June 22, 2018

Archives for November 20, 2012

Tenth Circuit: Defendant Received Ineffective Assistance of Counsel When His Attorney Disregarded His Request to Appeal

The Tenth Circuit issued its opinion in Clayton v. Jones on Friday, November 16, 2012.

Mr. Clayton entered a blind guilty plea to five counts in state court, including second degree murder. He received a life sentence for the murder charge. He was represented by counsel. During the plea and  sentencing proceedings, the state court informed Mr. Clayton that he had a right to appeal the decision and that he had ten days in which to do so. The court also asked his attorney to stay on as Mr. Clayton’s attorney for a period of ten days and stay on through any appeal time that might run. Neither an application to withdraw the plea nor a direct appeal was filed. Mr. Clayton filed both a pro se application for post-conviction relief (which was denied), and then appealed the state court’s ruling to the Oklahoma Court of Appeals, which affirmed the state court’s denial of post-conviction relief.

Mr. Clayton filed a petition for habeas relief in federal district court, which was denied as procedurally barred. The Tenth Circuit granted a certificate of appealability, vacated the district court judgment, and remanded for a hearing to determine whether Mr. Clayton requested counsel to file an appeal.

At this evidentiary hearing, evidence was presented that Mr. Clayton asked his state court attorney to file an appeal, but no appeal was filed. The State failed to refute Mr. Clayton’s allegation. The magistrate recommended the case be held in abeyance for not longer than 120 days to allow Mr. Clayton to withdraw his guilty plea.

On appeal, the State first argued that the district court committed clear error in finding that Mr. Clayton asked his attorney to file an appeal. Because appeals are part of the criminal process, a defendant is denied effective assistance of counsel if he asks his lawyer to perfect an appeal and the lawyer fails to do so. Ample evidence supported the district court’s finding that Mr. Clayton’s attorney failed to comply with his request to file an appeal. The Tenth Circuit concluded that Mr. Clayton received ineffective assistance of counsel when his attorney disregarded his request to appeal.

The district court further granted Mr. Clayton a conditional writ, allowing him 120 days to withdraw his guilty plea. The State argued this remedy was an abuse of discretion. Since neither the magistrate’s report nor the district court’s order explained why this was the appropriate form of relief, the Tenth Circuit was unable to review the district court’s decision. To facilitate review, the Tenth Circuit ordered a limited remand to allow the district court to clarify why it granted Mr. Clayton a withdrawal of his guilty plea, rather than an appeal out of time.

The Tenth Circuit retained jurisdiction over the appeal.

Tenth Circuit: Unpublished Opinions, 11/16/12

On Friday, November 16, 2012, the Tenth Circuit Court of Appeals issued one published opinion and six unpublished opinions.

United States v. Young

Crosby v. Lt. Martin

Bowie v. Franklin

United States v. Strasser

Arocho v. United States

United States v. Tucker

No case summaries are provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.

Tenth Circuit: Board of Immigration Appeals Interpretation of Continuous-Physical-Presence Statute Entitled to Deference

The Tenth Circuit issued its opinion in Barrera-Quintero v. Holder on Thursday, November 15, 2012.

Hector Barrera-Quintero, a native and citizen of Mexico, entered the United States illegally the first time in 1990. In 2004, he was convicted in Utah for falsifying a government document, a fake Social Security card. He signed a Form I-826, and chose option 3, acknowledging he was in the United States illegally, waiving his right to a hearing, and requested return to Mexico. After leaving the U.S., he returned illegally a couple of months later.

In 2007, he was again arrested in Utah for using fraudulent documents. He applied for cancellation of removal under 8 U.S.C. § 1229b. The immigration judge found Barrera-Quintero ineligible for cancellation of removal because he did not have 10 continuous years of physical presence in the U.S. and his convictions in California for spousal abuse and in Utah involved crimes of moral turpitude. He sought review of a Board of Immigration Appeals (BIA) decision finding him ineligible for cancellation of removal.

The continuous physical presence statute, § 1229b(d)(2), sets forth a failure to maintain a continuous physical presence as a period exceeding 90 days. The BIA, however, has held that this is not the exclusive means of a break in continuous presence. It considers a “departure that is compelled under threat of the institution of deportation or removal proceedings is a break in physical presence for purposes of section [1229b(b)(1)(A)].” The Tenth Circuit joined six other circuits in holding that interpretation reasonable and entitled to Chevron deference.

Barrera-Quintero argued that immigration officials did not adequately inform him of his rights in 2004 so he could not have voluntarily broken his continuous presence. The Tenth Circuit found it lacked jurisdiction to consider this argument as it concerned a discretionary agency decision.

The petition for review was dismissed in part for lack of jurisdiction and denied in part.

Tenth Circuit: 911 Call Sufficiently Reliable to Provide Basis For a Terry Stop

The Tenth Circuit issued its opinion in United States v. Conner on Thursday, November 15, 2012.

Christopher Michael Conner, the defendant,  entered a conditional plea to being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1), reserving the right to appeal the denial of his motion to suppress. He argued that the officers who stopped and frisked him based upon an anonymous 911 call violated the Fourth Amendment.

The Tenth Circuit considered the totality of circumstances to determine whether the 911 call possessed sufficient indicia of reliability to provide the basis for a stop. First, because the caller gave his phone number and address, he was readily identifiable by the police and so not truly anonymous. Second, the caller’s immediate first-hand knowledge added to this reliability. He heard someone say, “no, no,” and he saw the defendant put a gun in his waistband. Third, the caller provided specific details, including a description of the defendant and an SUV he exited. Fourth, the fact that the caller gave his address and phone number, but not his name, was suggestive of his acting as a concerned, but perhaps fearful, citizen, not  someone with malicious motives. The fact that the police were able to corroborate the details of the 911 call also led to the court’s holding that the 911 call possessed sufficient indicia of reliability.

The court also determined the police had a reasonable suspicion that criminal activity was afoot. The stop occurred late at night in a high crime area, shortly after the 911 call reporting what may have been someone being threatened by a gun and the individual who matched the caller’s description of an armed man took evasive action after seeing the police.