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: Habeas

United States v. Hall, No. 11-14698: Eleventh Circuit Reverses 4-Level Enhancment For Fraudulent Use of Identifying Information to Obtain Credit Cards

I had to do a double-take when I read the opening paragraph of United States v. Erica Hall, No. 11-14698:

Hall pled guilty to conspiracy to commit bank fraud, in violation of 18 U.S.C. § 1349 (Count 1); conspiracy to commit identity theft and access device fraud, in violation of 18 U.S.C. § 371 (Count 2); wrongfully obtaining and transferring individually identifiable health information for personal gain, in violation of 42 U.S.C. § 1320d-6(a)(2) (Count 3).  When imposing Hall’s sentence, the district court applied a four-level enhancement under U.S.S.G. § 2B1.1(b)(2)(B) because it found that the offense involved more than 50 but less than 250 victims.  In objecting to the enhancement, Hall argued that the mere transfer or sale of identifying information unlawfully or without authority does not equate to the actual use of identifying information for a fraudulent purpose.  Therefore, because the conspirators actually used only identifying information for 12 out of 141 individuals to obtain fraudulent credit cards, Hall argued that the two-level enhancement under U.S.S.G. § 2B1.1(b)(2)(A) was more appropriate because it applies to more than 10, but less than 50, victims.  The district court rejected Hall’s argument, but we do not.  Accordingly, we vacate Hall’s sentence and remand for resentencing.

Wow.  Those are words not often found in an Eleventh Circuit opinion.  No doubt that Hall’s appellate counsel and other criminal defense lawyers practicing in the Southern District of Florida will be pleased.

In another case, Norman Mearle Grim, Jr.  v. Fla. Sec’y, Dept. of Corrs., No. 11-11890, the Eleventh Circuit reverted to its usual self and denied a death-row inmate’s habeas petition.  In the opinion, the Court again rejected a constitutional claim based on Ring v. Arizona, 536 U.S. 584 (2002).  In support, the Court pointed to a recently issued decision, Evans v. Sec’y, Fla. Dep’t of Corrs., 699 F.3d 1249, 1264 (11th Cir. 2012), where the Court held that Florida’s death penalty statute is constitutional.  For my previous post on the Evans case, click here.

A Hollow Victory in Lozman v. City of Riviera Beach, Timeliness of Habeas Claims, and Disqualification of Judges Who Are Facebook Friends with Prosecutors

It’s already mid-week, but I wanted to pass along a few things that might interest you.  Remember the guy Fane Lozman who was fighting the City of Riveira Beach over marina fees owed for his houseboat?  Well, the United States Supreme Court issued an opinion in his case, Lozman v. City of Riviera Beach, No. 11-626.  The Supreme Court reversed the Eleventh Circuit, making Lozman the victor.  Too bad the City already destroyed his houseboat.

The Eleventh Circuit recently issued an en banc opinion in Michael Duane Zack v. Kenneth Tucker, No. 09-12717, wherein the Court held that the AEPDA statute of limitations applies claim-by-claim, rather than to the petition as a whole.  If you handle a lot of habeas cases, the opinion is worth a quick read.  My least favorite part of the opinion?  Judge Carnes’ concurrence, where he ridicules the position taken at oral argument by one of the attorneys as absurd.  Ouch.

Finally, attorneys throughout the State of Florida, civil and criminal alike, might want to monitor the case of Pierre Domville v. State, 4D12-556, where the Fourth District Court of Appeal has certified a question of great public importance to the Florida Supreme Court:  “Where the presiding judge in a criminal case has accepted the prosecutor assigned to the case as a Facebook “friend,” would a reasonably prudent person fear that he could not get a fair and impartial trial, so that the defendant’s motion for disqualification should be granted?”  An article in the Palm Beach Post can be read here.

Eleventh Circuit Issues En Banc Opinion in Wydell Evans v. Sec’y, Dept. of Corrections, No. 10-14920

The United States Court of Appeals for the Eleventh Circuit has recently released an en banc decision in the habeas appeal of Wydell Evans v. Sec’y, Dept. of Corrections, No. 10-14920.  As far as Eleventh Circuit opinions go, it’s rather long at 72 pages, but considering that it’s an en banc opinion, the 72 pages seems unexpectedly short.  As one familiar with the Eleventh Circuit might expect, the majority opinion affirmed the denial of Evans’ petition for habeas corpus relief.  In so doing, the Court focused its analysis on the prejudice prong of Strickland v. Washington, 466 U.S. 668 (1984), and held that even though Evans’ trial counsel performed only a minimal investigation into mitigating evidence for the penalty phase of the trial, and presented no mitigating evidence to the jury, Evans was not prejudiced because the evidence of mitigation which counsel could have presented was more harmful than helpful.  See Evans v. Sec’y, Dept. of Corrections, Slip op., pgs. 3-37.

Whether you handle criminal defense, habeas petitions, death penalty work, or federal appeals, this opinion might be worth your time to review.  Not only does Judge Jordan’s concurrence contain a good discussion of the standards of review applicable to habeas proceedings, but Judges Wilson and Martin author great dissents.  Judge Wilson’s dissent focuses on the Court’s decision to render the en banc decision at all.  If you handle federal appeals before the Eleventh Circuit, Judge Wilson’s dissent might be valuable the next time you have to draft an opposition to a motion for en banc consideration.  See Evans, Slip op. pgs. 46-49.  Judge Martin’s dissent contains a thought-provoking discussion of the role of defense counsel in death penalty cases.  In short, Judge Martin agrees with the majority that the mitigating evidence that counsel could have presented to the jury would have portrayed Evans in a bad light.  However, Judge Martin notes that the jury was already familiar with Evans’ character flaws, anyway.  And, most importantly, Judge Martin observes: isn’t it the job of death penalty counsel to investigate and present whatever mitigating evidence can be found?  See Evans, Slip op., pgs. 50-72.

Rozier v. United States, No. 11-13557: Eleventh Circuit Denies Habeas Relief Notwithstanding Government Concession

Florida’s criminal defense and criminal appeals attorneys who are familiar with the Eleventh Circuit’s reluctance to grant habeas relief will not be surprised to learn that, unfortunately, even if the Government concedes that relief should be granted, their clients may STILL not win on appeal.  The opinion of Rozier v. United States, No. 11-13557, is just the latest example.  At a mere 23 pages, which is quite short by Eleventh Circuit standards, the opinion is a great read because you can practically see the majority and the dissent pointing their fingers at eachother.   Unfortunately for Mr. Rozier, the end result of the opinion is that he has to serve time far beyond what his sentence would have been without the erroneous career offender enhancement.  See Rozier, slip op., pg. 14 (Hill, J., dissenting).

Judge Hill’s dissent is an absolute pleasure to read.  Rather than sum up the 9 page dissent for you, I thought I should just quote a particularly eloquent portion:

I reluctantly conclude that our court is determined to deny relief to every confined habeas petitioner whose sentence has been unlawfully enhanced under either the career offender guideline or the armed career criminal statute.  We have repeatedly held that procedural rules deprive us of the ability to correct an enhancement that we all agree is error because it was not authorized by law when imposed.  To the petitioner, who is serving five, ten or even fifteen years more than he would be in the absence of the error, we say, “Sorry.  We know your enhancement was error, but there is nothing we can do.  Our hands are tied by procedural rules.  We cannot fix this.”

We do this in the name of “finality.”  We say we are protecting the integrity of the Great Writ; we cannot go about correcting old mistakes or no conviction or sentence will ever be final.

Of course, finality is desirable.  There was a time when there appeared to be no finality in our habeas procedures.  The rules we adopted to introduce some finality into the habeas process were long overdue.

But finality must not be our highest goal.  The Great Writ is enshrined in our Constitution because we believe that no one may be deprived of life, liberty, or property by the government in violation of law.  If a petitioner can show that he is illegally incarcerated, he is entitled to release.  Fairness requires it.  Justice is the ultimate goal in the grant of the Writ.

But we have increasingly come to define what is “just” by what our procedural rules permit.  Recently, the State of Alabama, a panel of this court, and two justices of the Supreme Court agreed that an Alabama prisoner could be put to death as the result of his lawyers – who abandoned his case – having missed a filing deadline. Our court held that we would not – could not – consider the merits of his claim due to this procedural default.  I agree with the member of this panel who dissented in the Alabama case, writing that in certain cases procedure must “yield to the imperative of correcting a fundamentally unjust [sentence].”  Seven members of the Supreme Court agreed with that view, reversing our court.  See Maples v. Thomas, 132 S. Ct. 912 (2012).

In Maples, there was no certainty that there had been error in the conviction or sentence.  In Rozier’s case, however, there is certainty.  We know that the enhancement of his sentence was error.

I must confess I am bewildered that both the United States, through its Department of Justice, and this court appear to rejoice when access to constitutional protection for the correction of admitted and highly prejudicial error is found to be blocked by unmet procedural “safeguards.”  On the contrary, I should have thought that the correction of such error would be celebrated by all sworn to uphold the Constitution.  As is inscribed in the office rotunda of the Attorney General of the United States, “The United States wins its point whenever justice is done its citizens in the courts.” Some in the Department of Justice seem to believe that the inscription reads, “Justice is done when the United States wins.”

Clearly justice is not the intended beneficiary of these procedural safeguards.  On the contrary, the safeguards are designed to protect finality.  If these new rules require that finality trump justice, then perhaps, as one member of this panel has opined elsewhere, they are unconstitutional.  In any event, I cannot join in this elevation of form over substance; of finality over fairness.

Due process is the defining virtue of our system of criminal justice.  But we should ask ourselves why.  Is it because it achieves finality?  Or is it because we believe that, more often than not, we will reach a correct result where certain process is due the criminal defendant.  The goal is a correct result – not simply the provision of process.  To be sure, we do not guarantee a correct result.  But where all know the result is error, to adhere to the process as though it were the end goal is unfair in the purest sense of the word.

This is especially true where the petitioner is in federal custody, not state custody.  We safeguard finality for state court convictions out of respect for the dual principles of comity and federalism.  Neither of these considerations is due the erroneously sentenced federal prisoner.  It seems to me that the majority has striven mightily to avoid granting the writ to someone currently deprived of liberty in violation of law.  I am weary of our court’s relentless effort to put more and more procedural angels on the head of the habeas pin.  At some point, we must concede, as the Seventh Circuit did recently, that common sense and basic fairness require that we correct these unlawfully enhanced sentences. See Narvaez v. United States, 674 F.3d 621 (7th Cir. 2011).

I respectfully dissent.

Shelton v. Sec’y, Dept. of Corrections, No. 11-13515: What Next?

In my last post, I discussed the Eleventh Circuit’s reversal of the District Court’s grant of habeas relief in Shelton v. Sec’y, Dept. of Corrections, No. 11-13515, and how the Court managed to avoid directly addressing the constitutionality issue.  Well, for those of you who are thinking that the next step will be filing a petition for writ of certiorari with the United States Supreme Court, you may want to read this article that I read this morning.  It certainly gives you a lot to think about . . .


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