May 23, 2015

Tenth Circuit: Federal Court Must Defer to State Court Findings of Knowing and Intelligent Miranda Waiver

The Tenth Circuit Court of Appeals issued its opinion in Al-Yousif v. Trani on Friday, March 6, 2015.

Naif Al-Yousif, a native of Saudi Arabia who studied English in the United States for several months, participated with his two roommates to rob and murder a friend who was visiting from Saudi Arabia and dispose of his body in a dumpster. After the killing, Al-Yousif fled to California, but his brother convinced him to return to Colorado. Upon his return, Detective Guigli arrested him and took him to the police station and questioned him with another officer, Detective Martinez, while videotaping the interview. Detective Martinez read a Miranda advisement, and Al-Yousif nodded while the advisement was being read. Martinez asked Al-Yousif if he understood and Al-Yousif said he did. He also signed the advisement form. He spoke to the detectives and made several inculpatory statements, then led them to the dumpster where they had disposed of the body. After that, the detectives returned with Al-Yousif to the police station and again advised him of his rights, at which point he requested an attorney.

Before trial, Al-Yousif moved to suppress the video of the police interrogation, asserting he had not knowingly and intelligently waived his Miranda rights. The trial court heard testimony and reviewed the video, and ultimately ruled to suppress the video despite its impression that Al-Yousif responded appropriately to questions and understood the questions posed to him, finding that the State failed to show a knowing and intelligent waiver. On interlocutory appeal, the Colorado Supreme Court reversed, ruling that Defendant sufficiently understood his rights and the waiver was therefore valid. The video of the interrogation was admitted at trial, and the jury ultimately convicted him. He was sentenced to life imprisonment without parole. On direct appeal, the Colorado Court of Appeals vacated his conviction for theft by receiving, merged the robbery and felony murder convictions, and otherwise affirmed the trial court. The Colorado Supreme Court granted certiorari but then denied it as improvidently granted. The court denied a petition for rehearing. Al-Yousif filed an unsuccessful petition for post-conviction relief and the Colorado Supreme Court denied review.

Al-Yousif then petitioned the U.S. District Court for the District of Colorado for habeas corpus relief. Although the habeas petition was not timely filed, the district court granted equitable tolling and ruled on the merits, finding that the Colorado Supreme Court’s decision was contrary to and an unreasonable application of Miranda. The State of Colorado appealed.

The Tenth Circuit first analyzed the district court’s grant of equitable tolling under the Antiterrorism and Effective Death Penalty Act (AEDPA). Ordinarily, habeas petitions must be filed no later than one year after the state judgment becomes final. In this case, the petition was filed three days late. Defendant asserted his petition was timely because the Colorado Supreme Court denied the motion for rehearing on April 10, 2008, according to a printout he received from the federal district court. However, the Colorado Supreme Court’s opinion was actually issued on April 7, 2008, and received by the federal court on April 10. When the state pointed out Defendant’s error, he asserted that he should be afforded the opportunity to assert equitable tolling. The district court applied equitable tolling without allowing the state to argue in response or make a record.

The Tenth Circuit held that this was error. Quoting prior case law, the Tenth Circuit held that equitable tolling is a rare remedy and should only be applied in unusual circumstances. Plaintiff’s error in this case could have been prevented if his counsel had spoken to defense counsel from the prior state court case, or had requested the opinion from the Colorado Supreme Court instead of relying on the information in the federal district court’s system. The Tenth Circuit reversed the district court’s grant of equitable tolling.

Next, the Tenth Circuit addressed Al-Yousif’s Miranda claim, and found that it owed little deference to the federal district court’s decision. In contrast, the Tenth Circuit found it owed great deference to the Colorado state court decision denying suppression of Al-Yousif’s videotaped interrogation. Under AEDPA, the federal court cannot grant habeas relief to a prisoner with respect to a claim the state court rejected on the merits unless the state court’s decision was contrary to clearly established federal law.

The Tenth Circuit analyzed the Colorado Supreme Court’s denial of suppression of Defendant’s statements, and found it applied a “totality of the circumstances” test and held that the circumstances surrounding the waiver showed that Defendant sufficiently understood his rights. Defendant asked for clarification when he did not understand a question or word during the interrogation, but did not ask for clarification during his Miranda advisement. The court further stated that a defendant need not understand the tactical implication of Miranda rights in order to waive them.

The Tenth Circuit noted that a defendant’s understanding of his Miranda rights is a question of fact entitled to deference under AEDPA. The Tenth Circuit averred it must defer to that finding unless the defendant shows clear and convincing evidence to the contrary, which the instant defendant did not do. The Tenth Circuit reversed the district court’s grant of habeas relief.

Tenth Circuit: Unpublished Opinions, 4/30/2015

On Thursday, April 30, 2015, the Tenth Circuit Court of Appeals issued two published opinions and three unpublished opinions.

Stone v. Simone

King v. Miller

Alvarado v. State of Utah

Case summaries are not provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.

Tenth Circuit: No Sixth Amendment Violation for Long Delay but Defendant’s Speedy Trial Act Rights were Violated

The Tenth Circuit Court of Appeals issued its opinion in United States v. Hicks on Friday, March 6, 2015.

Brian Hicks was arrested following a shooting in 2005, and at the time of arrest he was wearing a bulletproof vest and carrying a loaded .40 caliber Glock magazine. Because of his previous felony convictions, he was not allowed to possess these items, and was charged with one count each of possession of firearms and body armor by a convicted felon. More than a year later, Denver’s Metro Gang Task Force intercepted a call suggesting that Hicks was going to meet a drug dealer to purchase cocaine. After the meeting, police attempted a traffic stop, which turned into a chase. During the chase, Hicks threw a black bag from his car. Police later apprehended Hicks and recovered the bag, which contained several kilograms of cocaine. Hicks was indicted on multiple charges related to conspiracy to distribute cocaine in 2007. The government and Hicks engaged in a years-long period of motions and continuances, and finally on August 1, 2012, the district court ruled that all remaining issues had been resolved and the matter could be set for trial. On August 2, 2012, the government moved for the court to set a trial date. The district court ruled on this motion on September 27, 2012, when it scheduled a status conference and hearing on all pending motions for November 28, 2012. However, on November 15, Hicks filed two motions to dismiss on speedy trial grounds, one based on violation of his Sixth Amendment right to a speedy trial and one based on violations of the Speedy Trial Act. The district court denied both motions. Hicks eventually pleaded guilty in February 2014, reserving the right to appeal the denial of his speedy trial motions.

The Tenth Circuit first reviewed the denial of Hicks’ Sixth Amendment violation claims. The Tenth Circuit found the length of the delay, five and a half years, was presumptively prejudicial, and turned to the reason for the delay. Most of the delay was attributable to Hicks—he filed over forty unique motions, including several requesting deadline extensions or continuances; he changed counsel several times during the proceedings; and he requested that his federal prosecution be delayed until the conclusion of his state court proceedings. Although some of the delay was attributable to the prosecution, the majority of it was because of Hicks, and this factor weighed against him. Next, the Tenth Circuit evaluated whether Hicks asserted his right to a speedy trial, and found that although he first asserted his right in January 2008, he did not renew his assertion until August 2011. This weighed against Hicks also. Finally, the Tenth Circuit evaluated whether the delay prejudiced Hicks. Because he was already serving a life sentence on different charges, the delay did not cause pre-trial confinement concerns. Hicks also failed to make a particularized showing of increased anxiety from the delay, leaving Hicks to show that the delay “fundamentally hampered his ability to assist in his defense.” Hicks did not make this showing; although he was housed in the administrative segregation unit of the prison, he was generally able to meet with his legal counsel at any time during business hours, and he made numerous motions for continuances and extensions of time. The Tenth Circuit found no Sixth Amendment violation and affirmed the district court’s denial of Hicks’ motion.

Turning next to the Speedy Trial Act claims, the Tenth Circuit evaluated whether the delay in setting Hicks’ hearing exceeded the Speedy Trial Act’s 70-day limit, and found that it did. The district court issued its order resolving all remaining issues on August 1, 2012, and the Speedy Trial clock started ticking then. It was tolled for thirty days by the prosecution’s motion to set the trial, but the 70 days expired on November 10, 2012, and Hicks’ Speedy Trial Act rights were therefore violated. The Tenth Circuit reversed the district court’s denial of Hicks’ Speedy Trial motion and remanded with orders to vacate his convictions and determine if they should be vacated with or without prejudice.

Tenth Circuit: Unpublished Opinions, 4/29/2015

On Wednesday, April 29, 2015, the Tenth Circuit Court of Appeals issued no published opinion and two unpublished opinions.

In re Anderson: Anderson v. West

Craft v. Global Expertise in Outsourcing

Case summaries are not provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.

Tenth Circuit: Unpublished Opinions, 4/28/2015

On Tuesday, April 28, 2015, the Tenth Circuit Court of Appeals issued two published opinions and five unpublished opinions.

Smith v. Martinez

Chase v. Marcantel

Wichita Fireman’s Relief Association v. Kansas City Life Insurance Co.

He v. Lynch

Western Energy Alliance v. U.S. Fish & Wildlife Service

Case summaries are not provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.

Tenth Circuit: Panel Rehearing Granted to Limited Extent but Rehearing En Banc Denied

The Tenth Circuit Court of Appeals issued its revised opinion in Fulghum v. Embarq Corporation on Monday, April 27, 2015. The Tenth Circuit granted panel rehearing to a limited extent and issued a revised opinion. The opinion was circulated to all judges and none requested a poll, so en banc rehearing was denied. The Legal Connection summary of the original opinion is available here.

Tenth Circuit: Unpublished Opinions, 4/27/2015

On Monday, April 27, 2015, the Tenth Circuit Court of Appeals issued one published opinion and no unpublished opinion.

Case summaries are not provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.

Tenth Circuit: Strict Liability Offense Does Not Qualify as Crime of Violence for Sentencing

The Tenth Circuit Court of Appeals issued its opinion in United States v. Wray on Tuesday, January 27, 2015.

Reginald Gerome Wray pleaded guilty to being a felon in possession of a firearm and was sentenced to 77 months’ imprisonment and three years’ supervised release. On appeal, Mr. Wray disputed that his prior conviction for “sexual assault – 10 years age difference” constitutes a crime of violence to increase his base sentencing level. Mr. Wray argued that under the U.S. Supreme Court’s decision in Begay v. United States, 553 U.S. 137 (2008), his prior conviction should not count as a crime of violence for sentencing purposes.

The Tenth Circuit analyzed U.S.S.G. § 4B1.2 and its application note. The circuit addressed whether Mr. Wray’s offense qualified as a “forcible sex offense” under the language of the application note or if it was conduct that presented a serious risk of potential injury under the residual clause, § 4B1.2(a)(2).

The Tenth Circuit employed a categorical approach in determining whether Mr. Wray’s prior offense was a crime of violence. Analyzing Supreme Court precedent in Begay and Sykes, the Tenth Circuit found that Begay applied to strict liability or negligence crimes, while the Sykes analysis of whether the conduct was purposeful, violent, or aggressive defined the level of risk. Turning to Mr. Wray’s offense, the Tenth Circuit first addressed the government’s argument that all statutory rape offenses are necessarily forcible because minors are not legally able to consent and rejected it. Applying the reasoning of the Fourth Circuit in a similar matter, the Tenth Circuit found that not all sex offenses where there is no legal consent are forcible, and that the absence of legal consent does not preclude the possibility of actual consent. The Tenth Circuit further found that Colorado statutes specifically contemplate non-forcible sex offenses, and Mr. Wray’s offense was not categorically forcible.

Next, the Tenth Circuit evaluated whether Mr. Wray’s offense fell within the residual clause and found that it did not. Following Begay, the Tenth Circuit found that the elements of Mr. Wray’s offense indicated it was a strict liability crime, since the offender need not have knowledge of the victim’s age in order to be culpable. The Tenth Circuit found that because the crime at issue was a strict liability offense, it fell within the Begay exception and did not qualify as a crime of violence.

The case was remanded for resentencing.

Tenth Circuit: Unpublished Opinions, 4/24/2015

On Friday, April 24, 2015, the Tenth Circuit Court of Appeals issued one published opinion and one unpublished opinion.

Pusha v. Myers

Case summaries are not provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.

Tenth Circuit: Federal Revocation Proceeding Inappropriate Venue for Collateral Attack on State Court Conviction

The Tenth Circuit Court of Appeals issued its opinion in United States v. Engles on Wednesday, March 4, 2015.

Billy Engles, a registered sex offender, was on federal supervised release for an unrelated offense when he accompanied his then-girlfriend to her daughter’s high school to update emergency contact information. He was at the school for approximately ten minutes. A school employee recognized Engles as a sex offender and reported his visit. Engles was charged with violating Oklahoma’s Zone of Safety Around Schools Statute, which prohibits sex offenders from “loitering” on or around schools. Engles argued in state court that he was not “loitering” because his visit to the school was for a specific purpose and was very short, but he was ultimately convicted. He is appealing his state court conviction.

The federal court revoked Engles’ supervised release based on the state court conviction, and Engles appealed. On appeal, however, Engles did not dispute that his criminal conviction provided an adequate evidentiary basis for revocation of release, but rather argued that the conduct complained of in Oklahoma state court did not constitute “loitering.” The Tenth Circuit characterized Engles’ argument on appeal as a straightforward collateral attack on his state court conviction. Noting that Engles must challenge his conviction in state court rather than through a collateral attack in the revocation proceeding, the Tenth Circuit affirmed the revocation of Engles’ supervised release. In a footnote, the Tenth Circuit added that nothing in its opinion prevented Engles from filing a future motion to vacate his supervised release revocation, should he prevail in his state court appeal.

Tenth Circuit: Extender Statute Cannot be Tolled by Agreement of the Parties

The Tenth Circuit Court of Appeals issued its opinion in National Credit Union Administration Board v. Barclays Capital, Inc. on Tuesday, March 3, 2015.

The National Credit Union Administration Board (NCUA), acting in its role as conservator for failing credit unions, investigated the failure of two major credit unions and found they had failed because they had relied upon misrepresentations in offering documents about residential mortgage-backed securities (RMBS) that were essentially junk loans. The NCUA began pursuing remedies against the issuers and underwriters of the RMBS and began settlement negotiations with Barclays and other defendants (collectively, Barclays). During the pendency of the settlement negotiations, the NCUA entered into contracts with Barclays that averred the statute of limitations would be tolled during the settlement negotiations and also that Barclays would not assert untimeliness as a defense in any ensuing litigation.

When the settlement negotiations failed, the NCUA initiated these actions, asserting violations of Sections 11 and 12(a)(2) of the Securities Act, as well as state securities claims under the blue sky laws of Kansas and California. Barclays moved to dismiss for failure to state a claim on several grounds, including untimeliness. Barclays initially honored the tolling agreement but argued the claims were time-barred by the Securities Act’s three-year statute of repose. The NCUA responded that the statute of repose was inapplicable to these cases and instead the Federal Credit Union Act’s “Extender Statute” applied, providing a three-year statute of limitations.

While the actions were pending, the district court issued an opinion in a different case, ruling that contractual tolling was not authorized under the extender statute. Barclays then amended its motion to dismiss based on the different ruling. The district court granted the motion to dismiss, holding the claims were covered by the Extender Statute and not the statute of repose, and that tolling could not be contractually waived. The NCUA appealed.

The Tenth Circuit first determined that the district court correctly applied the Extender Statute and not the statute of repose. The Tenth Circuit recently ruled that the Extender Statute supplants all other time limits. Explaining the difference between statutes of limitations and repose, the Tenth Circuit noted that statutes of repose cannot be equitably tolled and act as an absolute time-bar, whereas statutes of limitations are frequently tolled and are affirmative defenses rather than absolute bars. After analyzing the specific language of the Extender Statute, however, the Tenth Circuit found it explicitly and unambiguously stated it could not be tolled by contract. Nevertheless, the Tenth Circuit reversed the district court’s dismissal, finding that Barclays promised not to assert the affirmative defense of the statute of limitations and it should be held to its promise.

The Tenth Circuit reversed and remanded for further proceedings consistent with its opinion.

Tenth Circuit: Unpublished Opinions, 4/23/2015

On Thursday, April 23, 2015, the Tenth Circuit Court of Appeals issued one published opinion and six unpublished opinions.

Fox-Rivera v. Colorado Department of Public Health & Environment

Barnhill-Stemley v. Colvin

United States v. Schanze

Li v. Holder

Montano v. Public Service Co. of New Mexico

Montiel-Hernandez v. Holder

Case summaries are not provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.