Category Archives: U.S. 11th Circuit

Eleventh Circuit Rejects Actual Innocence Claim in Petition for Writ of Habeas Corpus: Rozzelle v. Secretary, Florida Dept. of Corrections, No.10-13595

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Florida criminal defense lawyers who handle federal petitions for writ of habeas corpus won’t be surprised to learn that the United States Court of Appeals for the Eleventh Circuit has recently rejected a claim of actual innocence.  Although the case, Roger Allen Rozzelle v. Secretary, Florida Dept. of Corrections, No. 10-13595, is long and contains a highly factually intensive analysis and procedural history, it’s worth taking a few minutes to review the Court’s discussion of the different types of claims of actual innocence that can be made in the habeas context.  Such discussion is found at pages 26-49 of the slip opinion.

Enjoy the rest of your weekend, South Florida!

Congratulations to Judge Adalberto Jordan on his Confirmation to the 11th Circuit

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It’s been a busy morning, but before the day gets away from me, I wanted to pass along that congratulations are in order for the Southern District’s Judge Adalberto Jordan for his Senate confirmation to serve on the United States Court of Appeals for the Eleventh Circuit.  According to the Miami Herald, Judge Jordan is the first Cuban-born Judge to sit on the 11th Circuit.  If you have a stomach for the political wrangling behind his confirmation, you can read an article from the Miami Herald here.

A Kinder, Gentler Court for Federal Habeas Petitioners? Holland v. Florida, 130 S.Ct. 2549 (2010)

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Since my previous post on the United States Supreme Court case of Maples v. Thomas, No. 10-63, I’ve been wondering if we are seeing a kinder, gentler Court, at least in the area of federal petitions for writ of habeas corpus.  I think the answer is yes.

If you took a few moments to read Maples, you’re familiar with the Court’s exercise of leniency toward Maples, which is somewhat rare in habeas cases.  (As I mentioned in my previous post, habeas petitioners are often penalized for mistakes made by their postconviction attorney).  You’d also recall that in Maples, the Court relied heavily on Holland v. Florida, 130 S.Ct. 2549 (2010).

Holland is another case where the Supreme Court also showed leniency toward a federal habeas petitioner.  In Holland, the Court held, for the first time, that (1) the one year statute of limitations contained in section 2244(d) (governing the filing of section 2254 federal habeas petitions challenging state court convictions) can be tolled for equitable reasons; and, (2) an attorney’s professional misconduct may, at times, constitute “extraordinary circumstances” to warrant equitable tolling.  See Maples, No. 10-63, slip op. at *13 (recalling holding of Holland).  Significantly, in Holland, the Court explicitly stated that the analysis employed by the Eleventh Circuit to determine whether an attorney’s misconduct might warrant equitable tolling was “too rigid.”  See Holland, 130 S.Ct. at 2549.  While the Court didn’t reach the conclusion that the professional misconduct of Holland’s attorney rose to the level of “extraordinary circumstances” sufficient to warrant equitable tolling, the Court did remand the case back to the Eleventh Circuit for such a determination.  See Holland, 130 S.Ct. at 2565.  The Eleventh Circuit, in turn, remanded the matter back to the District Court for a possible evidentiary hearing on the issue.  See Holland v. Florida, 613 F.3d 1053 (11th Cir. 2010).  As of the date of this post, the status and disposition of Holland’s case in the District Court is unclear.  Westlaw does not show any further published opinions subsequent to the Eleventh Circuit remand at 613 F.3d 1053.  However, I suppose if you have time to kill, you could always check PACER for the status of Holland’s case.  His case originated locally, in the United States District Court for the Southern District of Florida, and appears to be assigned case number No. 06-20182-CV-PAS (Judge Seitz).

While I have not yet had the time to review the 2,358 opinions which cite to Holland, I think it’s fair to say that Holland may have begun a new era in postconviction litigation.  While it’s true that habeas petitioners have long argued that they should not be held accountable for the mistakes of their lawyers, habeas petitioners now have a strong case to point to in support of such argument.

I’ve Been Published . . . But I’m Still Waiting for Opinions on Constitutionality of Florida’s Drug Possession and Death Penalty Statutes

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Just a note to say that South Florida’s criminal defense lawyers are still in the “wait and see” mode for opinions to issue in two important cases.  First is State v. Adkins, SC 11-1878.  There, the Florida Supreme Court is considering the constitutionality of Florida’s drug possession statute, section 893.13.  According to the Florida Supreme Court docket, the last significant activity was oral argument and the filing of an amicus brief by the Florida Association of Criminal Defense Lawyers (FACDL, for short) last December.  If you’d like to read my comments on the oral argument, you can view them here.  Some of my other posts on the case can be seen here, here, and here.

Next is Evans v. Tucker, (originally filed as Evans v. McNeil), where the federal appeals court, the United States Court of Appeals for the Eleventh Circuit, may be addressing the constitutionality of Florida’s death penalty scheme.  (I say “may” because the parties’ briefs are not publicly available).  Although the public can access opinions released by the Court, the Eleventh Circuit court docket is not electronically available to the public, so information on that case is much more limited.  And, since a notice of appeal was filed in October of 2011, it may still be several months until an opinion issues.  If you care to monitor the Eleventh Circuit’s opinions as they are issued, you can click here.  (You can either look for the case style, Evans v. Tucker, or the lower court case number, 08-14402-Civ-JEM).  For some of my previous posts on the Evans case, click here and here.

A final note: if you are an attorney who is a member of FACDL, and you’re interested in these cases, you may want to check out an article I wrote in the Winter 2011 edition of the FACDL magazine, Florida Defender.  The article is printed at page 34 of Volume 23, No. 3.  You can also view it from my website by clicking here. (My article has been reprinted with the permission of the Florida Association of Criminal Defense Lawyers.)

After East Haven Police Officers Are Arrested by FBI for Racial Profiling and Abuse of Hispanics, the Mayor States He’ll Eat Tacos for Dinner

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News reports have surfaced this morning that officers in the East Haven, Connecticut, police department have been arrested by the FBI for racial profiling and abuse of hispanics in their community.  In one report, they were called “bullies with badges.”  According to the previously linked Huffington Post report, the officers targeted and terrorized hispanic arrestees and business owners, whether they were undocumented or not.  A New York Times report shows that the Mayor stands by his department, stating that all the officers are innocent until proven guilty.

Now, as a criminal defense lawyer, I can agree with such position.  But what I cannot agree with is the Mayor’s total disregard for the seriousness of the allegations in his town.  I was shocked this morning when I heard, on the CNN show “Starting Point” with Soledad O’Brien, a portion of a taped interview given by the East Haven Mayor, Joe Maturo.  When the reporter pointed out to the Mayor that in his police department of 50 officers, not one is  Hispanic, Maturo sarcastically responded, “and your point is? . . . “  The reporter, undaunted, also asked Mayor Maturo what he was going to be doing for the Hispanic community.  Maturo’s response?  “I might have tacos when I go home, I’m not quite sure yet.”  Wow.  Tacos.

For local news reports, and to listen to the Mayor’s comments, click here and here.  Maturo later apologized for the remark, blaming his insensitivity on the fact that the interview was his 12th or 13th of the day, and that the comments were made late in the day.

United States Supreme Court Issues Habeas Opinions in Maples v. Thomas, No. 10-63, and Gonzalez v. Thaler, No. 10-895

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You may recall that in a previous post dated October 4, 2011, I listed a few federal criminal and habeas cases that I thought South Florida criminal defense and criminal appeals lawyers might want to monitor this Term.  Well, so far, the Court has issued opinions in two of the cases.  They are:

MAPLES V. THOMAS, No. 10-63, (slip opinion dated January 18, 2012):   A win for the habeas petitioner!  Maples had been sentenced to death in Alabama and filed postconviction motions alleging ineffective assistance of counsel.  While the postconviction motion was pending, the attorneys who had been handling Maples’ case left their firm (Sullivan & Cromwell of New York) for new employment, but never notified Maples of their departure, never moved to withdraw, and never moved to substitute counsel.  Maples lost his postconviction motion.  A copy of the court order was sent to Maples’ attorneys at their former firm, but the firm returned the mailings, unopened, to the Clerk of Court.  The Clerk attempted no further mailing, and Maples’ time for filing further appeals expired.  Maples’ subsequent federal habeas petition was denied by the United States District Court on procedural default grounds, and the Eleventh Circuit affirmed.  However, the United States Supreme Court reversed the judgment of the Eleventh Circuit, finding that Maples had shown the requisite “cause” to excuse the procedural default.  In the opinion, the Court described Maples being “blameless,” and, stated, to my amazement:

The sole question this Court has taken up for review is whether, on the extraordinary facts of Maples’ case,  there is “cause” to excuse the default.  Maples maintains that there is, for the lawyers he believed to be vigilantly representing him had abandoned the case without leave of court, without informing Maples they could no longer represent him, and without securing any recorded substitution of counsel.  We agree.  Abandoned by counsel, Maples was left unrepresented at a critical time for his state postconviction petition, and he lacked a clue of any need to protect himself pro se.  In these circumstances, no just system would lay the default at Maples’ death-cell door.  Satisfied that the requisite cause has been shown, we reverse the Eleventh Circuit’s judgment.

Why was I amazed at that language?  Well, if you’re a criminal defense or criminal appeals lawyer who is familiar with habeas jurisprudence, you know that many times, the individual petitioners are penalized for their counsel’s procedural errors, notwithstanding the fact that the individual petitioners have little to no control over the acts of their attorney.  However, here, the Court recognized the practical reality of Maples’ situation, and showed him some leniency by allowing him the chance to litigate another postconviction motion.

GONZALEZ V. THALER, No. 10-895 (slip opinion dated January 10, 2012):  This is a very technical, and somewhat dry, opinion.  Although the issues specifically framed by the Court were ”(1) whether the Court of Appeals had jurisdiction to adjudicate Gonzalez’s appeal, notwithstanding the §2253(c)(3) defect; and, (2) whether Gonzalez’s habeas petition was time barred under §2244(d)(1) due to the date on which his judgment became final,” the Court addressed several sub-issues, including (a) the effect of defects in certificates of appealability on the jurisdiction of the Circuit Court; (b) the meaning of the term “jurisdictional;” (c)  when a State court conviction becomes final for purposes of habeas review; and, (d) timeliness of habeas petitions.  The most lively portion of the opinion, as you could have guessed, is Justice Scalia’s dissent.  I may not agree with a lot of what Scalia writes, but I have to admit that it takes some truly special talent to make dry jurisdictional arguments worth reading!

Notice of Appeal is Filed in Death Penalty Case of Evans v. McNeil, No. 08-14402-CIV-JEM

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It’s Friday, so I thought I’d post something quick: on October 14, 2011, a notice of appeal was finally filed in Florida’s death penalty case of Evans v. Tucker (previously Evans v. McNeil), No. 08-14402-CIV-JEM.  Those of you who read my blog know that this is the case where the Federal Court granted, in part, a petition for habeas corpus based on the finding that Florida’s death penalty scheme is unconstitutional.  Now that the notice of appeal has finally been filed, the case is heading to the United States Court of Appeals for the Eleventh Circuit.  I’ll be sure to keep you posted.

United States Court of Appeals for the Eleventh Circuit to Rehear Cases Relating to the Fair Sentencing Act en Banc

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In an important move, the United States Court of Appeals for the Eleventh Circuit issued two Orders on October 4, 2011, indicating that it will rehear two federal drug cases, United States v. Carmelina Vera Rojas, No. 10-14662, and United States v. Charles Levern Hudson, No. 10-14428, en banc.

The cases concern the application of the Fair Sentencing Act to federal drug offenses.  In the original Rojas opinion, found at 645 F.3d 1234 (11th Cir. 2011), the Eleventh Circuit held that the Fair Sentencing Act of 2010 (“FSA”), PL111-220, applies to defendants who committed crack cocaine offenses before August 3, 2010, the date of its enactment, but who are sentenced thereafter.  In the original Hudson opinion, the Court reaffirmed its holding that the FSA does not apply retroactively to offenses that were committed before the effective date of the Act.

United States Attorney General Eric Holder has reportedly flip-flopped on his position regarding application of the FSA.  At one time, he had instructed Federal prosecutors to argue that the revised FSA’s minimum mandatory sentences, which had been designed to alleviate sentencing disparity between offenses relating to crack and powder cocaine, was not applicable to defendants’ cases if they committed their offenses before the day the law went into effect, August 3, 2010, even if they had not yet been sentenced.   Then, in July of 2011, Holder issued a statement indicating that the FSA should be applied to all sentencings that occured on or after August 3, 2010, regardless of when the criminal episode took place.

Caught in the middle of this flip-flop are Carmelina Vera Rojas and Charles Levern Hudson.  As noted in the original opinion, 645 F.3d 1234, Rojas pleaded guilty to one count of conspiring to possess with the intent to distribute 50 grams or more of cocaine base (crack cocaine), and two counts of distributing 5 grams or more of cocaine base (crack cocaine).  Her case was reportedly set for sentencing on the day that the FSA was signed, but the District Court ordered legal briefing on whether the FSA would apply to her case.  Ultimately,  the District Court agreed with the prosecutors that the FSA did not apply, and sentenced her to 10 years in prison.  Had the District Court applied the FSA, Rojas could have been sentenced to 5 years.  As for Hudson, the Eleventh Circuit affirmed his sentence, which was based on the higher statutory mandatory minimums that were in effect in 2007, rather than the lower sentences under the FSA.  In short, neither Rojas nor Hudson were permitted to enjoy the benefits that the FSA was intended to give.

One final note: after the Rojas opinion originally appeared on the Eleventh Circuit website, it strangely disappeared, then reappeared again.  If you have time and want to read about the disappearance of reappearance of the opinion on the Eleventh Circuit site, click here.

Florida criminal defense attorneys who handle drug cases in Federal court will have to keep a close eye on these cases.

Do Police Need Probable Cause to Obtain Cell Site Information?

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Florida’s Fourth District Court of Appeal has published an opinion on an interesting and timely topic-whether police need probable cause to obtain prospective cell site information.  In Tracey v. State, No. 4D09-3565, the Court held that the police did not violate the Fourth Amendment when they used “real time” or prospective cell site information to track a suspect on public roads.

By way of background, footnotes 1 and 2 of the opinion discuss two tools which are related to cell phone use, and which allow law enforcement officers to track suspects: pen registers and trap and trace devices.  Under Florida law, a pen register is defined as “a device or process that records or decodes dialing, routing, addressing, or signaling information transmitted by an instrument or facility from which a wire or electronic communication is transmitted, but such information does not include the contents of any communication.” See Fla. Stat. § 934.02(20) (2009).  A “trap and trace device” is defined as “a device or process that captures the incoming electronic or other impulses that identify the originating number or other dialing, routing, addressing, or signaling information reasonably likely to identify the source of a wire or electronic communication, but such information does not include the contents of any communication.” See Fla. Stat. § 934.02(21) (2009).

Key to the Fourth District’s analysis was the fact that the police were tracking Tracey on public roads.  The Fourth relied on United States v. Knotts, 460 U.S. 276 (1983) and United States v. Karo, 468 U.S. 705, 707 (1984), where the United States Supreme Court upheld a law enforcement officer’s installation of a beeper to track a suspect’s car on public roads because the police officer did not obtain information which could not have been obtained
through visual surveillance.

Federal courts are presented with this issue much more often than the State courts.  I know from my time as a Law Clerk in the United States District Court for the Southern District of Florida that federal prosecutors routinely apply to the Court for pen registers and trap and trace devices as part of their criminal investigations.  While Judges in the Southern District require the prosecutors to show probable cause before they will allow a pen register or trap and trace to issue, it is important to note that the Federal courts do not approach the issue uniformly.

Some Federal courts have held that prospective or “real time” cell site information can only be obtained upon a showing of probable cause, contrary to the Fourth District’s holding in Tracey.  See In re APPLICATION FOR PEN REGISTER AND TRAP/TRACE DEVICE WITH CELL SITE LOCATION AUTHORITY, 396 F. Supp. 2d 747 (S.D. Tex. 2005); In re APPLICATION OF THE UNITED STATES FOR AN ORDER (1) AUTHORIZING THE USE OF A PEN REGISTER AND A TRAP AND TRACE DEVICE, 396 F. Supp. 2d 294 (E.D.N.Y. 2005).  Federal courts may also differ on the issue of whether a showing of probable cause is required to obtain historical cell site data.  See In re Application of the UNITED STATES of America FOR HISTORICAL CELL SITE DATA, 747 F. Supp. 2d 827 (S.D. Tex. 2010); In re APPLICATION OF the UNITED STATES of America FOR AN ORDER DIRECTING A PROVIDER OF ELECTRONIC COMMUNICATION SERVICE TO DISCLOSE RECORDS TO the GOVERNMENT, 620 F. 3d 304 (3rd Cir. 2010).

A note of caution: this listing of cases is only the tip of the iceberg.  Florida criminal defense attorneys will have to undertake a thorough review of the facts of their cases and the relevant caselaw to determine how to proceed if they are presented with an issue regarding their client’s cell phone data.  While the Fourth District’s opinion in Tracey gives law enforcement the upper hand in some respects, Florida criminal defense attorneys must keep in mind that Florida courts are bound to follow Fourth Amendment analysis as enunciated by the United States Supreme Court.  See Rolling v. State, 695 So. 2d 278, 297 n. 10 (Fla. 1997); Fla. Const. art. I, sec. 12.  Given the different approaches being taken by the Federal courts, perhaps the United States Supreme Court will have the opportunity to address the issue sooner rather than later.  And if the Court does find that probable cause is required to obtain these types of cell phone information, that would mean a victory for the defense!

Eleventh Circuit Rules that Sentence of Life Without Parole for People Who Commit Crime of Murder While a Juvenile Does not Violate Constitution

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In the case of Kenneth Loggins v. Thomas, No. 09-13267, 2011 WL 3903402 (11th Cir. Sept. 7, 2011), the Eleventh Circuit held that sentencing a person to life without parole for committing a homicide while under the age of 18 (a juvenile) does not violate the United States Constitution. While the 61 page opinion is lengthy, the Court dealt with some important issues.

As for the facts, a word of warning: the murder, which Loggins and several friends committed when he was 17, is quite brutal, and the Eleventh does not hold back in its description of the crime.  Loggins’ original sentence of death was reversed in light of the United States Supreme Court opinion of Roper v. Simmons, 543 U.S. 551 (2005) (holding that it is unconstitutional to execute criminals who were under the age of 18 when they committed their crimes).  After Loggins was resentenced to life without parole, he appealed that sentence, arguing that the sentence was unconstitutional.  Loggins lost all his appeals in the Alabama state courts, and eventually filed a petition for writ of habeas corpus under section 2254 in Federal Court, raising the same issue.  The District Court denied Loggins’ 2254 petition, and he appealed to the Eleventh Circuit.

The Court’s analysis of the core issue, the constitutionality of a sentence of life without parole for the crime of homicide committed while a juvenile, begins on page 35.  Although Loggins argued that there was a national and international consensus against such a sentence, the Court quickly rejected such arguments based on some interesting criminal sentencing statistics.  As a Florida criminal appeals attorney, I was saddened to read, on page 45, that Florida stands out as the State that has the highest number of people sentenced to life without parole for non-homicide crimes committed while the people were juveniles.  Out of the 123 inmates imprisoned nationwide, 77 are imprisoned in Florida.

In addition to the main issue of the constitutionality of the sentence of life without parole, the Loggins opinion is also worth reading because it contains a good discussion of other issues that arise in 2254 habeas proceedings, such as the deference owed to State court decisions, whether claims were adjudicated on the merits, what constitutes clearly established federal law, and retroactivity.