Additionally two court of appeals issued en banc opinions this past week. The first, the Ninth Circuit's Carriger v Stewart addresses successive petitions. The successive petition was filed prior to the AEDPA so the applicable standard is that of Schlup v. Delo preponderance standard and not the more rigorous "clear and convincing" standard of the AEDPA. The Ninth Circuit having found that Carriger was more likely than not innocent of the crime, grants a writ on the grounds that the conviction was obtained through the use of perjury and prosecutorial misconduct.

In the other en banc opinion the Fourth Circuit examines procedural default in Mackall v Angelone. Virginia, like most states does not allow a petitioner to raise non-record claims of ineffective assistance of counsel on direct appeal. The Supreme Court has recognized that a procedural default on a direct appellate issue may be forgiven with a proper showing as assistance of counsel on direct appeal is a constitutional right. Collateral motions for relief, like those in which ineffective assistance of counsel must be brought in in Virginia, are not constitutionally protected, however, from counsel's ineffectiveness Fourth Circuit en banc holds that even if state court rules allow ineffective assistance of counsel to be brought only in state post-conviction no constitutional right to counsel exists nor does it forgive procedural default.

Illinois v. Reid Illinois examines, in a case of first impression, the aggravator of home invasion in overturning appellants sentence. The decedent had a restraining order (RO) against Reid, however they remained on good terms. Reid convinced the decedent to let him into the house to retrieve some property, shortly thereafter a fight broke out. The court holds that a batterer who would otherwise have legal right to be on the property except for the RO, may not have his sentence aggravated for home invasion merely due to the existence of an RO.

Habeas - Procedural Bars & Default
Mackall v. Angelone, see above

Habeas - Exhaustion
Demarest v. Price Petitioner failed to fully raise claims in state court that were developed at a federal evidentiary hearing. Tenth Circuit remands and holds that the district court must examine whether the state courts would procedurally default petitioner on his newly developped/presented claim with a regularly applied rule. If not, as the state has not waived exhaustion, petitioner must return to state court to exhaust his remedies.

Habeas - Successive Petitions
Carriger v Stewart see above

In re Sonshine Sixth Circuit examines AEDPA's successor rules for movant's under 28 U.S.C. § 2255 in a good examination of the new rule exception for successive petitions. The Court seemingly suggests, albeit in dicta, that a Circuit Court interpretation of a Supreme Court holding is good enough to trigger the threshold requirement for filing a successive petition. The court still holds against the movant because he would lose under Sixth Circuit precedent.

AEDPA Interpretations
Hill v. Butterworth Eleventh Circuit examines the provisions of the AEDPA's "opt-in" provisions under 28 U.S.C. § 2261, and remands for further proceedings to examine how the troubles with Florida's CCR program may effect the state's argument that it complies with § 2261. The Supreme Court has already granted certiorari on the affirmative defense raised by the state (the challenged is barred by the Eleventh Amendment) in Ashmus v. Calderon. Double Jeopardy

Kokoraleis v. Gilmore see above

Ineffective Assistance of counsel
Mackall v Angelone Fourth Circuit en banc holds that even if state court rules allow ineffective assistance of counsel to be brought only in state post-conviction no constitutional right to counsel exists nor does it forgive procedural default.

Civil & Prisoner Rights
Hains v Washington Fourth Circuit finds that the appellant has filed both a frivolous district court filing and a subsequently frivolous appeal. The courts discusses how to count frivolous suits for PLRA purposes, and holds that an appeal may count as one of the three strikes if frivolous; therefore a filing and appeal could count as two strikes even they there are part of same case.

Rish v Johnson, Prisoners in a North Carolina prison were assigned to medically hazardous duties that in the civilian world would require them to wear protective masks to protect their respiratory systems. Prison officials refused to issue said equipment and the prisoners sued under the Eighth Amendment. Fourth Circuit looks at qualified immunity and hazardous work detail assignments for prisoners and concludes that the prisoners in this case are not protected as the prison officials are immune from suit.

There are a lot of law firms out there on the web, the vast majority of which are simply nothing more than bad advertising that never update their web site save to announce the fifth remarriage of a senior partner of some similar event. An exception to this general is the MERRY CHRISTMAS -- FROM ROMINGER LEGAL SERVICES site, its timely, funny and offers great legal research .

"Now they show you how detergents take out bloodstains, a pretty violent image there. I think if you've got a T-shirt with a bloodstain all over it, maybe laundry isn't your biggest problem. Maybe you should get rid of the body before you do the wash."~~Jerry Seinfeld
 

As always, your suggestions, information and articles are welcomed. As the Winter Holidays have approached the Supreme Court and appellate courts, as is usual this time of year, have put out few cases of note this week. The next update will come on the first Monday of the New Year. As always if yo find something I have missed, or you think should be included, please forward it and I will gladly put it out to the list and web page.
 

---- Karl R. Keys, Esq.
 

Updating Schedule I try to update the page three times a week, normally once on the weekends, Tuesdays and Thursday.
 

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