Florida Criminal Appeals Attorney Law

Appellate Law, Criminal Defense and Appeals and Post Conviction Relief in Florida Courts, Federal District Courts and the 11th Circuit

Tag: federal court

How Will the Florida Bar’s Ethics Opinion Prohibiting Waivers of Claims of Prosecutorial Misconduct and Ineffective Assistance of Counsel Be Enforced?

Florida’s criminal defense attorneys are probably aware by now that the Florida Bar has adopted the highly debated ethical opinion which prohibits waivers of claims of prosecutorial misconduct and ineffective assistance of counsel in plea bargains.  According to the Florida Bar News report, although representatives from the United States Attorneys offices for the Southern, Middle, and Northern Districts of Florida argued against the adoption of the ethical opinion, the Board of Governors adopted the proposed ethical opinion with only a few dissenting votes.

The ethical opinion is a step in the right direction, but how will the opinion will be enforced?  For those of you who practice in State court, if your client is offered a plea that contains a waiver of claims of ineffective assistance of counsel or prosecutorial misconduct, perhaps you could bring the new ethical opinion to the prosecutor’s attention.  If that fails, you could bring the ethical opinion to the attention of the court.

However, if you practice in Federal court, the ethical opinion may not necessarily change anything.  Federal court criminal defense practitioners may know that the Department of Justice does not require that the Assistant United States Attorneys be admitted to their state bar.  In other words, AUSAs in the Southern, Middle, and Northern Districts may not necessarily be members of the Florida Bar.   If the AUSAs are not members of the Florida Bar, they would not be bound by any of the Florida Bar’s ethical rules.  Therefore, unless the U.S.  Attorneys in the districts of Florida voluntarily adopt a policy prohibiting plea offers containing waivers of prosecutorial misconduct and ineffective assistance of counsel, Federal court criminal defense practitioners may see little to no change with regard to plea offers.  I would hope that the US Attorneys take it upon themselves to change their policies, but, given their opposition to the ethical opinion, I wouldn’t expect it.

Changes Coming To Palm Beach County State Attorney’s Office and Kozinski Gangnam Style?

Sorry for the slow blogging.  Between crazy deadlines and holiday events, it’s been hard to find time.

I’ve got 3 things for you.  First, the Palm Beach Post reports that changes are in store for the Palm Beach County State Attorney’s Office.  For starters, Paul Zacks is out as the Chief Assistant, to be replaced by Alan Johnson.  I myself am curious to see whether any of the Assistants who left the office under McAuliffe will return to their old jobs now that Aronberg has been elected.  And, like many criminal defense and criminal appeals lawyers out there, I’m also curious to see if Aronberg will allow the prosecutors any more authority to plead out their cases.  Only time will tell.

Second, where will Peter Antonacci, the interim State Attorney, go now that Aronberg has been elected, you ask?  Why, back to Tallahassee to serve as General Counsel to Governor Scott of course!

Third, for those of you who practice in Federal court, I bet you’d never think you’d see Judge Kozinski this  . . . enjoy!

Practical Tips for Federal Court-Part II

Just a few more tips for those of you who might find yourselves in Federal court, especially in the Southern District of Florida . . .

1.  You probably know that everything in Federal court gets filed electronically on CM/ECF.  To avoid getting too many nasty-grams from the Clerk’s office for improper filing, it’s probably a good idea to visit the Clerk’s website and download a copy of the Administrative Procedures governing CM/ECF.

2.  If you’re a civil attorney whose case gets assigned to a Judge that runs a “rocket docket,” you should consider consenting to the jurisdiction of a United States Magistrate Judge.  Most often, you’ll have the ability to special set your hearings and trials, and you might get a bit more time to work the case up effectively.  To consent to the jurisdiction of one of the Magistrate Judges (notice that I am NOT referring to them as “magistrates”–that term is for state court only), you can obtain the proper consent form from the Local Rules.  Both sides need to agree, as do the clients.

3.  If you’re a criminal defense attorney who handles a lot of sentencing hearings, you might want to reconsider sending in all those letters extolling the virtues of your client.  Several Judges who were at the Federal Bench Bar conference in West Palm Beach on April 27, 2012, actually said that they are not really persuaded by the letters.  Rather, the Judges would find it more helpful for criminal defense attorneys to focus the court’s attention on the sentencing factors listed in 18 U.S.C. section 3553(a).  As required by United States v. Booker, 543 U.S. 220 (2005), the Judges said they really try to focus on determining a sentence that is “sufficient and not greater than necessary.”  However, if you do find it necessary to submit letters, some of the Judges said that any person submitting a letter should not also be called as a witness.  As for the length of the hearings, the Judges also said that most sentencing hearings should be completed in about 30 minutes.  Finally, several of the Judges said that since Booker, they might be more apt to go along with a sentencing variance, as opposed to an outright departure, since departures are more vulnerable to reversal on appeal.

4.  Finally, whenever you are in the Federal courthouse, as in any courthouse, be nice to everyone.  Negative comments about lawyers spread quickly.  Deputy Marshals will gossip just as much as the CRDs, Clerks’ staff, and chambers staff.  Be nice to everyone there, and they will be nice to you (well, for the most part . . .)

Practical Tips for Federal Court

If you’ve ever been in Federal court in South Florida, you already know that there is a huge difference between State and Federal Court.  In keeping with the Federal bench Bar Conference that happened in West Palm Beach on Friday, April 27, 2012, I thought some practical tips might come in handy.

1.  If your client gets slapped with Federal criminal charges, or your civil case gets removed to Federal court, DON’T PANIC.

2.  For civil cases, the first thing you should do is familiarize yourself with the Local Rules for the Southern District.  They are available on the Southern District website.

3.  For criminal cases, you’ll need to call the Assistant United States Attorney (AUSA) assigned to the case to determine if he or she will agree to release your client on bond or whether the Government is seeking pre-trial detention.  Unfortunately for criminal defense lawyers and their clients, most criminal defendants, at least those that have their cases assigned to the West Palm Beach courthouse, have historically been detained without bond.  But, there is potentially some good news: with two new Magistrate Judges on the bench this year, maybe things will change.  After all, Magistrate Judge Brannon (already on the bench) is a former Federal P.D., and the next Magistrate Judge to be sworn in, Bill Matthewman, is also a former criminal defense lawyer.

4.  As your case progresses, some other things to keep in mind are:

(a) Try to keep phone calls to chambers to a minimum.  Scheduling of matters is, for the most part, handled through the courtroom deputy (CRD), not chambers. If you have to call chambers, be polite.  After all, the person answering the phone might be a law clerk who will be writing the order on your case!

(b) Don’t call chambers with questions like “what does the Judge want me to do,” or “how would the Judge like me to handle . . .”  As the lawyer on the case, it is your responsibility to figure things out for yourself.  Although many Judicial Assistants in State court will tell you what the Judge would like you to do, many chambers in the Southern District are required by the Judge to answer those kind of questions by simply referring you to the Local Rules.  Don’t take it personally.  Most Judges just want to avoid the possibility of ex parte communications.  Some Judges in the Southern District won’t even entertain calls to chambers or the law clerks.

(c) Don’t presume you’ll get a hearing on anything.  Most matters in Federal court are handled on the written pleadings only.  If you need a hearing, you must file a separate motion requesting the hearing.

(d) Since most matters are handled on the pleadings, put your best effort into your writing.  Say everything you need to say up front.  Acknowledge weaknesses in your case candidly, but then explain why those weaknesses should not affect the result in your case.  Be precise, be succinct, clearly cite all authorities and record references  in support of your position, and conclude.

(e) If a Magistrate Judge handles your motion/pleading, you will have the chance to file an objection within the requisite time frame (14 days).  The objection will then be handled by the District Court Judge, like an appeal.  If your pleading was disposed of by the District Court, you would appeal any rulings to the Eleventh Circuit, according to the Rules of Appellate Procedure.  For criminal cases, bond/detention orders are appealed to the District Court.

More tips to follow next time!

Petitions for Writ of Habeas Corpus: Exhaustion and Procedural Bar

As I mentioned in my last post on petitions for writ of habeas corpus, petitions have to be timely filed.  In addition to timeliness, petitioners also have to consider the issues of exhaustion and procedural bar.

Exhaustion is a concept based on comity and federalism.  Although the Federal courts are available to consider Federal constitutional questions, the Federal courts do not sit in a strict appellate capacity over the State courts.  Generally, for the exhaustion element to be met, the petitioner must have presented any Federal constitutional claims to the State court, thereby allowing the State court the opportunity to review the claims first.  If the claims have not been presented to the State court, a Federal court may find that the claims have not been exhausted.  In such instance, the Federal court may dismiss the Federal 2254 petition without prejudice, so as to allow the petitioner to present, or exhaust, his claims in State court.  In addition, if a 2254 petition contains both exhausted and unexhausted claims, (otherwise known as a “mixed petition”), the 2254 petition may likewise be dismissed without prejudice.  A good discussion of these principles can be found in Thompson v. Wainwright, 714 F.2d 1495, 1503-1504 (11th Cir. 1983); Snowden v. Singletary, 135 F.3d 732, 736 (11th Cir. 1998); and, Bailey v. Nagle, 172 F.3d 1299 (11th Cir. 1999).

With regard to procedural bar, where a 2254 petitioner has failed to raise his or her Federal claims properly in State court, the Federal court may find that the petitioner is procedurally barred from raising the claims in Federal court, unless a petitioner can make a showing of cause for and actual prejudice from the default, or by establishing a fundamental miscarriage of justice.  See Bailey, 172 F.3d at 1306.  As noted in Bailey, 172 F.3d at 1302-1303, claims are generally procedurally defaulted in two ways: (1) where the State court correctly applies a procedural default principle of state law and determines that the Federal claims are barred; or, (2) where the petitioner never raised the claim in State court, and it is obvious that the unexhausted claim would be procedurally barred based on a State law procedural default.  Where unexhausted claims would be procedurally barred in State court, the Federal court may determine that such claims do not provide a basis for Federal habeas relief.  See Snowden, 135 F.3d at 736.

Nevertheless, where it would be futile for a petitioner to return to State court because procedural defaults bar any right to relief, the Federal court may determine that such futility is an exception to the exhaustion requirement, and decline to dismiss the petition.  See Bailey, 172 F.3d at 1306-1307 (Carnes, J. dissenting).

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