May 26, 2013

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Tenth Circuit: Court Denied Prisoner’s Successive Motion for Relief Under 28 U.S.C. § 2255

April 25, 2013 by Leave a Comment

The Tenth Circuit published its opinion in In re: Leo D. Graham on Tuesday, April 23, 2013.

In 2000, Leo D. Graham pleaded guilty to one count of armed bank robbery. He did not appeal, but later he unsuccessfully sought relief under 28 U.S.C. § 2255. He then moved for authorization to file a second § 2255 motion based on Missouri v. Frye, 132 S. Ct. 1399 (2012), and Lafler v. Cooper, 132 S. Ct. 1376 (2012).

Congress has placed strict limitations on successive § 2255 motions, requiring that a movant obtain this court’s authorization before filing in district court. See 28 U.S.C. § 2255(h). To obtain authorization based on Frye and Lafler, Mr. Graham must show that these decisions establish “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court that was previously unavailable.”

To date, however, every circuit court to consider the question has held that Frye and Lafler do not establish a new rule of constitutional law. Both Frye and Lafler concern the Sixth Amendment right to the effective assistance of counsel in the plea bargaining process. In each case, the Court reached its decision by applying the well-established principles regarding the assistance of counsel that were initially set forth in Strickland v. Washington, 466 U.S. 668 (1984).

The Tenth Circuit denied authorization.

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Tenth Circuit: Neither Savings Clause Nor Suspension Clause Alter Sentencing of Petitioner

April 10, 2013 by Leave a Comment

The Tenth Circuit published its opinion in Abernathy v. Wandes on Monday, April 8, 2013.

Petitioner Gary Abernathy was convicted in 2001 of being a felon in possession of a firearm and was sentenced as an armed career criminal under the Armed Career Criminal Act (“ACCA”) because he had three qualifying ACCA convictions. Consistent with Eighth Circuit precedent at that time, the district court determined that Mr. Abernathy’s previous conviction for a “walkaway” escape was a qualifying conviction under the ACCA.

Several years after Mr. Abernathy’s conviction appeared to be final, the Supreme Court decided Chambers v. United States, 555 U.S. 122 (2009), which held that an escape conviction based on a failure to report (or to return) to a penal facility falls outside the scope of the ACCA’s definition of a violent felony and therefore cannot serve as a qualifying ACCA conviction.

Mr. Abernathy filed a § 2241 petition to challenge his sentence. Mr. Abernathy sought to use the so-called “savings clause” contained in § 2255(e), which permits a federal prisoner to proceed under § 2241 when the remedy under § 2255 is “inadequate or ineffective to test the legality of his detention.” Applying the Fifth Circuit’s savings clause test, the district court held that Mr. Abernathy could not meet the “actual innocence” prong of that test because being “actually innocent” of an enhanced sentence is “not the sort of actual innocence that could justify a determination that the remedy available pursuant to Section 2255 in his criminal case is inadequate or ineffective.” Without reaching the merits of Mr. Abernathy’s Chambers claim, the district court dismissed his § 2241 petition.

After the district court’s decision, however, the Tenth Circuit decided Prost v. Anderson, 636 F.3d 578 (10th Cir. 2011), which set forth a different savings clause test than the one that the district court applied when it dismissed Mr. Abernathy’s petition. Under Prost, access to § 2241 through the savings clause turns solely on whether the remedy provided by § 2255 is “inadequate or ineffective” to test the legality of Mr. Abernathy’s detention.

Abernathy appealed the dismissal of his petition. Mr. Abernathy argued that: (1) Chambers rendered illegal the enhancement of his sentence under the ACCA; (2) he had no adequate or effective remedy under § 2255 and, therefore, its savings clause allowed him to apply for relief under § 2241; and (3) were the Tenth Circuit to deny him access to relief via the savings clause, such a denial would violate the Suspension Clause.

Savings Clause

First, the Court addressed whether Abernathy could demonstrate that he met the requirements of § 2255(e)’s savings clause. Mr. Abernathy had to demonstrate that § 2255’s remedy was “inadequate or ineffective” by showing that the legality of his detention could not have been tested in his initial § 2255 motion. Mr. Abernathy maintained that he could carry this burden because he could not have tested his argument that his escape conviction did not qualify as an ACCA predicate offense in his initial § 2255 motion.

The Tenth Circuit disagreed. The plain language of the savings clause does not authorize resort to § 2241 simply because a court errs in rejecting a good argument, even if the court’s error on the merits happens to be induced by preexisting circuit precedent. Mr. Abernathy cannot make an inadequate-or-ineffective argument because it could have been tested in his initial § 2255 motion. It should not matter that courts likely would have rejected Mr. Abernathy’s Chambers argument in his § 2255 proceeding.

Suspension Clause

Second, Mr. Abernathy argued that denying him the opportunity to proceed under § 2241 violated the Constitution’s Suspension Clause.

The Suspension Clause states that “[t]he Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” U.S. Const. art. I, § 9, cl. 2.  Neither the Supreme Court nor the Tenth Circuit had ever addressed this specific issue.

Reviewing for plain error, the Tenth Circuit determined that it was not clear or obvious under well-settled law that barring Mr. Abernathy from proceeding under § 2241 raised concerns under the Suspension Clause.

Even if it were settled that the Suspension Clause protects the writ as it exists today, it is still unclear whether precluding Mr. Abernathy from proceeding under § 2241 would implicate the Suspension Clause. It is well established that the Suspension Clause does not prohibit the “substitution of a collateral remedy which is neither inadequate nor ineffective to test the legality of a person’s detention.” For purposes of the Suspension Clause, § 2255 would have been an adequate and effective substitute for the writ.

Accordingly, the Tenth Circuit AFFIRMED the district court’s dismissal of Mr. Abernathy’s § 2241 habeas petition.

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Tenth Circuit: High School Students’ First and Fourteenth Amendment Rights Not Violated When School Stopped Their Distribution of Fetus Dolls

April 10, 2013 by Leave a Comment

The Tenth Circuit published its opinion in Taylor v. Roswell Independent School District on Monday, April 8, 2013.

The plaintiffs are high school students from Roswell, New Mexico, who belong to a religious group called “Relentless” (“Plaintiffs”). On January 29, 2010, the Relentless students planned to distribute 2,500 small rubber dolls at two high schools, Roswell High School and Goddard High School. Each two-inch doll was designed to be a realistic representation of a human fetus. The Relentless students did not seek permission before distributing these items.

At Goddard High, Relentless students began distributing the dolls to every student entering the school that morning. When the Assistant Principal discovered that the students did not have prior approval, he stopped the distribution and confiscated the dolls. Dolls were also confiscated at Roswell High. Both schools experienced doll-related disruptions that day.

When these distributions began, Roswell District had two policies concerning distribution of non-school related materials on campus. Policy 7110 required advance permission from the District before distribution of promotional items or advertisements on campus. A separate unwritten policy required students to obtain permission before on-campus distribution of non-school-sponsored literature. This policy was later formalized as written Policy 5195.

Plaintiffs sued Roswell Independent School District and Superintendent Michael Gottlieb in his official capacity (collectively “the District”) seeking declaratory and injunctive relief and alleged three counts. Count I included two First Amendment speech claims. First, Plaintiffs brought a facial challenge against the District’s preapproval policies for non-school-sponsored material, alleging the policies were unconstitutional prior restraints and were unconstitutionally vague. Second, they challenged the policies as applied to Plaintiffs, claiming that the District’s refusal to allow them to distribute the fetus dolls violated their free speech rights. Count II alleged violation of Plaintiffs’ free exercise rights under a so-called hybrid claim theory. Count III alleged that the District discriminated against Plaintiffs in violation of the Fourteenth Amendment’s Equal Protection Clause. A magistrate judge granted summary judgment for the District on all claims, and Plaintiffs appealed on Counts I and III.

Count I: Two First Amendment Speech Claims

The Court noted that two important questions were not at issue. First, this case did not turn on whether the content of Plaintiffs’ message warranted First Amendment protection—there was no question that it did. The record showed Plaintiffs meant to convey a religious and political message when they distributed the dolls, and the Constitution requires they be permitted to express these views at school in some form. Second, the parties did not contest that the District was allowed to confiscate already distributed rubber dolls from any students who threw them, used them to harm school property, or displayed them as props for lewd or obscene expressions of their own.

What was contested was whether the District violated Plaintiffs’ free speech rights when it stopped their on-campus distribution of the dolls. The answer depends on whether school officials reasonably forecast that this particular form of expression would create a substantial disruption to school discipline.

First, Plaintiffs brought a facial challenge against the District’s preapproval policies for non-school-sponsored material, alleging the policies are unconstitutional prior restraints and were unconstitutionally vague.

Plaintiffs’ facial challenge to the school policy failed. Generally, a “prior restraint” restricts speech in advance on the basis of content and carries a presumption of unconstitutionality. See R.A.V. v. City of St. Paul, 505 U.S. 377, 382-83 (1992). The policy was not unconstitutional under the prior restraint doctrine because it constrained official discretion and contained adequate procedural safeguards—and because it applied to the school environment where greater deference is given to school officials. It was not void for vagueness because students of ordinary intelligence could understand its meaning and it neither authorized nor encouraged arbitrary or discriminatory enforcement.

Second, Plaintiffs challenged the policies as applied to Plaintiffs, claiming that the District’s refusal to allow them to distribute the dolls violated their free speech rights.

Under the standards developed in Tinker v. Des Moines, 393 U.S. 503 (1969), and Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988), The Tenth Circuit held that Plaintiffs’ free speech challenges failed because school officials reasonably forecast that the distribution would cause substantial disruption and because the distribution did cause substantial disruption. Plaintiffs’ distribution conveyed a political and religious message and would likely merit First Amendment protection outside the school context. Inside the school walls, however, the Court had to consider whether the expression was, or was reasonably forecast to be, disruptive. The record was replete with reports of doll-related disruptions throughout the day on January 29, 2010, including substantial disruptions to classroom instruction, damage to school property, and risks to student safety. In short, there was ample undisputed evidence that the District had permissible reasons for stopping the distribution. Plaintiffs’ free speech rights were therefore not violated.

Count III: Discrimination Claim

Plaintiffs alleged that the District discriminated against Plaintiffs in violation of the Fourteenth Amendment’s Equal Protection Clause. Plaintiffs argued they were treated differently because non-Relentless students were permitted to distribute Valentine’s Day cards, chocolate, and stuffed animals on the same day that they were prevented from distributing the rubber fetuses.

The Equal Protection Clause provides that “[n]o state shall . . . deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1.A. To prevail on an equal protection claim, a plaintiff must show that she was treated differently from others who were similarly situated. Tonkovich v. Kansas Bd. of Regents, 159 F.3d 504, 532 (10th Cir. 1998).

Applying the rational basis test, the Tenth Circuit held that Plaintiffs’ free exercise and equal protection claims failed because the decision to stop the distribution was not based on religion, and Plaintiffs failed to show they were treated differently from similarly situated students.

The Tenth Circuit noted that the public school setting was important to its analysis.

AFFIRMED.

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Colorado Court of Appeals: Trial Court Abused Its Discretion by Ordering Closure of Court During Testimony of Undercover Police Officers

March 5, 2013 by Leave a Comment

The Colorado Court of Appeals issued its opinion in People v. Hassen on Thursday, February 28, 2013.

Closed Courtroom—Public Trial.

Defendant Omer Hassen appealed his criminal conviction following a jury trial, along with his sentence. The judgment was reversed and the case was remanded for a new trial.

During trial, the prosecution requested that the courtroom be closed during the testimony of two police officers. The prosecution explained that the witnesses were working undercover at the time of trial and expressed concerns that a spectator might recognize them as police officers. Hassen objected, contending the trial court abused its discretion when it closed the courtroom during the testimony of the two officers. However, the trial court granted the prosecution’s request and excluded the public.

Criminal defendants have a right, guaranteed by both the U.S. and Colorado Constitutions, to a public trial. Here, the trial court failed to articulate an overriding interest that would support the total closure of the courtroom, to make findings as to why Hassen’s presence in the courtroom was a risk, to consider less restrictive alternatives to total closure, and to make any findings to support the closure. Therefore, the trial court abused its discretion in ordering the total closure of the courtroom during the testimony of the two undercover police officers.

Summary and full case available here.

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Tenth Circuit: Colorado Sheriff’s Denial of Concealed Handgun License to Washington Resident Affirmed

February 26, 2013 by Leave a Comment

The Tenth Circuit published its opinion in Peterson v. Martinez on Friday, February 22, 2013.

Gray Peterson, a resident of Washington, applied for a concealed handgun license (“CHL”) from the ex officio sheriff of Denver, Colorado. Pursuant to state law, Colorado sheriffs may issue CHLs only to state residents. Colo. Rev. Stat. § 18-12-203(1)(a). Peterson’s application was accordingly denied, prompting Peterson to file suit against the Denver sheriff and Colorado’s executive director of the Department of Public Safety. Peterson claimed that Colorado’s policy with respect to non-resident CHL applicants violated the Second Amendment and the Privileges and Immunities Clause of Article IV of the United States Constitution.

The district court concluded that the executive director of the Department of Public Safety was entitled to Eleventh Amendment immunity because he had no connection to the enforcement of the challenged statute. The Tenth Circuit agreed with that conclusion. Colorado  law requires “each sheriff to implement and administer” the CHL licensing scheme. Colo. Rev. Stat. § 18-12-201(3). Because sheriffs are responsible for administering the state’s CHL regime—not the executive director of the Department of Public Safety—Peterson’s claims against the latter do not fall within the Ex parte Young, 209 U.S. 123 (1908), exception to Eleventh Amendment immunity.

With respect to Peterson’s claims against the Denver sheriff, the Tenth Circuit concluded that the carrying of concealed firearms is not protected by the Second Amendment after applying intermediate scrutiny. The majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. In light of our nation’s extensive practice of restricting citizens’ freedom to carry firearms in a concealed manner, the Tenth Circuit held that this prohibition did not fall within the scope of the Second Amendment’s protections. In other words, the Second Amendment does not provide the right to carry a concealed firearm. Additionally, it is virtually impossible to evaluate a non-resident CHL applicant’s background thoroughly enough to determine that the applicant, if granted a CHL, will not be a danger to himself or the community.

The Tenth Circuit reached the same conclusion with respect to Peterson’s claim that the residency requirement violated his right to travel and violated his rights under the Privileges and Immunities Clause of the U.S. Constitution. As the Supreme Court explained in Supreme Court of Virginia v. Friedman, 487 U.S. 59 (1988), “it is only with respect to those ‘privileges’ and ‘immunities’ bearing on the vitality of the Nation as a single entity that a State must accord residents and nonresidents equal treatment.” Id. at 64-65 . Because the concealed carrying of firearms has been prohibited for much of our history, the Tenth Circuit concluded that this activity failed the Friedman test. In sum, the Tenth Circuit held that carrying a concealed weapon is not a privilege or immunity protected under Article IV.

AFFIRMED.

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Colorado Court of Appeals: Legislative Override of Contractual Obligations Violates Constitutional Contracts Clauses

January 7, 2013 by Leave a Comment

The Colorado Court of Appeals issued its opinion in Raptor Education Foundation, Inc. v. State of Colorado, Department of Revenue, Division of Motor Vehicles on Thursday, December 27, 2012.

Summary Judgment—Impossibility Doctrine—Contracts Clause of U.S. and Colorado Constitutions.

Plaintiff Raptor Education Foundation, Inc. (REF) appealed the trial court’s summary judgment in favor of defendant, the Colorado Department of Revenue, Division of Motor Vehicles (Department). REF also challenged the denial of its CRCP 59(d)(6) motion for a new trial. The judgment was reversed and the case was remanded for further proceedings.

This was a second appeal, following developments after the issuance of the opinion in the first appeal. Between December 1999 and February 2000, the parties executed a “letter of agreement” regarding specialty license plates. The Department agreed to sell the specialty plates only to members of the REF. Several months after the agreement, the Department informed REF that its request had been approved but that it would not restrict sales to its members.

REF sued, alleging breach of contract and violation of equal protection resulting from the Department’s sale to unqualified purchasers. A trial judge found the letter of agreement was not a valid contract, but did find a violation of equal protection and ordered sales to be made only to REF members in the future (2002 order). Both parties appealed. In the interim, the General Assembly passed legislation requiring the Department to restrict sales of the specialty plates to REF members. On the Department’s motion, the appeal was dismissed by a division of the Court of Appeals. The Court found that a contract existed between REF and the Department and held it was error to have found otherwise. The case was remanded for a determination of damages, and the parties eventually settled.

In 2009, the General Assembly amended CRS § 42-3-208 to allow members of the Rocky Mountain Raptor Program to also purchase the specialty plates (2009 amendment). REF sued, alleging breach of contract and violation of the 2002 order. As an affirmative defense, the Department cited the 2009 amendment. The parties filed cross-motions for summary judgment. The trial court entered summary judgment in favor of the Department, concluding that the 2009 amendment made it impossible for the Department to comply with its obligations under the contract with REF. REF filed a motion for a new trial pursuant to CRCP 59(d)(6), which was denied without comment.

On appeal, REF argued that the 2009 amendment violated the Contracts Clauses of the U.S. and Colorado Constitutions. The Court agreed. Both Constitutions prohibit the passing of any laws impairing the obligation of contracts. The Contracts Clauses are not absolute prohibitions but allow legislative action that promotes “the common weal, or . . . general good of the public, though contracts previously entered into between individuals may thereby be affected.” The U.S. Supreme Court has held that the inquiry is “whether the change in state law has ‘operated as a substantial impairment of a contractual relationship.’” [Gen. Motors Corp. v. Romein, 503 U.S. 181, 186 (1992)].In Romein, as here, where a contractual obligation of the government is at issue, the examination is more stringent.

REF and the Department entered into a contract whereby the Department would sell specialty license plates only to members of REF. The 2009 amendment impaired that contract. Neither the 2002 legislation nor the 2009 amendment was foreseeable when the parties entered into their contract because they regulated an area never before subject to regulation. The Court found that the 2009 amendment substantially impaired the contract and therefore breached the Contracts Clauses.

The trial court’s judgment in favor of the Department on the breach of contract claim was reversed and the Court remanded the case for assessment of damages. In addition, the trial court’s judgment in favor of the Department on REF’s claim for violation of the court’s 2002 order was reversed. Because the 2009 amendment was unconstitutional, the trial court also must determine on remand what damages should be assessed for violation of the 2002 order.

Summary and full case available here.

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Tenth Circuit: Preadoptive Parents May Possess Liberty Interest in Familial Association

November 15, 2012 by Leave a Comment

The Tenth Circuit issued its opinion in Elwell v. Byers on Wednesday, November 14, 2012.

The Elwells had been foster parents to T.S. since he was three months old and were in the process of adopting him. After receiving a report that Ms. Elwell had emotionally abused a second foster child, the state department of Social and Rehabilitative Services (SRS) decided to remove that child and terminate the Elwell’s foster care license. Officials then removed T.S. from the Elwell’s home with no prior notice.

A state court found that SRS should have notified the Elwells prior to the removal but did not consider returning T.S. to the Elwells until he had spent a year in another placement. After the state court refused to order the return of T.S. because of the disruption it would cause him, the Elwells filed a 42 U.S.C. § 1983 action against two SRS employees. The employees claimed qualified immunity and the district court granted summary judgment on a substantive due process claim, but denied it on a procedural due process claim.

Kansas law required 30 days notice before a foster child such as T.S. could be removed from his placement and provided for a court hearing at the foster parents’ request. The Tenth Circuit held that because this law mandated procedures, not outcomes, it did not convey a protected liberty interest to the Elwells.

The court did, however, find the Elwells had a protected liberty interest in familial association with T.S. based on the Due Process Clause of the Fourteenth Amendment. While typical foster parents do not possess such an interest, the fact that T.S. had been cared for nearly his entire life by the Elwells and that they were close to adopting him made them closer to being adoptive parents than foster parents. The court also found the Elwell’s constitutional rights were violated by T.S.’s removal without advance notice. Because no other Tenth Circuit or Supreme Court case had held that preadoptive parents have a liberty interest, the right was not clearly established, so qualified immunity applied. The court reversed the district court’s denial of summary judgment for the defendants.

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Tenth Circuit: Students Have Standing to Challenge Kansas Act Funding Public Schools

October 19, 2012 by Leave a Comment

The Tenth Circuit issued its opinion in Petrella v. Brownback on Thursday, October 18, 2012.

The Kansas Constitution requires the Kansas legislature to make suitable provision for finance of the educational interests of the state. In 2005, the Kansas Supreme Court determined the then-current school finance system (the Act) violated the state constitution because it failed to make suitable provisions for funding public schools. Among the Act’s constitutional shortcomings were an overall funding of public education and a wealth-based disparity in public education funding based on difference in assessed property values from district to district. At the same time, the Kansas Supreme Court upheld the Act against an equal protection challenge, finding the Act did not violate either the Kansas or United States constitutions on equal protection grounds.

The Act in part authorized districts to adopt a “Local Option Budget” (LOB), which permitted a district to raise extra money by levying additional property taxes beyond the minimum. The LOB was capped at 31% of the district’s State Financial Aid entitlement. Plaintiffs, students and parents of students, filed this action claiming the LOB cap violated their federal Equal Protection and Due Process rights by effectively reducing their educational services.

The district court dismissed the case for lack of standing, concluding the LOB cap was not severable from the rest of the Act. Therefore, a finding that the LOB cap was unconstitutional would result in the invalidation of the entire Act, leaving the school board unable to levy any taxes at all. In other words, a favorable decision striking the cap could not redress plaintiffs’ alleged injury. This appeal followed.

The three requirements of standing are: injury-in-fact, causation, and redressability. The Tenth Circuit found that Appellants carried their burden to establish the three requirements of Article III standing. The Court stated that Appellants’ standing did not depend on their certain ability to raise funding from within the district. Instead, Appellants had standing because they alleged a violation of their right to equal protection that was fairly traceable to the challenged statute, and that would be redressed by a favorable decision on the merits, even if such a decision resulted in the wholesale invalidation of the Act.

Accordingly, the Tenth Circuit REVERSED and REMANDED for consideration on the merits.

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Hearsay, the Confrontation Clause, and the Colorado Rules of Evidence

October 17, 2012 by Leave a Comment

Hearsay is governed by Article VIII of the Colorado and Federal Rules of Evidence. In criminal cases, the use of hearsay by the government against the defendant is also governed by the Confrontation Clause. Colorado Rule of Evidence 802, the hearsay rule, provides that “[h]earsay is not admissible except as provided by these rules or by the civil and criminal procedural rules applicable to the courts of Colorado or by any statutes of the State of Colorado.” The general ban on hearsay is premised upon the same beliefs that underlie the Confrontation Clause in the federal and Colorado constitutions, namely, that the reliability of a statement can be most accurately determined when the declarant comes before the fact-finder in person, testifies under oath, and is tested by cross-examination.

Most hearsay testimony is admitted under one of the hearsay exceptions. The exceptions to the general ban are usually premised on a belief that the circumstances surrounding the making of certain types of statements satisfy the reliability concerns that gave rise to the general ban.

CRE 803 enumerates 23 exceptions to the hearsay rule for which the availability of the declarant is immaterial. These include spontaneous present sense impression, excited utterance, recorded recollection, records of regularly conducted activity, public records, and more. Statements can fall under multiple exceptions, such as excited utterance and spontaneous present sense impression.

Rule 804 lists hearsay exceptions that apply when the declarant is unavailable. “Unavailable” is defined and the exceptions are listed, including previous testimony, statements against interest, and statements of personal or family history.

CRE 807 is the “catch-all” or “residual” hearsay exception. It was developed after a 1984 Colorado Supreme Court decision, W.C.L. v. People, 685 P.2d 176 (Colo. 1984), in which the statements of a child victim of sexual assault did not fall into any of the specifically enumerated hearsay exceptions. Rule 807 was carved out of CRE 803(24) and 804(b)(5). The residual exception contained in CRE 807 is an under-utilized tool for admitting hearsay statements that do not fit neatly into any of the specific exceptions set out in the rules of evidence.

It is important for every litigator to know and use the hearsay rules, both as the proponent of the hearsay testimony and in opposition. Visit the CLE offices on Tuesday, October 23, when Pat Furman, law professor at the University of Colorado, will present on “Using, Misusing, and Abusing the Hearsay Rules.”

CLE Program:Using, Misusing, and Abusing the Hearsay Rules

This CLE presentation will take place on Tuesday, October 23, at 12:00 p.m. Participants may attend live in our classroom or watch the live webcast.

If you can’t make the live program or webcast, the program will also be available as a homestudy in two formats: video on-demand and mp3 download.
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Colorado Court of Appeals: Judgment Affirmed on Multiple Claims of Error but Case Remanded for Resentencing

October 3, 2012 by Leave a Comment

The Colorado Court of Appeals issued its opinion in People v. Banks on September 27, 2012.

Juvenile Charged as Adult and Convicted—Privilege Against Self-Incrimination—Recorded Statements—Due Process—Confrontation of Witnesses—Polygraph Test—Challenge for Cause—Sentence—Parole.

Defendant appealed his judgment of conviction entered on a jury verdict finding him guilty of first-degree murder and his sentence of life imprisonment without parole. The judgment was affirmed, the sentence was affirmed in part and vacated in part, and the case was remanded to the trial court for resentencing.

On December 11, 2004, defendant, then age 15 and a member of the Tre Tre Crips gang, attended a house party, where he shot and killed the victim, a 16 year old. Defendant was charged as an adult with first-degree murder after deliberation and later was convicted and sentenced to life imprisonment without parole.

On appeal, defendant contended that the trial court erred in denying his motion for mistrial and permitting the prosecution to question a witness regarding an assertion of the privilege against self-incrimination. Although the prosecution asked the witness about the privilege, the witness did not invoke his Fifth Amendment privilege at trial. Further, because the witness’s credibility was impeached by his admission to having three prior felony convictions, being incarcerated at the time of trial, and lying to an officer, the prosecution’s question about privilege did not have any further prejudicial impact on his credibility.

Defendant also argued that the trial court erred in denying two motions for mistrial and admitting five recorded statements containing inadmissible material. A majority of the statements in these interviews were prior inconsistent or consistent statements, and the required foundational elements were met. Further, most of the statements were cumulative of other testimony or provided context, and defendant did not meet his burden of persuasion in showing how the statements prejudiced him. Thus, the trial court did not abuse its discretion in admitting the recorded interviews or in denying defendant’s two motions for mistrial based on the statements.

Defendant further argued that the trial court violated his federal and state constitutional rights to due process and to confront witnesses. Defendant did not preserve his state constitutional argument. Four of the witnesses were available for the second trial, where defense counsel cross-examined them, and the fifth witness, who was subjected to prior cross-examination, was found by the court to be unavailable to testify. Therefore, the trial court did not violate defendant’s right to confront witnesses by admitting the recorded statements.

Defendant also claimed that the trial court erred by permitting the prosecution to repeatedly refer to Hicks, a known gang member who was a defendant in an unrelated high-profile murder case. The testimony regarding Hicks was relevant to show Hicks’s relationship with defendant, a witness’s fear of testifying, and the disposal of the murder weapon. Thus, evidence of Hicks’s involvement in the case at hand was relevant and was not unduly prejudicial.

Defendant contended that the trial court erred in permitting testimony about a witness’s agreement to take a polygraph test. The trial court did not abuse its discretion in admitting testimony that a witness changed his testimony when confronted with a polygraph test when no results of the polygraph test were mentioned.

Defendant argued that the trial court violated defendant’s right to a fair and impartial jury when it denied his challenges for cause regarding two jurors. Both jurors, however, gave assurances to the court about their ability to be fair and impartial despite their concerns about gang affiliation and safety issues.

Defendant further argued that the mandatory sentence of life imprisonment without parole constituted cruel and unusual punishment and violated his rights to equal protection and due process. The Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders. Therefore, defendant’s sentence to life imprisonment was affirmed, but was vacated to the extent he was denied the possibility of parole. The case was remand to the trial court to modify the sentence by including a provision for the possibility of parole after forty years in accordance with CRS § 17-22.5-104(2)(c).

Summary and full case available here.

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Colorado Supreme Court: CU Regents’ Termination of Churchill’s Employment Was a Quasi-Judicial Proceeding; Reinstatement Would Harm Academic Integrity

September 11, 2012 by Leave a Comment

The Colorado Supreme Court issued its opinion in Churchill v. University of Colorado at Boulder on September 10, 2012.

Unlawful Termination Violating Free Speech Rights—42 USC § 1983—Absolute and Qualified Immunity—Quasi-Judicial Proceedings—Equitable Relief.

The Supreme Court affirmed the court of appeals and the trial court, both of which held that Professor Ward Churchill was not entitled to any of the remedies he sought. Churchill brought a claim under 42 USC § 1983, claiming that the University of Colorado at Boulder (CU) Board of Regents (Regents) opened an investigation into his academic integrity in retaliation for the publication of a controversial essay, and that the investigation and resulting termination of his employment violated his free speech rights.

The proceedings against Churchill took more than two years and included several opportunities for Churchill to present witnesses, cross-examine adverse witnesses, and argue his positions. The Court held that the Regents’ termination of Churchill’s employment was a quasi-judicial proceeding, and that the Regents are entitled to absolute immunity.

The Court also affirmed the trial court’s ruling denying Churchill request to be reinstated and to receive front pay. The trial court accepted as fact that the Regents’ investigation found that Churchill had plagiarized his academic writings, fabricated evidence, and violated the school’s academic standards. The trial court ruled that reinstating Churchill would not be appropriate because the relationship between Churchill and CU was irreparably damaged. Reinstating Churchill, the trial court ruled, would harm CU’s ability to enforce its standards of academic integrity and could impair CU’s ability to attract good students and faculty. The trial court’s rulings and findings did not constitute an abuse of its discretion and the rulings were affirmed.

Summary and full case available here.

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Tenth Circuit: Board of Immigration Appeals Must Reevaluate § 212 Waiver Denial Due to Judulang

September 5, 2012 by Leave a Comment

The Tenth Circuit published its opinion in Sosa-Valenzuela v. Holder on August 31, 2012.

Baltazar Sosa-Valenzuela, a lawful permanent resident, shot a gang member and was convicted. The INS (now the DHS) sought to deport him. Sosa-Valenzuela sought a § 212 waiver (since repealed) and later, adjustment of status due to his marriage to an American citizen. An immigration judge (IJ) granted both requests and denied the DHS’s motion to reconsider. The Board of Immigration Appeals (BIA) vacated the IJ’s § 212 waiver and adjustment of status.

The BIA has broad appellate jurisdiction under 8 C.F.R.  § 1003.1 and reviews IJ decisions de novo. It also is required to apply new law to its decisions. The BIA’s broad powers of collateral review do not violate a petitioner’s due process rights because “the only protections afforded are the minimal procedural due process rights for an opportunity to be heard at a meaningful time and in a meaningful manner.” Sosa-Valenzuela was afforded that opportunity.

The Tenth Circuit remanded to the BIA to reevaluate the § 212 waiver decision because the case it relied on in finding Sosa-Valenzuela was ineligible for the waiver had later been found unconstitutional by the Supreme Court in Judulang v. Holder, 132 S. Ct. 476 (2011). The court affirmed the BIA’s denial of adjustment of status due to marriage because its review of the BIA’s exercise of discretion is limited under 8 U.S.C. § 1252 to constitutional claims or questions of law, neither of which was present here.

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2013-05-26 07:30:03