August 28, 2015

Tenth Circuit: Prison Guard May be Liable for Failing to Mitigate Risk of Sexual Assault by Offsite Supervisor

The Tenth Circuit Court of Appeals issued its opinion in Castillo v. Day on Monday, June 22, 2015.

Plaintiffs in this case are a group of women formerly incarcerated at the Hillside Community Corrections Center in Oklahoma City, Oklahoma. As part of an off-site work program, the women performed landscaping and groundskeeping work at the Oklahoma Governor’s Mansion. They were not under the direct supervision of any prison guard while at the mansion, but were supervised by the mansion’s groundskeeper, Anthony Bobelu. Bobelu and Russell Humphries, a cook at the mansion, sexually assaulted and raped the women at the mansion. In January 2009, plaintiff Reeder told Hillside guard Mary Pavliska that she had been sexually abused by Bobelu and Humphries. Pavliska told her to return to her dorm, and Reeder never heard anything else about it. Pavliska testified that she told Charlotte Day, another guard, about the assaults, but Day denied being told. On another occasion, Day taunted plaintiff Garell about beginning a sexual relationship with Bobelu.

Plaintiffs brought suit under 42 U.S.C. § 1983 and alleging violations of their Eighth Amendment right to be free from cruel and unusual punishment. Their complaint named 15 defendants, including Bobelu, Humphries, Day, and Pavliska. The claims against several defendants were dismissed without prejudice, and all remaining defendants except Bobelu moved for summary judgment. The district court granted summary judgment to all except Day and Pavliska, finding a jury could conclude they were deliberately indifferent to the known substantial risk of serious harm to plaintiffs. Day and Pavliska filed interlocutory appeals, arguing the district court erred in finding they were not entitled to qualified immunity.

The Tenth Circuit quickly disposed of Day’s appeal, noting that her challenge was to the district court’s sufficiency determination and not that the plaintiffs failed to assert violation of a constitutional right. Because the sufficiency issue was not ripe for appeal, the Tenth Circuit dismissed Day’s appeal for lack of jurisdiction.

Finding jurisdiction to evaluate Pavliska’s appeal, the Tenth Circuit considered her arguments that she was entitled to qualified immunity because plaintiffs did not allege she affirmatively violated their constitutional rights, the conduct of Bobelu and Humphries did not rise to the level of a constitutional violation, and she did not have actual knowledge of the bad acts of Bobelu and Humphries. Plaintiffs asserted Pavliska violated their Eighth Amendment right to be free from sexual assault while imprisoned by failing to take reasonable measures to abate the risk of assault. Pavliska argued that because she had no official authority over Bobelu and Humphries she could not be liable for their conduct, which the Tenth Circuit characterized as an argument that she could only be liable for conduct of those she supervised directly. The Tenth Circuit rejected this argument, finding it well established that prison officials can be held liable for failing to prevent assault. Pavliska also argued that the conduct of Bobelu and Humphries was not sufficiently serious to constitute a constitutional violation. The Tenth Circuit noted that this was a challenge to the sufficiency of the evidence and it lacked jurisdiction to hear the issue. Finally, Pavliska argued she could not be held liable for any acts occurring before January 2009, but the Tenth Circuit noted the plaintiffs in their opening brief asserted claims arising after January 2009 only.

The district court’s denial of summary judgment as to Pavliska was affirmed insofar as it was a challenge to the motion denial and not to the sufficiency of the evidence, and Day’s and Pavliska’s appeals challenging sufficiency were dismissed for lack of jurisdiction.

Tenth Circuit: No Speedy Trial Act Violation Where Motions Pending During Contested Period

The Tenth Circuit Court of Appeals issued its opinion in United States v. Zar on Tuesday, June 23, 2015.

Derek Zar and his mother Susanne Zar participated in a mortgage fraud scheme orchestrated by Michael Jacoby. The three were tried together and, after a three-week trial, a jury convicted Jacoby of 11 counts of wire fraud, three counts of money laundering, and two counts of bank fraud; Derek Zar of four counts of wire fraud and one count of money laundering; and Susanne Zar of three counts of wire fraud and one count of money laundering. Each defendant was sentenced to a term of imprisonment and ordered to pay restitution. They each appealed separately, but the Tenth Circuit joined the appeals.

The Tenth Circuit first considered Derek’s and Susanne’s challenges to the district court’s denial of the Zars’ joint motion to sever their trial from Jacoby’s, their joint motion to dismiss the indictment based on Speedy Trial Act violations, and their joint motion to suppress statements made to IRS agents. Because the motion to sever and the motion to dismiss were both based on Speedy Trial Act violations, the Tenth Circuit considered those first. Noting that the Speedy Trial clock is tolled when motions are pending, the Tenth Circuit initially found that motions were pending during the entire period the Zars contest was applicable to their speedy trial rights. The Tenth Circuit analyzed the district court’s rulings and found that it did not abuse its discretion in denying the severance motion, and counted only 23 days ticked off the speedy trial clock between the indictment and the trial. The district court’s denials of the motions to dismiss and to sever were affirmed.

Next the Tenth Circuit evaluated the statements the defendants made to IRS agents. Although it was somewhat concerned that the agents did not specifically announce that their questioning of the Zars was a consensual conversation, the Tenth Circuit found no error in the district court’s allowance of the testimony. The Tenth Circuit found that the statements made by the Zars to the IRS agents were non-testimonial and not barred. Susanne Zar also argued that the admission of statements Derek Zar made to an IRS agent violated her Confrontation Clause rights as stated in Crawford v. Washington. After a plain error review, the Tenth Circuit concluded that the district court’s limiting instruction sufficiently ameliorated any harm that could have come from admission of the statements.

The three defendants jointly argued that Instruction 17 incorrectly stated the elements of wire fraud by omitting an essential element, the scheme to defraud, and by adding an element which impermissibly broadened the basis for conviction. The Tenth Circuit analyzed the instruction and found that the district court correctly applied Tenth Circuit precedent in omitting the language from the instruction. The Tenth Circuit further found that the modifications to the instruction were harmless, and if they had any effect it worked in defendants’ favor. The three defendants also asserted ineffective assistance of counsel claims, which the Tenth Circuit dismissed as unripe since they had not yet been adjudicated in district court.

The defendants also all challenged their sentences, averring the increase in base offense level was unsupported and relying on Apprendi and Alleyne. The Tenth Circuit found their reliance misplaced, since none of the defendants were subject to mandatory minimum sentences. It evaluated each defendant’s sentence and affirmed each separately.

The Tenth Circuit affirmed the district court’s rulings as to each defendant.

Colorado Court of Appeals: No Error in Denial of Presentence Confinement Credit for Nonresidential Corrections Program

The Colorado Court of Appeals issued its opinion in People v. Pimble on Thursday, August 13, 2015.

Sentence—Presentence Confinement Credit—Nonresidential Community Corrections Program.

Defendant pleaded guilty to possession with intent to distribute a schedule II controlled substance and attempted first-degree aggravated motor vehicle theft. The court initially sentenced her to twelve years in community corrections and later reduced this sentence to six years. Her community corrections placement was subsequently terminated. The court then resentenced defendant to six years in the custody of the Department of Corrections (DOC) and granted defendant credit for time served. However, the court did not give credit for her time served in the nonresidential program.

On appeal, defendant contended that she was entitled to presentence confinement credit (PSCC) for time spent in a nonresidential community corrections program, and the court erred by refusing to amend the mittimus to include this as time served. A defendant resentenced to DOC custody is entitled to PSCC for any time served in a residential community corrections facility. However, a defendant must be confined to receive PSCC. Because defendant was not confined in the nonresidential program, she was not entitled to PSCC for this period of time. The order was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Comment Period Open for Proposed Changes to 10th Circuit Local Rules

On August 14, 2015, the Tenth Circuit Court of Appeals announced that changes to its local rules will take effect January 1, 2016. From August 14, 2015 to October 22, 2015, all interested parties are encouraged to review the changes and make comments to the clerk of the court. The changes are outlined in a memorandum explaining the proposals, and are excerpted here:

10th Cir. R. 8.3(A) (addressing applications for stay made to a single judge) This proposed change removes the language at the end of the current rule which states applications for stay made to single judges are disfavored “except in an emergency.” Given technical advancements, all emergency motions can be processed centrally.

10th Cir. R. 9.1(C) (regarding application of the Rule 46.3(B) motion requirement to bail appeals) This proposed change modifies the rule to make clear that the new motion practice announced in R. 46.3(B) does not apply to bail appeals.

10th Cir. R. 17.3 (regarding filing an appendix in agency cases) This proposed change modifies the rule to make clear that when an agency record is filed, the parties need not submit a separate appendix.

10th Cir. R. 25.6 (addressing CM technical failures) This new rule addresses procedures in the event of a CM/ECF system failure.

10th Cir. R. 27.1 (location of the “confer and consent” provision of the local rule on motions) The court’s “confer and consent” rule has been moved to the beginning of local rule 27 for greater visibility. In addition, the rule now makes clear that CJA counsel need not confer on motions filed to withdraw or for continued appointment.

10th Cir. R. 30.1(D)(6) (addressing motions to seal documents) This local rule addresses the submission of sealed materials. The proposed change to the rule requires parties submitting materials under seal (except for presentence reports, which are exempt) to file a motion to do so. The proposed change is made in accord with circuit case law emphasizing the presumption in favor of providing access to judicial records. See Eugene S. v. Horizon Blue Cross Blue Shield of New Jersey, 663 F.3d 1124, 1135-1136 (10th Cir. 2011).

10th Cir. R. 31.5 (addressing the number of hard copies required for briefs) This modification adds a specific clause regarding the court’s already existing requirement that 7 hard copies of briefs must be received in the clerk’s office within 2 business days of the electronic filing.

10th Cir. R. 33.2 (removal of the requirement to have a private settlement discussion) This modification deletes this local rule.

10th Cir. R. 46.3(B) and R. 46.4(B)(1) (incorporating the new motion requirement from the amended CJA Plan adopted effective July 8, 2015) This proposal includes a section memorializing the new motion requirement created by virtue of the court’s amendment of the circuit Criminal Justice Act Plan in July 2015. In addition, please note the language added to Rule 46.4(B)(1), which makes clear the new requirement is not a substitute for filing a motion to withdraw, as appropriate, in Anders cases. In addition, the court’s decision in United States v. Cervantes, ___F.3d___, 2015 WL 4636640 (10th Cir. May 22, 2015) has been incorporated into the rule. Finally, Addendum I of the rules, which is a copy of the CJA Plan, has been updated.

Addendum IV (removal of the Rules for Judicial Misconduct and Judicial Disability Proceedings) Because they are now available on the court’s website, the Rules on Judicial Misconduct have been deleted as an attachment to the Rules.

The Federal Rules of Appellate Procedure will not be updated January 1, 2016. A redline of the Tenth Circuit Local Rules including the proposed changes is available here.

Colorado Court of Appeals: Peremptory Challenges Can Only Be Used on Newly Empaneled Jurors After Waiver

The Colorado Court of Appeals issued its opinion in People v. Terhorst on Thursday, August 13, 2015.

Peremptory Challenge—Waiver—Motion to Suppress—Evidence—Exigent Circumstances—Underage Drinking.

Defendant held a birthday party for his 17-year-old son at their large multistory home in Lakewood. Hundreds of teenagers attended the party, alcohol was present, and some of the teenagers were intoxicated. Police responded to the party after a neighbor reported that “underage kids” were drinking alcohol at defendant’s home. A jury found defendant guilty of four counts of contributing to the delinquency of a minor.

On appeal, defendant argued that he was improperly denied a fifth peremptory challenge during jury selection. Defendant was entitled to five peremptory challenges pursuant to CRS § 16-10-104. Defendant’s counsel used peremptory challenges to strike two potential jurors and waived the third and fourth peremptory challenges. Under Crim.P. 24(d)(2), after having previously waived the use of a peremptory challenge, counsel can only make peremptory challenges “as to jurors subsequently called into the jury box.” Because no jurors were called into the jury box after defendant’s counsel’s waiver of the fourth peremptory challenge, defense counsel lost his ability to use any additional peremptory challenges.

Defendant also argued that the trial court erred in denying his motion to suppress evidence obtained after the warrantless entry and search of his home. Exigent circumstances can justify a warrantless search where there is a risk of immediate destruction of evidence. An underage drinking party attended by hundreds of suspected teenagers creates an exigent circumstance because there is a real threat that the alcohol, which is the evidence of underage drinking, will be destroyed. Accordingly, the police officers’ entry into defendant’s home was legally justified, and the trial court did not err in admitting the evidence derived from that entry.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Retroactive Application of Marijuana Decriminalization Appropriate for Non-Final Sentences

The Colorado Court of Appeals issued its opinion in People v. Boyd on Thursday, August 13, 2015.

Marijuana—Possession—Presumption of Innocence—Burden of Proof—Voir Dire—Amendment 64—Retroactive Application.

An undercover police officer approached defendant and her boyfriend while they were in the boyfriend’s van. The officer purchased marijuana from the boyfriend. The boyfriend put the cash received from the officer on the van’s dashboard. Defendant and her boyfriend then drove away. Other police officers stopped the van and arrested defendant and her boyfriend. The officers found a small amount of marijuana and the cash from the undercover officer in defendant’s pocket. A jury convicted defendant of possession of marijuana and attempted distribution of marijuana.

Defendant contended, for the first time on appeal, that certain comments by the trial court during voir dire incorrectly instructed the prospective jurors, including those ultimately seated, regarding the presumption of innocence. Although the trial court’s comments were not a good statement of the law, they were not instructions and did not reflect adversely on defendant or on the issue of her innocence. The written jury instructions correctly stated the burden of proof and the presumption of innocence. Therefore, the comments did not constitute plain error in this case.

Defendant also argued that Amendment 64 applies retroactively to decriminalize her possession of marijuana, and consequently, her conviction for possession of less than one ounce of marijuana should be vacated. Section 16(3) provides that possession of one ounce or less of marijuana and certain other acts “are not unlawful.” Convicted criminal defendants are entitled to receive the “benefit of amendatory legislation which became effective at any time before the conviction became final on appeal.” Defendant was found guilty on August 8, 2012, and sentenced and convicted on November 14, 2012. Thus, because her appeal remains pending, her conviction for possession of less than one ounce of marijuana was vacated.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Jury Improperly Instructed that “Any Note” is a Security; Reversal Required

The Colorado Court of Appeals issued its opinion in People v. Mendenhall on Thursday, August 13, 2015.

Promissory Note—Securities Fraud—Colorado Securities Act—Jury Instructions—Testimony—Prosecutorial Misconduct.

Defendant was employed as a salesperson by an insurance company that specializes in low-risk insurance products for retirement-age persons. Defendant also was licensed to sell securities through an affiliated broker–dealer. Defendant obtained loans from clients or customers whom he had met through his employment to fund his personal real estate investments, giving each of them a promissory note. He was convicted by a jury of multiple counts of securities fraud and theft.

On appeal, defendant argued that the trial court erred in instructing the jury that any note is a security. One of the elements of securities fraud under the Colorado Securities Act (CSA) is that the defendant engaged in fraud in connection with a security. If there is no security, there cannot be securities fraud. The CSA defines “security” to include “any note.” Because sometimes notes are not securities, however, the court’s instruction constituted error. Because this instructional error was not harmless beyond a reasonable doubt, defendant’s securities fraud convictions were reversed.

Defendant also argued that the trial court erred in admitting the testimony of the district attorney’s investigator regarding his process for investigating someone suspected of criminal activity; under what circumstances he recommended pursuing criminal charges; and the specific investigation of, and decision to pursue charges against, defendant. Because probable cause to charge defendant was not at issue here, the investigator’s statements regarding how many potential cases he received each year and in how many of those cases charges were brought constituted inadmissible evidence. However, because there was overwhelming evidence that defendant was guilty of theft and the investigator’s comments were minimal, any error was harmless.

Defendant further contended that the prosecutor committed misconduct in closing argument when he likened defendant to Bernie Madoff and referred to the victims as members of the “greatest generation.” The Court concluded that the prosecution’s mention of Madoff was referencing a victim’s testimony, and referring to the victims as the “greatest generation” did not rise to the level of plain error.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Consecutive Sentences May Constitute De Facto Life Sentence for Juvenile Offender

The Colorado Court of Appeals issued its opinion in People v. Ellis on Thursday, August 13, 2015.

Juvenile—Murder—Life Sentence—Eighth Amendment—Possibility of Parole—Life Expectancy—Direct Transfer Hearing—Jury Selection—Batson Challenge.

Ellis was 17 years old when he shot and killed C.H. and wounded N.A. from the backseat of his friend’s car. Defendant was found guilty of the charges against him for these crimes. He was sentenced to life with the possibility of parole after forty years on the first-degree murder conviction and a thirty-two-year consecutive sentence for the attempted first-degree murder–extreme indifference conviction.

On appeal, Ellis contended that his sentence to life with the possibility of parole after a minimum of forty years’ imprisonment, together with his mandatory consecutive term of thirty-two years imprisonment, is the equivalent of life without the possibility of parole and, therefore, unconstitutional. The Eighth Amendment prohibits mandatory life sentences without the possibility of parole for juveniles convicted of homicide. Ellis’s sentence would constitute a de facto life sentence without the possibility of parole, and therefore would be unconstitutional, if it left Ellis without a meaningful opportunity for release. However, because Ellis’s contention depended on a factual determination of his life expectancy, which the trial court did not previously conduct, the case was remanded to the trial court to make this determination.

Ellis contended that the trial court erred when it denied his request for a direct transfer hearing. CRS § 19-2-517(1)(a)(I) permits prosecutors to charge juveniles 16 years old or older as adults, without a transfer hearing, if their charges include a class 1 or 2 felony. The reenacted statute included a provision allowing juveniles charged by direct filing to file a motion with the district court seeking transfer to juvenile court. However, the reenacted statute became effective three days after a jury convicted Ellis. Therefore, the trial court did not err when it denied Ellis’s reverse transfer motion as untimely.

Ellis also contended that the trial court abused its discretion when it denied his Batson challenge to the prosecution’s use of peremptory challenges to excuse two potential jurors on account of their race. The prosecution provided a race-neutral explanation, the court found the prosecutor’s reasons believable, and the trial court’s ruling is supported by the record. Therefore, the trial court did not clearly err when it denied Ellis’s Batson challenges.

Summary and full case available here, courtesy of The Colorado Lawyer.

Tenth Circuit: Witness Testimony from Coconspirators who Received Plea Deals Not Inherently Unreliable

The Tenth Circuit Court of Appeals issued its opinion in United States v. Dewberry on Tuesday, June 23, 2015.

During an investigation of Virok Webb for crack cocaine distribution, the government became suspicious of Kennin Dewberry as Webb’s dealer. Some time in 2009 or 2010, Dewberry began supplying between 4.5 and 9 ounces of cocaine powder weekly to Webb, and Webb would convert the powder to crack cocaine or cut it with other ingredients (a process known as “the trick”) to double the quantity of powder. In October 2011 a grand jury issued a superseding indictment charging Dewberry, Webb, and others with two drug conspiracies: Count 1 charged them with conspiring to distribute 280 grams or more of crack cocaine and Count 2 charged them with conspiring to distribute 5 kilograms or more of powder cocaine. The government also filed an information stating that Dewberry had a prior felony marijuana conviction.

Dewberry filed a motion to sever his trial in March 2012, which the trial court denied as premature. He filed another motion to sever in February 2013, which the trial court granted. Dewberry’s trial was held in July 2013, and the government’s case was built almost entirely on the testimony of cooperating witnesses. All of the witnesses entered into plea agreements with the government. Dewberry moved for judgment of acquittal under F.R.Crim.P. 29 at the close of the government’s case and again at the close of his case, but the trial court denied both motions. The jury convicted Dewberry of both counts, and also issued special verdicts pertaining to the amount of drugs and finding he conspired to distribute 280 grams or more of crack cocaine and 5 kilograms or more of powder cocaine. In the PSR, the probation office recommended Dewberry be held accountable for 4.5 ounces of cocaine per week for a 21-week period, and of that he should be accountable for conversion of 2.5 ounces to crack cocaine. The remaining 2 ounces per week was doubled by employing “the trick,” and together these drug amounts equated to a base offense level of 34, which would lead to a presumptive sentencing range of 168 to 210 months, but Dewberry faced a mandatory minimum 20 year sentence because of his prior felony conviction. The district court adopted the PSR’s findings, sentencing Dewberry to concurrent sentences of 240 months for Count 1 and 168 months for Count 2. Dewberry appealed his convictions and sentence.

The Tenth Circuit first evaluated Dewberry’s sufficiency challenges to both counts. Dewberry asserted the government’s evidence was insufficient because it relied on cooperating witnesses who were not reliable and whose testimony was uncorroborated. The Tenth Circuit first noted that it would not reverse a conviction solely because the verdict was based on the uncorroborated testimony of a coconspirator. The Tenth Circuit similarly noted that credibility challenges are generally disfavored and found no reason to entertain Dewberry’s. Although Dewberry asserted the witness testimony was self-serving because they were offered plea deals, the Tenth Circuit found such arrangements common in criminal cases and the arrangement does not necessarily render the testimony incredible.

The Tenth Circuit next considered Dewberry’s challenges to the sufficiency of the evidence concerning the amount of crack cocaine. The jury must have based its finding of 280 grams of crack cocaine on reasonable foreseeability because there was no evidence that Dewberry handled that much. Dewberry contended that the quantity could not have been reasonably foreseeable to him. The Tenth Circuit disagreed, finding sufficient evidence to support the jury’s finding. The Tenth Circuit affirmed the conviction and 240-month sentence.

The Tenth Circuit considered Dewberry’s challenge to the amount of powder cocaine for which he was held responsible. Dewberry argued the amount of crack cocaine attributed to him was incorrect, which affected the amount of powder cocaine. The Tenth Circuit affirmed the district court’s finding, noting that because it made a plausible finding it was not clearly erroneous.

Finally, Dewberry argued the court erred in denying his first motion to sever and causing him to experience undue delays waiting for trial. The Tenth Circuit disagreed, finding Dewberry could show no prejudice since the trial court granted his second motion to sever and finding the issue of Speedy Trial Act delays inadequately briefed.

The convictions and sentences were affirmed.

Tenth Circuit: District Court Lacked Authority to Consider Defendant’s Fraud on the Court Motion

The Tenth Circuit Court of Appeals issued its opinion in United States v. Williams on Tuesday, June 23, 2015.

Jeffrey Dan Williams was convicted on federal drug and firearm charges in the late 1990s. He unsuccessfully challenged his convictions multiple times in state and federal court. In November 2010, he filed his fifth request for postconviction relief, in which he claimed at least five Tulsa police officers who were involved in the investigation in his case were investigated for corruption, including planting evidence and perjury in criminal cases. The Tenth Circuit denied Williams’ motion to file a second or subsequent habeas petition due to lack of supporting evidence but allowed him to refile a motion for authorization containing complete descriptions of all relevant facts, with supporting evidence. Williams attempted to comply but the Tenth Circuit found the evidence insufficient and denied the motion.

Williams next filed a pro se “Motion to Withdraw and Nullify Guilty Plea” in district court in January 2012, arguing that the officers involved in the corruption investigation had “engaged in the same type of illegal conduct” in Williams’ case. Williams attached evidence undermining the testimony of the DEA agent used to support the quantity findings at Williams’ sentencing. The district court construed the motion as an F.R.C.P. 60(d)(3) request, appointed counsel for Williams, ordered the parties to conduct discovery, and held an evidentiary hearing. At the hearing the district court heard testimony from multiple witnesses that supported Williams’ fraud claims. The district court issued an opinion and order vacating Williams’ judgment and sentence and dismissing the third superseding indictment. The court found that the Tulsa Police officers committed a fraud on the court that required Williams’ convictions to be set aside. Alternatively, the district court granted Williams’ motion to withdraw his guilty plea based on the court’s common law authority to prevent a miscarriage of justice. The district court distinguished an intervening Tenth Circuit decision, United States v. Baker, which held that motions alleging fraud on the court should be treated as second or successive petitions, noting that the court sua sponte invoked its authority to construe Williams’ motion as a fraud on the court. The government appealed.

The Tenth Circuit agreed with the government that AEDPA divested the district court of authority to rule on the motion, characterizing it as a second or successive petition for habeas relief. The Tenth Circuit found the district court did not properly invoke its inherent authority to correct fraud on the court and therefore lacked subject matter jurisdiction. Explaining that for AEDPA purposes it looks at the substance of a motion and not the title, the Tenth Circuit found that Williams’ motion challenged his underlying conviction, falling squarely in the definition of a second or successive habeas petition for AEDPA purposes. Although an exception existed for newly discovered factual bases for relief, that exception did not apply in Williams’ case because his claims of corruption existed from its inception. The Tenth Circuit clarified that newly discovered proof is not the same as a newly discovered factual basis, so although the evidence supporting Williams’ corruption claims had not yet been uncovered at the time of his first appeal, the basis of the claims existed. Because Williams failed to obtain certification from the Tenth Circuit before filing his motion, he was prohibited from filing a second or successive habeas motion.

The Tenth Circuit next rejected the district court’s characterization that it was acting sua sponte to correct the fraud on the court. The Tenth Circuit explained that in the years following AEDPA’s enactment, the court’s authority to remedy fraud on the court was narrowed, and in Baker, the Tenth Circuit further limited a court’s authority in cases where the defendant has already had fair habeas review. The Tenth Circuit dismissed the district court’s statement that it was acting sua sponte, finding instead that it acted on the successive application for habeas relief because it considered the new claims and evidence contained in Williams’ motion. The Tenth Circuit reversed the district court’s decision to vacate Williams’ convictions based on fraud on the conviction court.

The Tenth Circuit also found the district court was not free to exercise its common law authority to prevent a miscarriage of justice, noting it must be constrained by the limits set by Congress. Because Williams did not first obtain certification from the Tenth Circuit to appeal, the district court lacked jurisdiction to consider the miscarriage of justice claims.

Finally, the Tenth Circuit evaluated Williams’ motion as a request to file a second or successive petition, which it granted in part. The Tenth Circuit evaluated Williams’ new evidence and the testimony of the witnesses supporting his fraud claims, and found that only his firearm conviction would be affected by the new evidence since Williams did not contest every search or all evidence gained by the police as obtained by corruption. In fact, the Tenth Circuit found that the evidence tended to support Williams’ possession charges.

The Tenth Circuit reversed the district court’s judgment and remanded with instructions to dismiss the case for lack of jurisdiction. The Tenth Circuit granted Williams’ motion to file a second or successive habeas petition as related to the firearm charge. Judge Bacharach dissented, arguing the Circuit should have respected the district court’s assertion that it acted sua sponte.

Forms to Seal Minor In Possession Cases, Relinquish Parental Rights, and More Amended

The Colorado State Judicial Branch released several amended forms in July and August, 2015. The amended forms were in the categories of adoption, DMV appeals, protection orders, relinquishing parental rights, and sealing cases. The forms are available here in PDF format and are available for download as Word documents from the State Judicial website.


  • JDF 345 – “Order for Appointment of Confidential Intermediary” (revised 8/15)


  • JDF 599 – “Complaint for Judicial Review of Denial, Cancellation, Suspension, or Revocation of a Driver’s License or Identification Card” (revised 8/15)


  • JDF 440 – “Mandatory Protection Order” (revised 7/15)


  • JDF 512 – “Relinquishment Interrogatory – Father” (revised 8/15)


  • JDF 305 – “Petition for Expungement of UDD” (revised 8/15)
  • JDF 313 – “Petition to Seal Records Related to Illegal Possession or Consumption of Ethyl Alcohol or Marijuana by an Underage Person (MIP)” (revised 7/15)
  • JDF 314 – “Order Regarding the Sealing of Records Related to Illegal Possession or Consumption of Ethyl Alcohol or Marijuana by an Underage Person (MIP)” (revised 7/15)
  • JDF 323 – “Instructions to File a Petition to Seal Records Related to Illegal Possession or Consumption of Ethyl Alcohol or Marijuana by an Underage Person (MIP)” (revised 7/15)

Click here for all of State Judicial’s JDF forms.

Colorado Court of Appeals: Disclosure of Proprietary Software Not Required When it Would Violate Terms of Licensing Agreement

The Colorado Court of Appeals issued its opinion in Todd v. Hause on Thursday, July 30, 2015.

Colorado Open Records Act—Trade Secret Exception—Personal Information—Redaction—Public Interest—Privacy Rights.

According to his complaint, Todd is a “consulting paralegal to Colorado attorneys” who “devotes a significant amount of his professional time to assisting criminal defense attorneys in DUI and DUID defense. . . .” Todd made several written Colorado Open Records Act (CORA) requests to the Colorado Department of Public Health and Environment (Department) for all data gathered from the Intoxilyzer 9000, the device Colorado law enforcement agencies use to test the breath alcohol level of suspected intoxicated drivers. In response to Todd’s request, the Department asserted that the COBRA (Computerized Online Breath Archive) software is proprietary and that, under its license agreement with the developer, CMI, Inc., it was prohibited from copying or transferring the software. The Department offered to convert the data to Comma-Separated Values (.csv) file format, a different file format than SQL and, after redacting all confidential or personally identifying data fields, to provide the data to Todd. Todd refused this offer and filed a complaint in district court to enforce his CORA request.

On appeal, Todd contended that the Department did not meet its initial burden to show that there was no disputed issue of material fact regarding whether the data in SQL format was protected from disclosure under CORA’s trade secret exception. The Department met this burden, however, by asserting that (1) its software licensing agreement with CMI restricts it from copying or transferring the COBRA software, (2) the Intoxilyzer 9000 test data in SQL format could not be separated from the COBRA software, and (3) disclosure of this information would violate the licensing agreement and disclose trade secrets owned by CMI.

Todd also contended that the district court erred in permitting the Department to redact certain personal information of the operators of the Intoxilyzer 9000. The district court correctly found that disclosure of the operator identification, login information, and personal identification numbers would substantially injure the public interest. However, the Department failed to meet its burden to establish that there was no genuine issue of material fact that the test-takers possessed a legitimate expectation that their personal information would not be disclosed. Accordingly, that part of the summary judgment order allowing redaction of the test takers’ personal information was reversed, and the case was remanded for further proceedings.

Summary and full case available here, courtesy of The Colorado Lawyer.