. 04-6250 (6th Cir. Oct. 28, 2004). Footnote one points out something of a tactical blunder: The Commission

2004-10-27T19:39:00.000-07:00

California (10.27.04) All quiet on the western front . . . . No new opinions expected from the Supreme Court of California this week.