First District Explains New Mailbox Rule for Incarcerated Litigants

If you happen to be an incarcerated litigant, you should read the First District's opinion issued today in Roberto Rivera, M.D. v. Department of Health (1D15-0287). In that opinion, the First District states as follows:

We are concerned that incarcerated litigants may fail to understand the effect of the amendment and write to ensure that incarcerated litigants filing documents with the courts of this state are familiar with the recent amendment to rule 9.420(a)(2), and that they understand the burden the rule places on them to demonstrate timely filing. 

With regard to the amended rule, which is quoted in the opinion, the court stated:

As amended, the rule provides that when the institution has a system designed for legal mail that records the date a document is placed in the hands of an institution official for mailing and the inmate uses that system, then the date of filing will be presumed to be the date recorded by the institution’s legal mail system. If the inmate does not use the system designed for legal mail, the date of filing shall be presumed to be the date it is stamped for filing by the clerk of the court. If the institution does not have a legal mail system, or it has a legal mail system that does not record the date a document is placed in the hands of an institution official for mailing, then the date contained in the certificate of service is presumed to be the date of filing. 

Florida Supreme Court: U.S. Supreme Court's 2012 Ban On Life Sentences To Juveniles Applies Retroactively

In Falcon v. Florida (SC13-865), the Florida Supreme Court unanimously answered a question that the state and federal courts have addressed with differing results. Justice Pariente wrote the unanimous opinion which began by stating the question presented to the court:

The issue in this case is whether the United States Supreme Court’s decision in Miller v. Alabama, 132 S. Ct. 2455, 2469 (2012)—which “forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders”—applies to juvenile offenders whose convictions and sentences were already final at the time Miller was decided. 

The Florida Supreme Court noted that it would reach the same result "[a]pplying this Court’s test for retroactivity, as articulated in Witt v. State, 387 So. 2d 922, 931 (Fla. 1980)," and applying "the test for retroactivity set forth in Teague v. Lane, 489 U.S. 288, 307 (1989)." 

The court held as follows:

we conclude that the rule set forth in Miller constitutes a 'development of fundamental significance' and therefore must be given retroactive effect....Accordingly, we answer the certified question in the affirmative and hold that the Supreme Court’s decision in Miller applies retroactively to juvenile offenders whose convictions and sentences were final at the time Miller was decided. Under Florida Rule of Criminal Procedure 3.850(b)(2), any affected juvenile offender shall have two years from the time the mandate issues in this case to file a motion for postconviction relief in the trial court seeking to correct his or her sentence pursuant to Miller. 

Based on our decision in Horsley v. State, No. SC13-1938, slip op. at 3 (Fla. Mar. 19, 2015), we conclude that the appropriate remedy for any juvenile offender whose sentence is now unconstitutional under Miller is a resentencing pursuant to the framework established in legislation enacted by the Florida Legislature in 2014. See ch. 2014-220, Laws of Fla.  

Third District Grants Prohibition Based Upon Stand Your Ground Law

In Mobley v. Florida (3D13-1566), the Third District Court of Appeal released a split opinion today, granting a petition for writ of prohibition. The majority opinion was written by Judge Wells who was joined by Chief Judge Shepherd. The dissent was written by Judge Salter. The end result is the trial court’s order denying immunity to a man that shot two people is quashed and he will not be tried. The 23 page opinion (including the dissent) is worth reading if the stand your ground law is of interest to you. It also presents a situation where the stand your ground law is actually applied—which seems relevant given the frequency of debate about the law.

Rarely Invoked "All Writs Jurisdiction" Used To Order State To Upload DNA Profile To NDIS

Today, the Florida Supreme Court issued an order and exercised its rarely used "all writs jurisdiction," provided in art. V, § 3(b)(7) of the Florida Constitution. The constitutional provision states that the supreme court "May issue writs of prohibition to courts and all writs necessary to the complete exercise of its jurisdiction." 

Hildwin v. State of Florida (SC10-1082) involved an all writs petition filed by a prisoner, sentenced to death, "seeking an order from this Court directing the Florida Department of Law Enforcement (FDLE) to upload the DNA profile from semen and saliva found on items at the crime scene into the National DNA Index System (NDIS) so that it may be compared in CODIS (the Combined DNA Index System) with forensic profiles obtained from other crime scenes and the profiles of known offenders."

The state argued "that the petition is procedurally barred [and] also contended that the profile may not be eligible to upload and that factual development as to the profile's eligibility may be appropriate." The court had previously determined it had jurisdiction and relinquished jurisdiction to the "circuit court for fact-finding as to the profile's eligibility to be uploaded and manually searched in the [DNA] databases." The circuit court held the hearing and concluded that the DNA was from “an unknown source derived from forensic evidence which has some nexus to the crime scene, crime investigation, and „evidence‟ at trial, and which cannot unambiguously . . . be attributed to an identifiable individual not a perpetrator in the homicide."

After returning from the circuit court, the Florida Supreme Court held:

Having reviewed the record and the facts of this case, we conclude that competent, substantial evidence supports the circuit court's finding that the profile is eligible to be uploaded into NDIS.  We conclude that the profile at issue is probative and meets the requirements of NDIS Procedure 6.4.2.  Accordingly, we hereby grant Hildwin's all writs petition and order the State to ensure that the profile is promptly uploaded into the forensic index in NDIS so that it may be included in that database and searched in CODIS. In light of our order that the profile be uploaded into NDIS, it is unnecessary to decide whether the profile is eligible for upload into Florida‟s SDIS or eligible for a manual keyboard search in NDIS or Florida's SDIS.

Justice Pariente, Justice Lewis, Justice Quince, Justice Labarga, and Justice Perry concurred with the Court's order. Chief Justice Canady concurred "in result" and Justice Polston concurred "in result only."

Eleventh Circuit To Review Two Fair Sentencing Act Cases En Banc

The Eleventh Circuit released two opinions today granting en banc review in criminal cases relating to the Fair Sentencing Act. See HERE and HERE.

In U.S. v. Rojas, the court will consider the appeal en banc and vacated the panel's opinion released on September 7, 2011 and published at 645 F.3d 1234. That order granting en banc review is available HERE. The now vacated panel opinion in this appeal began:

Arthur Smith appeals his 127-month sentence after pleading guilty to possession with intent to distribute 50 grams or more of cocaine base, in violation of 21 U.S.C. § 841(a)(1). He contends that an intervening decision shows that the district court erred by failing to apply the Fair Sentencing Act of 2010 (FSA) in determining his sentence. The government responds that, regardless of the merit of Smith's contention, he waived his right to appeal his sentence and that waiver covers this claim. We hold that FSA claims, like any other type of sentence claim, can be waived by a knowing and voluntary appeal waiver.

In U.S. v. Hudson, the court will consider the appeal en banc and vacated the panel's unpublished opinion released on May 11, 2011. The panel opinion is available HERE and the order granting en banc review is available HERE. This panel opinion began:

Charles Levern Hudson appeals his 240-month, mandatory-minimum sentence for (1) possession with intent to distribute 50 grams or more of cocaine base, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A)(iii), and (2) possession with intent to distribute 5 grams or more of cocaine base, in violation of § 841(a)(1), (b)(1)(B)(iii). He argues that the Fair Sentencing Act of 2010 (“FSA”), Pub. L. No. 111-220, 124 Stat. 2372 (2010), which was enacted after his offense conduct and conviction but before his sentencing, retroactively lowered the statutory mandatory minimum sentence for his offense. In particular, he contends that our statement to the contrary in United States v. Gomes, 621 F.3d 1343 (11th Cir. 2010), cert. denied, (U.S. Apr. 4, 2011) (No. 10-9271), is dicta that we are not obligated to follow here. For the reasons set forth below, we affirm.

SCOTUS Denies Stay of Florida Execution - Breyer Dissents

Approximately 2 hours and thirty minutes after the Miami Herald ran a story saying the State of Florida had executed Manuel Valle, a story picked up by news outlets around the country, the United States Supreme Court denied a stay of execution with a dissent by Justice Breyer. The News-Press, who ran the wire story, captures the timeline below along with the Herald's correction. Directly below that is the Supreme Court's Order [you will likely need to zoom in to view the Supreme Court's Order]:

Manuel Valle Corrections

Manuel Valle v. Florida, 564 U.S. _ (2011) Supreme Court Orders Denying Valle's Petitions

Eleventh Circuit Addresses District Court Judge's Obligations To Pro Se Criminal Defendant

In USA v. Hung Thien Ly (09-12515), the Eleventh Circuit released a published opinion addressing the obligation of a district court judge to a pro se defendant in a criminal case and held that:

In this case, we must confront a district court’s duties to a pro se criminal defendant. After the defendant, Hung Thien Ly, attempted to question witnesses in presenting his defense at trial, the district court inquired whether Ly wished to take the stand and testify on his behalf. During the ensuing colloquy, Ly exposed a misunderstanding of his right to testify. He believed that he could testify on direct examination only if he was being questioned by an attorney; he was clearly ignorant of his ability to provide narrative testimony. Throughout this court initiated colloquy, the district court did not correct Ly’s misunderstanding. Rather, it merely informed him that he had an “absolute right to testify.” Ly chose not to take the stand and the jury found him guilty as charged. 

Ly argues on appeal that the district court effectively denied him his right to testify. We agree. In these circumstances, particularly where the district court initiates a colloquy with the defendant regarding his right to testify, the district court is duty-bound to correct a pro se defendant’s obvious misunderstanding of his right to testify. Because this error was not harmless, Ly’s convictions cannot stand.

***

We stress that our holding is limited to instances in which the district court begins a colloquy regarding the defendant’s right to testify. This area of the law is not well laid, and we should proceed with caution. A district court runs the risk of denying a defendant’s right to testify by engaging in too searching of an inquiry; its questions might dampen the defendant’s protected choice. See part III.A, supra. But we think that requiring a district court to correct a pro se defendant’s basic misunderstanding regarding his fundamental right to testify is not a heavy burden when the court has already ventured into the fray and begun its colloquy with the defendant. Because the district court failed in this respect, Ly’s convictions are VACATED and the case is REMANDED to the district court.

Justice Stevens on the Death Penalty

Justice Stevens wrote a book review about the death penalty and was interviewed by 60 Minutes.  The book review was published by The New York Review of Books, is titled "On the Death Sentence" and can be viewed HERE.  The interview can be viewed HERE and HERE. 

Massachusetts High Court Quashes Warrantless Dorm Search

The Massachusetts Supreme Judicial Court issued an opinion in Commonwealth v. Carr, affirming the trial court's order suppressing evidence because the Boston College Police Department failed to get sufficient permission from the students prior to conducting the on-campus search.  The court stated that the prosecutors "failed to satisfy its burden to prove that consent was freely and voluntarily given."  Quoting the trial court's order, the court noted that even if consent had been given, there were also questions about whether the consent could have been voluntary given the "coercive aspects to the officers' exercise of authority."  The Boston Globe has two articles about the decision: "SJC ruling tosses out evidence in BC students’ drug case" and "Court: BC police didn't get OK for dorm search."  Inside Higher Ed has a story "Warrantless Dorm Search Rejected."  

Last year, the Supreme Judicial Court quashed a different search conducted by the Boston College Police Department which was discussed in a prior post "Massachusetts High Courts Quashes Unconstitutional Search Of Boston College Dorm Room."

Eleventh Circuit Grants En Banc Review In Three Cases

Since November 3, 2010, the Eleventh Circuit has granted en banc review in three cases.  The three cases are:

• Gilbert v. U.S. which vacates the panel opinion published at 609 F.3d 1159 (11th June 21, 2010).  The panel decision had vacated a district court order denying a motion to vacate sentence.;
• Warren Lee Hill, Jr. v. Schoefield which vacates the panel opinion published at 608 F.3d 1272 (11th Cir. June 18, 2010).  The panel had reversed the district court's denial of a habeas petition because "we  conclude that because Georgia’s requirement of proof beyond a reasonable doubt necessarily will result in the execution of the mentally retarded, the Georgia Supreme Court’s decision is contrary to the clearly established rule of Atkins; and
• Childers v. Floyd which vacates the panel opinion published at 608 F.3d 776 (11th Cir. June 8, 2010). The panel had reversed and ordered the district court to grant the habeas corpus petition.

UPDATE: For related articles see the following links:

• Miami Herald: "Ex-Fla. Senate Leader's appeal back in court"
• Pensacola News Journal: "W.D. Childer's case going to federal court"
• Atlanta Journal Constitution: "Appeals court vacates ruling on mental retardation"

Refusal To Submit To Breathalyzer Properly Admitted

In two consolidated cases, Kurecka v. State & State v. Power (4D08-2154 & 4D08-3221), the Fourth District held a DUI defendants refusal to submit to a breathalyzer was properly admitted into evidence even though the defendants mistakenly believed they were entitlted to counsel prior to making the decision.  The court stated:

Our research has not yielded any clear indication that the confusion doctrine is a recognized exclusionary rule or defense to a license suspension in Florida. And though we might agree that the confusion doctrine could properly be applied in circumstances where law enforcement created a defendant’s confusion about the right to counsel for breath testing, the cases before us do not present those circumstances. Here, the undisputed facts show that the defendants’ confusion was not officer-induced. The arresting officers did not advise the defendants of their Miranda rights before or during their reading of the implied consent law.

As discussed above, our implied consent statute does not obligate a police officer to advise an accused that the right to counsel does not apply to the breath test setting. However, we see no harm in placing a minimal burden on officers to briefly explain this to suspects who request counsel when asked to submit to a breath test. Such an explanation would clear up a suspect’s confusion and ensure that refusals admitted into evidence at trial are, in fact, knowing and voluntary refusals that show “consciousness of guilt.” We believe that responsible police practice “should lead professional, courteous officers to advise insistent defendants that the right to counsel does not apply to chemical tests. Where a driver repeatedly asks to speak with an attorney, it would be courteous and simple for the officer to correct the accused’s mistaken assumptions.” Reitter, 595 N.W.2d at 655.

Of course, we cannot impose duties beyond those created by the  legislature. The implied consent statute was enacted to assist in the prosecution of drunk drivers. Determining whether informing a suspect that he does not have the right to a n attorney for breath testing purposes—as part of the implied consent warning—supports or frustrates the goal of gathering evidence for these cases is a matter for the legislature to decide.

Middle District Judge Scriven Grants Habeas Petition - State Failed To Disclose Payment To Witness

In  Guzman v. Secretary, Department of Corrections, United States District Judge Mary Scriven granted a writ of habeas corpus filed by James Guzman because the state failed to disclose a witness had been paid.  Prior opinions from the Florida Supreme Court outline the facts and can found at the following links: Guzman v. State, 941 So. 2d 1045 (Fla. 2006); Guzman v. State, 868 So. 2d 498 (Fla. 2003); Guzman v. State, 721 So. 2d 1155 (Fla. 1998), cert. denied 526 U.S. 1102 (1999); and Guzman v. State, 644 So. 2d 996 (Fla. 1994).  Judge Scriven stated:

Nevertheless, it is clear that the State provided Ms. Cronin with a payment of $500,  which is a significant sum to an admitted crack cocaine addict and prostitute. Ms. Cronin was the key witness in this case, and the credibility of her testimony was critical to the State’s case against Petitioner. The $500 payment would have provided substantial and specific evidence of Ms. Cronin’s motivation to lie against Petitioner. The $500 payment was more than just another avenue of impeachment against an already discredited witness. The fact that the lead detective and the lead witness twice denied the existence of the payment is at least a tacit admission that it was perceived to have relevance to a reasonable fact finder viewing the credibility of this witness.

More importantly though, neither the trial court on remand nor, therefore, the Supreme Court of Florida on review, addressed the impact of the inability to impeach Detective Sylvester concerning her denial that any payment had been provided to Ms. Cronin. Petitioner’s counsel was never given the opportunity to impeach the detective concerning her false testimony with regard to the payment, or to impeach her regarding her having permitted the key witness to give false testimony under oath before the court in the trial proceeding. Certainly a reasonable, objective fact-finder would have considered such testimony relevant to the evaluation of the evidence.

***

The $500 payment would have been of special concern to the fact-finder since Ms. Cronin had previously and repeatedly denied any knowledge of the circumstances surrounding the murder.

***

Under the facts of this case and the applicable federal law, Petitioner has shown that the decision of the Supreme Court of Florida was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States. Likewise, Petitioner has shown that the decision of the Supreme Court of Florida was based on an unreasonable determination of the facts in light of the evidence presented. For this reason, this issue is meritorious, and Petitioner is entitled to habeas relief on this claim.

The decision was discussed HERE in the Miami Herald and is below:
Guzman v. Florida

Florida Supreme Court Stays Execution Of David Eugene Johnston

After hearing oral argument earlier in the day, the Florida Supreme Court stayed the execution of David Eugene Johnston and reversed the summary denial of his post conviction motion. The two page 5-2 order can be viewed HERE.  The court stated:

Having reviewed the record in this case, including prior proceedings, we reverse the summary denial of Johnston's newly discovered evidence claim relating to mental retardation and temporarily relinquish jurisdiction to the circuit court for thirty days for an evidentiary hearing to be held on the issue of whether newly discovered evidence indicates that Johnston is mentally retarded pursuant to Atkins v. Virginia, 536 U.S. 304 (2002), section 921.137, Florida Statutes (2009), and Cherry v. State, 959 So. 2d 702 (Fla. 2007). The Court reserves ruling on the issues raised in this appeal until jurisdiction returns to this Court after the relinquishment. 

Articles can be found at the following links: Orlando Sentinel; Associated Press; UPI; Miami Herald.  Additionally, the briefs in the case, all filed since March 1, 2010, are below:

*Notice of Appeal

*Johnston's Initial Brief on Appeal

*Florida's Answer Brief

*Johnston's Reply Brief

U.S. Supreme Court Reverses Florida Supreme Court In Miranda Warning Case

The United States Supreme Court released its opinion today in Florida v. Powell (08-1175).  Powell was previously discussed on this blog HERE, HERE and HERE.  Writing for the Court, and reversing the Florida Supreme Court, Justice Ginsburg stated:

In a pathmarking decision, Miranda v. Arizona, 384 U. S. 436, 471 (1966), the Court held that an individual must be “clearly informed,” prior to custodial questioning, that he has, among other rights, “the right to consult with a lawyer and to have the lawyer with him during interrogation.” The question presented in this case is whether advice that a suspect has “the right to talk to a lawyer before answering any of [the law enforcement officers’]questions,” and that he can invoke this right “at any time. . . during th[e] interview,” satisfies Miranda. We hold that it does.

The Washington Post has an article titled "Supreme Court OKs Florida Miranda rights warnings" which can be found HERE and the Tampa Tribune has an article titled "U.S. high court backs Tampa police over Miranda warning" which can be found HERE.

Supreme Court Declines To Review Eleventh Circuit's Decision On Manuel Noriega Extradition

The Supreme Court issued an order today denying the petition for certioari filed by General Manuel Noriega, the former head ofthe Panamanian Defense Forces.  Justice Thomas wrote a dissent and was joined by Justice Scalia.  The dissent can be found HERE and stated:

“[I]n our tripartite system of government,” it is the dutyof this Court to “say ‘what the law is.’ ” Boumediene v. Bush, 553 U. S. ___ (2008) (slip op., at 36) (quoting Marbury v. Madison, 1 Cranch 137, 177 (1803)). This duty isparticularly compelling in cases that present an opportu-nity to decide the constitutionality or enforceability of federal statutes in a manner “insulated from the pressures of the moment,” and in time to guide courts and the political branches in resolving difficult questions concerning the proper “exercise of governmental power.” Hamdan v. Rumsfeld, 548 U. S. 557, 637 (2006) (KENNEDY, J., concurring in part); see generally Sanchez-Llamas v. Oregon, 548 U. S. 331, 353–354 (2006); Hamdan, supra, at 588 (quot-ing Ex parte Quirin, 317 U. S. 1, 19 (1942)). This is such a case.

The Eleventh Circuit's decision was previously discussed HERE.  Articles about the Supreme Court's decision can be found at the following links: BBC News,  MSNBC, and UPI.com.

Florida Supreme Court On Waiver Of Speedy Trial Right Due To Continuane

In State of Florida v. Nelson (SC08-2325), the Florida Supreme Court answered a certified question from the Fourth District and held:

When the State is entitled to the recapture period, a continuance that is chargeable to the defense and made after the expiration of the speedy trial period but before a defendant files a notice of expiration waives a defendant’s speedy trial rights under the default period of the rule.

Justice Canady concurred in result only.  Justice Pariente was recused.

Prosecutorial Misconduct Leads To Reversal Of Death Sentence By Florida Supreme Court

In Johnson v. State of Florida (SC08-1213), the Florida Supreme Court reversed the death sentence imposed on Paul Beasley Johnson because "the record here is so rife with evidence of previously undisclosed prosecutorial misconduct that we have no choice but to grant relief."  Interestingly, it was a 4-1 decision of the court.  Chief Justice Quince and Justice Canady were recused and Justice Polston wrote a dissent. Justice Perry wrote the majorities decision and was joined by Justice Pariente, Justice Lewis and Justice Labarga.  Oral argument took place on October 28, 2009 and can be viewed HERE.

The court had previously stayed Mr. Johnson's execution which was discussed HERE,  the application for stay was discussed HERE, and a prior post HERE discusses the Governor's execution of a death warrant a few months ago.  The court stated:

Specifically, we conclude that newly disclosed evidence shows the following. First, after Johnson was arrested and counsel was appointed, the State intentionally induced Johnson to make incriminating statements to a jailhouse informant in violation of Johnson‘s right to counsel. Because Johnson‘s statements were impermissibly elicited, the informant‘s testimony concerning those statements was inadmissible under United States v. Henry, 447 U.S. 264 (1980). Second, although the prosecutor at Johnson‘s first trial knew that Johnson‘s statements were impermissibly elicited and that the informant‘s testimony was inadmissible, he knowingly used false testimony and misleading argument to convince the court to admit the testimony. And third, because the informant‘s testimony was admitted and then later used at Johnson‘s 1988 trial, and because the State has failed to show that this error did not contribute to the jury‘s advisory sentences of death, we must vacate the death sentences under Giglio v. United States, 405 U.S. 150 (1972), and remand for a new penalty phase proceeding before a new jury.

This result is compelled by the applicable case law of both the United States Supreme Court and this Court. This case law is based on the principle that society‘s search for the truth is the polestar that guides all judicial inquiry, and when the State knowingly presents false testimony or misleading argument to the court, the State casts an impenetrable cloud over that polestar.....In other words, whenever the State seeks to obfuscate the truth-seeking function of a court by knowingly using false testimony or misleading argument, the integrity of the judicial proceeding is placed in jeopardy.

The reversal of the death sentences in this case is directly attributable to the misconduct of the original prosecutor. He knowingly presented false testimony and misleading argument to the court in an effort to convince the court that a jailhouse informant was not acting on instructions from the State when he gathered information from Johnson. In fact, however, the informant was acting on instructions from the State, and this rendered his testimony inadmissible. The prosecutor knew this. Yet, the prosecutor sought, successfully, to gain the admission of the informant‘s testimony through legal legerdemain, and the informant subsequently testified at trial and revealed his impermissible testimony to the jury.

This is not a case of overzealous advocacy, but rather a case of deliberately misleading the court.

(emphasis added).  The dissent stated:

In this case, even assuming that the testimony at issue was false and that the prosecutor knew it was false, a reversible Giglio violation did not occur because the testimony was immaterial. When viewed in context, there is no reasonable possibility that Smith‘s testimony affected Johnson‘s death sentences....In light of the fact that Smith‘s testimony was brief, effectively impeached, cumulative, and included statements supporting Johnson‘s proposed drug use mitigators, there is no reasonable possibility that it affected Johnson‘s sentences. Therefore, no reversible Giglio violation occurred.

As previously posted--You can view the docket for Mr. Johnson's 13 appeals to the Florida Supreme Court here.  The docket for the appeal just determined and discussed above can be seen here.  The Florida Supreme Court's opinion in case number No. SC01-2182 can be found here.  Other prior opinions are referenced below:

Johnson v. State, 438 So. 2D 774 (Fla. 1983): Affirming death sentence.

Johnson v. Wainright, 498 So. 2D 938 (Fla. 1986): Granting petition for habeas corpus and ordering new trial.

Johnson v. State, 608 So. 2d 4 (Fla. 1992): Affirming death sentence.

Johnson v. State, 769 So. 2d 990 (Fla. 2000): Affirming denial of postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850.

Johnson v. Moore (Fla. 2002): Denying habeas corpus petition.

Florida Supreme Court To Review Whether It Is Harmless Error To Admit Uncharged Acts Of Sexual Misconduct

Yesterday, the Florida Supreme Court accepted jurisdiction, without oral argument, in Cooper v. State of Florida (SC09-1169).  The order accepting jurisdiction can be viewed HERE.  The Petitioner's Brief on Jurisdiction can be viewed HERE and the Respondent's Brief on Jurisdiction can be viewed HERE.  The opinion under review was released by the Second District on June 10, 2009 and can be viewed HERE.  The Petitioner's summary of argument from its brief on jurisdiction is below:

In Cooper, the Second District Court of Appeal stated: “Because the taped statement is strong evidence of Cooper's guilt, we conclude that the error of allowing the State to present evidence of multiple sexual acts did not affect the verdict and was harmless in this case. See State v. DiGuilio, 491 So.2d 1129 (Fla. 1986).”

This conflicts with the standard for harmless error analysis required by DiGuilio, Knowles v. State, 848 So. 2d 1055 (Fla. 2003), and State v. Lee, 531 So. 2d 133 (Fla. 1988), which rejects weighing of the evidence and focuses the analysis to examine the effect of the error on the trier of fact to hold that an error is harmful unless it is shown beyond a reasonable doubt that the verdict was not affected.

Later, the Petitioner stated:

The Second District found the admission of numerous erroneously admitted uncharged acts of sexual misconduct without proper notice to be harmless error by applying the wrong standard for harmless error analysis.

Eleventh Circuit: § 922(g)(9) Is A Presumptively Lawful Prohibition on Possession of Firearms

In United States v. Ludivic White, Jr. (08-16010), the Eleventh Circuit affirmed the conviction of a person convicted of a misdemeanor crime of domestic violence, in violation of 18 U.S.C. § 922(g)(9).  The decison discussed a number of issues, the last of which was "whether § 922(g)(9) may be properly included as a presumptively lawful “longstanding prohibition[] on the possession of firearms,” a category of prohibitions the Supreme Court has implied survives Second Amendment scrutiny. Heller, __ U.S. __-__, 128 S. Ct. at 2816-17."

The Second Amendment provides as follows: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S. Const. amend. II. Last year, in Heller, the Supreme Court interpreted this language to “guarantee [an] individual right to possess and carry weapons in case of confrontation.” __ U.S. __, 128 S. Ct. at 2797. In Heller, the Court held that the District of Columbia’s ban on handgun possession in the home by law-abiding citizens violated the Second Amendment. Id. In dictum, the Court qualified the right to bear arms: “[l]ike most rights, [it] is not unlimited.” Id. at __, 129 S. Ct. at 2816. “[N]othing in [Heller] should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings . . . .” Id. at __-__, 129 S. Ct. at 2816-17.

***

Thus, although passed relatively recently, § 922(g)(9) addresses the thorny problem of domestic violence, a problem Congress recognized was not remedied by “longstanding” felon-in-possession laws. We see no reason to exclude § 922(g)(9) from the list of longstanding prohibitions on which Heller does not cast doubt.

***

We now explicitly hold that § 922(g)(9) is a presumptively lawful “longstanding prohibition[] on the possession of firearms.” Heller, __ U.S. __-__, 128 S. Ct. at 2816-17. Given that Heller does not cast doubt on the constitutionality of § 922(g)(9), we affirm White’s conviction.

(emphasis added).  The published opinion was written by the Honorable Eugene E. Siler, Jr., United States Circuit Judge for the Sixth Circuit, sitting by designation.

Eleventh Circuit Reinstates Death Sentence-Reverses Grant Of Habeas Relief

In Boyd v. Allen (07-14908), a divided pane of the Eleventh Circuit released a 88 page published opinion reversing the district court's decsion granting habeas relief and reinstated the sentence of death for William Glenn Boyd.  The underlying crime was described by the court as:

The brutal facts surrounding the kidnaping, robbery, and murder of Fred and Evelyn Blackmon are these. The Blackmons disappeared from their home in Anniston, Alabama, on March 26, 1986. Between 9:30 and 10:00 a.m. that morning, Mr. Blackmon, accompanied by a slender white male with long dark hair, cashed a $5,000 check at the drive-in window of an Anniston branch of the First Alabama Bank, where Mr. Blackmon maintained an account. At around 9:00 p.m. that night, Julie Greenwood, petitioner Boyd’s ex-girlfriend and Evelyn Blackmon’s twenty-year-old daughter, returned to the Blackmons’ house, where she lived, only to discover that Fred and Evelyn Blackmon were missing, along with their black Cadillac Eldorado. Two days later, Julie and her father, Wayne Greenwood, filed a missing person’s report with the Anniston Police Department.  The Blackmons were never seen alive again.

With regard to the habeas relief, the opinion indicates the district court entered a 198 page order denying habeas relief.  The order denying relief can be viewed HERE.  "On December 22, 2004, Boyd moved the district court to alter or amend the judgment, pursuant to Fed. R. Civ. P. 59(e). Almost three years later, the district court granted in part and denied in part Boyd’s Rule 59(e) motion."  The order granting the motion to amend can be viewed HERE. With regard to the district court's order, the Eleventh Circuit stated:

The district court granted relief on Boyd’s claim that his trial counsel were constitutionally ineffective during the penalty phase of the trial, holding that trial counsel performed deficiently when they failed to conduct a reasonable investigation of mitigating evidence, particularly concerning his childhood, and, thereafter, failed to present this evidence to the jury and the sentencing judge.

The majority stated:

In reaching our decision, we realize that the jury recommended a life sentence for Boyd, and that prejudice “is more easily shown” in jury override cases.....In light of the brutal nature of these crimes and the specific findings made by the trial court that sentenced Boyd to death, we find no reasonable probability that the mitigating circumstances gathered and presented in connection with Boyd’s state habeas proceedings would have altered the balance of aggravating and mitigating factors in this case and changed the outcome of the sentencing proceedings. Although it is always possible that evidence of Boyd’s childhood could have caused a sentencing judge to impose a sentence of life rather than death, we cannot honestly find that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 688. Thus, on this record, we conclude that Boyd has failed to establish Strickland prejudice, and in turn, has failed to establish that he received ineffective assistance of counsel during the penalty phase of his trial. See id. at 697. The state habeas courts properly denied relief on this ineffective-assistance-of-counsel claim.

Judge Marcus wrote the opinion for the majority and was joined by Judge Birch.  Judge Barkett wrote the dissent.  Judge Barkett stated:

I concur in the majority’s opinion except for its conclusion that counsel’s failure to investigate and present at sentencing the horrific details of Boyd’s background did not prejudice Boyd under Strickland....Importantly, this court has held that in a jury override case, prejudice is “more easily shown.”....On this record, where the trial judge overrode the jury’s recommendation of a life sentence, there is without question a “reasonable probability” that, had counsel presented the wealth of testimony adduced at Boyd’s state habeas proceedings regarding Boyd’s turbulent and abusive childhood, such evidence would have altered the balance of aggravating and mitigating factors relied upon by the trial judge in overriding the jury’s sentence....In the recent case of Porter v. McCollum, 558 U.S. __, 130 S. Ct. 447, 454 (2009), the Supreme Court reversed this court’s judgment that, among other things, petitioner Porter had not established prejudice under Strickland arising out of his counsel’s failure to present evidence of his background to the jury or the trial court.