August 23, 2019

Archives for March 2, 2012

HB 12-1154: Development of Regional Partnerships Through Colorado Office of Economic Development and International Trade

On January 20, 2012, Rep. Don Coram and Sen. Cheri Jahn introduced HB 12-1154 – Concerning a Regional Approach to Economic Development. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill tasks the Colorado Office of Economic Development with fostering a regional approach to economic development. A region is defined as a state planning and management region utilized by the Department of Local Affairs. Currently, there are 14 such regions in the state.

The office must create a new, or assist in expanding an existing, regional development partnership in each region. A partnership consists of representatives of the region’s businesses and industries, economic and workforce development entities, educational institutions, nonprofit organizations, local governmental bodies, and federal, tribal, and state regulatory authorities.

The bill designates regional economic development partnership boards as the entities that will develop 3-year regional economic development plans, work with partnerships to implement the plans, and provide annual progress reports regarding such implementation to the newly created state regional economic development council.

The council, which consists of one representative from each partnership and the regional development director of the office, meets periodically with the office and the Colorado economic development commission and annually reports to the governor regarding the progress reports.

The bill is assigned to the Appropriations Committee; the bill in is not listed on the Appropriations Committee calendar.

Summaries of other featured bills can be found here.

HB 12-1151: Changes to Laws Regarding Human Trafficking

On January 20, 2012, Rep. Beth McCann and Sen. Steve King introduced HB 12-1151 – Concerning the Trafficking of Human Beings. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill repeals the interagency task force on trafficking in persons. A person is entitled to recover damages and to obtain injunctive relief from any person who commits trafficking in adults, trafficking in children, or coercion of involuntary servitude (a human trafficking crime). A conviction for a human trafficking crime is not a condition precedent to maintaining a civil action.

A building or part of a building, including the ground upon which it is situated and all fixtures and contents thereof, every vehicle, and any real property that is used for a human trafficking crime shall be deemed a class 1 public nuisance and thereby subject to seizure, confiscation, and forfeiture.

Each escort bureau shall provide to each employee of the escort bureau a written notice that includes a statement that human trafficking and coercion of involuntary servitude are prohibited and the name, telephone number, and internet web site address of a local, statewide, or national organization that provides assistance to victims of human trafficking and slavery.

Current law requires each massage parlor to display at all times in a prominent place on the licensed premises a printed card stating that it is illegal for any person under 18 years of age to be on the premises, or for any person to allow any person under 18 years of age to be on the premises, unless he or she is accompanied by his or her parent or has a physician’s prescription for massage services. The bill requires the card to also state that human trafficking crimes are prohibited and that courts may impose fines or imprisonment for violations of human trafficking crimes. The bill also requires each massage parlor to display a card that provides the name and contact information of a state or local organization that provides services or other assistance to victims of human trafficking.

A court shall order expunged all juvenile delinquency records in the custody of the court and any records in the custody of any other agency or official that pertain to a petitioner’s conviction for prostitution, soliciting for prostitution, keeping a place of prostitution, public indecency, soliciting for child prostitution, or any corresponding municipal code or ordinance if, at the hearing, the court finds that the petitioner has established by a preponderance of the evidence that, at the time he or she committed the offense, he or she had been sold, exchanged, bartered, or leased by another person for the purpose of performing the offense; or that he or she was coerced by another person to perform the offense. A person is eligible to petition for such an expungement order at any time.

A defendant may petition the district court of the district in which any conviction records pertaining to the defendant’s conviction for prostitution, soliciting for prostitution, keeping a place of prostitution, public indecency, or any corresponding municipal code or ordinance are located for the sealing of the conviction records, except for basic identifying information. If such a petition is filed, the court shall order the record sealed after the petition is filed, the filing fee is paid, and the defendant establishes by a preponderance of the evidence that, at the time he or she committed the offense, he or she had been sold, exchanged, bartered, or leased by another person for the purpose of performing the offense; or that he or she was coerced by another person to perform the offense.

An order entered to seal such conviction records shall be directed to each custodian who may have custody of any part of the conviction records that are the subject of the order. Whenever a court enters an order sealing such conviction records, the defendant shall provide the Colorado bureau of investigation (bureau) and each custodian of the conviction records with a copy of the order and shall pay to the bureau any costs related to the sealing of his or her criminal conviction records that are in the custody of the bureau. Thereafter, the defendant may request and the court may grant an order sealing the civil case in which the conviction records were sealed. An order sealing such conviction records shall not deny access to the criminal records of a defendant by any court, law enforcement agency, criminal justice agency, prosecuting attorney, or party or agency required by law to conduct a criminal history record check on an individual. An order sealing such conviction records does not vacate a conviction. A conviction sealed may be used by a criminal justice agency, law enforcement agency, court, or prosecuting attorney for any lawful purpose relating to the investigation or prosecution of any case, including but not limited to any subsequent case that is filed against the defendant, or for any other lawful purpose within the scope of his, her, or its duties. If a defendant is convicted of a new criminal offense after an order sealing such conviction records is entered, the court shall order the conviction records to be unsealed. A party or agency required by law to conduct a criminal history record check is authorized to use any sealed conviction for the lawful purpose for which the criminal history record check is required by law.

A petition to seal such conviction records shall include a listing of each custodian of the records to whom the sealing order is directed and any information that accurately and completely identifies the records to be sealed. Upon the entry of an order to seal the conviction records, the defendant and all criminal justice agencies may properly reply, upon an inquiry in the matter, that public conviction records do not exist with respect to the defendant. Inspection of the records included in an order sealing conviction records may thereafter be permitted by the court only upon petition by the defendant. Employers, state and local government agencies, officials, landlords, and employees shall not, in any application or interview or in any other way, require an applicant to disclose any information contained in sealed conviction records. An applicant need not, in answer to any question concerning conviction records that have been sealed, include a reference to or information concerning the sealed conviction records and may state that the applicant has not been criminally convicted.

The bar committee of the Colorado state board of law examiners (bar committee) is not precluded from making further inquiries into the fact of a sealed conviction that comes to the attention of the bar committee through other means. The bar committee has a right to inquire into the moral and ethical qualifications of an applicant, and the applicant does not have a right to privacy or privilege that justifies his or her refusal to answer a question concerning sealed conviction records that have come to the attention of the bar committee through other means.

The Department of Education may require a licensed educator or an applicant for an educator’s license who files a petition to seal a criminal record to notify the department of the pending petition to seal. The department has the right to inquire into the facts of the criminal offense for which the petition to seal is pending. The educator or applicant has no right to privacy or privilege that justifies his or her refusal to answer any questions concerning the arrest and criminal records information contained in the pending petition to seal.

Any member of the public may petition the court to unseal any file that has been previously sealed upon a showing that circumstances have come into existence since the original sealing, and, as a result, the public interest in disclosure now outweighs the defendant’s interest in privacy. The office of the state court administrator shall post on its web site a list of all petitions to seal conviction records that are filed with a district court. A district court may not grant a petition to seal conviction records until at least 30 days after the posting. After the expiration of 30 days following the posting, the petition to seal conviction records and information pertinent thereto shall be removed from the web site of the office of the state court administrator.

In regard to any conviction of a defendant resulting from a single case in which the defendant is convicted of more than one offense, records of the conviction for prostitution, soliciting for prostitution, keeping a place of prostitution, public indecency, or any corresponding municipal code or ordinance may be sealed only if the records of every conviction of the defendant resulting from that case may also be sealed.

Court orders sealing records do not limit the operations of the Colorado rules of civil procedure related to discovery, the Colorado rules of evidence, certain statutory provisions concerning witness testimony, or any state or federal court.

A person less than eighteen years of age who has been trafficked or coerced into involuntary servitude by an offender is eligible to receive restitution from the offender as part of the offender’s sentence for such an offense.

The amended bill has passed the House and is assigned to the Judiciary Committee in the Senate.

Summaries of other featured bills can be found here.

HB 12-1139: Juveniles Charged as Adults Should be Detained in Juvenile Facilities

On January 20, 2012, Rep. Claire Levy and Sen. Lucia Guzman introduced HB 12-1139 – Concerning a Pretrial Detention of Juveniles Prosecuted as Adults. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill prohibits a juvenile who is to be tried as an adult from being held in an adult jail or pretrial facility unless the district court, after a hearing, finds that an adult jail or pretrial facility is the appropriate place of confinement for the juvenile. The bill sets forth a list of factors the district court must consider in making its decision.

The CBA Legislative Policy Committee voted to support this legislation. The bill has cleared the House and is assigned to the Judiciary Committee. The bill is scheduled for Committee review on Monday, February 27 at 1:30 p.m.

Since this summary, the passed out of the Senate Judiciary Committee unamended and was referred to the Senate Committee of the Whole.

Summaries of other featured bills can be found here.

HB 12-1136: Seeking to Prohibit Entities from Contracting and Operating Businesses on Public Land

On January 20, 2012, Rep. Robert Ramirez and Sen. Ellen Roberts introduced HB 12-1136 – Concerning a Prohibition on the Use of Public Land for Retail Sales. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill prohibits a public entity from operating, or contracting with a private entity to operate, for public use any truck stop, fueling station, or convenience store on or near public land, state highways, toll roads, or any other similar infrastructure supported by any state revenues.

The bill does not prohibit a public entity from maintaining existing interstate public rest areas or constructing new interstate public rest areas as allowed by law. The bill also specifies that the prohibition is not retroactive and does not apply to restaurants or service centers related to a golf course or any souvenir shops that are on or near such public land, state highways, toll roads, or such similar infrastructure. The bill is assigned to the State, Veterans, & Military Affairs Committee; it does not appear on the printed House calendar.

Summaries of other featured bills can be found here.

CRCP 121 Statewide Practice Standards Amended by Colorado Supreme Court

The Colorado Supreme Court has amended Rule 121 of the Colorado Rules of Civil Procedure, Local Rules – Statewide Practice Standards. The change was made to Section 1-15 Determinations of Motions. The amendment adds a tenth item, with no change to the preceding nine paragraphs:


This amendment was adopted on February 29, 2012 and is effective immediately.

Click here to review the red line changes to Rule 121, outlined as Rule Change 2012(03).

Colorado Supreme Court Updates Reference in Chapter 38 of Colorado Court Rules

The Colorado Supreme Court has amended Chapter 38 of the Colorado Court Rules, Rule 1 – Public Access to Records and Information. The minor change updates a reference to a Chief Justice Directive that was superseded in 2005. The updated rule now references CJD 05-01 in stead of the outdated CJD 98-05.

This amendment was adopted on February 29, 2012 and is effective immediately.

Click here to review the red line changes to Chapter 38, outlined as Rule Change 2012(02).

The Colorado Reform Roundtable, the Colorado Bar Association, and the Statement of Agreement (Part 2)

Editor’s Note: This is the second part of a two-part article on the Colorado Reform Roundtable and the proposed Statement of Agreement. Part 1 can be read here.


To put the status of the current fiscal crisis in perspective, it is helpful to compare Colorado’s funding of various government services with the funding provided in other states.  According to census data compiled by the nonprofit Colorado Fiscal Policy Institute, as of 2008, the most recent data available, Colorado ranked 47th out of 50 states in total state spending per $1,000 of income.  Colorado was approximately $4.89 billion behind what it would take to move to the U.S. average in terms of investment in critical public services.  More specifically, measured again per $1,000 of income, Colorado in 2008 ranked 48th for investment in public education; 49th in covering families under Medicaid; 48th for higher education; and 48th for transportation and highways.

The CBA is of course more focused on funding for our state courts.  Colorado has fared little better, ranking 41st out of the 50 states per $1,000 of income in funding for its judiciary.

Funding must of course be viewed in the context of demand for services.  Looking back over the last decade, total district court filings have increased 55%, but district court civil filings have increased 221%.  Adjusted for inflation, judicial funding from the General Fund during this time has increased 29%.  The funding gap has been addressed in part by increasing the cost of access to justice.  Adjusted for inflation, cash funding, such as filing fees and attorney license fees, has increased 114%.  In other words, the cost of access to justice is being placed more and more on those in need of that access.

The Interim Long-Term Fiscal Stability Commission in 2009 issued a Final Report to the General Assembly.  It included a brief discussion of the judiciary.  It noted that the judicial branch needed $46 million additional dollars over its current funding to restore the cuts that had been made to the department and address the current backlog in cases.

The bigger concern, however, is not the past, or even the present, but the future.  Federal stimulus funds have ended.  As noted in an editorial in the Denver Post on October 16, 2011:  “Changes that would unravel incompatible fiscal directives in the state constitution are desperately needed, as are long-term stable revenue sources that would support core state missions . . .”

More recently, the CRR conveners have been analyzing the work of the DU Center for Colorado’s Economic Future.  The Center was created as part of the recommendations of the Colorado Economic Futures Panel.  The Panel in turn had been created by the University of Denver to examine the fiscal health of Colorado’s state and local governments and their ability to sustain fundamental public investments appropriate to Colorado’s long-term economic vitality.  The DU Center provides nonpartisan information and analysis of issues impacting the economic future of Colorado.

The Colorado legislature, pursuant to Senate Concurrent Resolution 10-002, had asked the DU Center to conduct a comprehensive review of the state government’s revenue system.  The review was conducted in two phases.  The Phase 1 Report, issued in April 2011, noted that although the state’s short-term budget problems continue to be daunting, the study was focused on Colorado’s long-term fiscal situation – the forces that will drive both revenue productivity and state government out to the year 2025 and beyond.  The objective was to “determine whether the state’s financial problems are simply a reflection of a contracting economy (a cyclical problem), a harbinger of longer-term imbalances (a structural problem), or both.”

The Phase I report concluded that the state’s budgetary woes are both cyclical and structural.  When the economy improves, tax collections will pick up.  Absent major changes in policy, however, a structural imbalance underlying the fiscal workings of state government will ensure that Colorado’s budget problems persist for many years to come.   “Even a strong recovery and sustained job growth over the next decade and a half will not produce enough income and sales tax revenue to afford Colorado’s share of Medicaid funding and the state’s payment for public schools under current constitutional and statutory provisions. Together with the rising (although more stable than in the past) cost of the state’s prison system, the two biggest programs in the state General Fund will continue to crowd out higher education and other programs competing for the same tax dollars.”  The report concluded:  “We find that our current General Fund financing system is in persistent, long-term structural imbalance. The sooner structural changes are undertaken, the less drastic these changes need be.”

In September 2011 The Center released its Phase 2 report.  It lays out options for addressing “a long-term structural imbalance between General Fund revenues and expenditures.”  A Summary of Phase 2 Findings begins as follows:  “Twelve years from now, Colorado will generate only enough sales, income and other general-purpose tax revenue to pay for the three largest programs in the General Fund – public schools, health care and prisons. There will be no tax revenue for public colleges and universities, no money for the state court system, nothing for child-protection services, nothing for youth corrections, nothing for state crime labs and nothing for other core services of state government.”  (Emphasis added.)

The DU Center’s conclusion:  “The enormity of this gap suggests that Coloradans consider both tax increases and spending cuts to fill it. Cutting programs to match revenues, without changing the structure of the current tax system, is unrealistic. While this study did not specifically examine how expenditures for each department could be trimmed, the degree of cuts necessary to rectify the structural imbalance likely prohibits an all-cuts solution.”


Having considered the Phase 1 and 2 reports and other similar information developed by groups like the Colorado Fiscal Policy Institute and the Bell Policy Center, the representatives of the conveners of CRR have drafted a “Statement of Agreement.”  They are requesting that the representatives of the CRR members present the Statement to their governing bodies for consideration and, if deemed appropriate, for approval.  The conveners’ purpose is to determine if there is a consensus among CRR members about the structural nature of the state’s fiscal crisis and, if not, why not.

The Statement provides in pertinent part, consistent with the conclusions in the DU Center Reports, that the imbalance between revenues and costs of services is in part structural and that additional revenue is needed to provide adequate and stable support for our essential public systems in the future.  The Statement recognizes the continuing need to scrutinize expenditures, assess priorities, explore new strategies, and insist on frugal and efficient government.

The Statement of Agreement does not endorse any particular approach to addressing the structural imbalance in revenues and costs.  Some have questioned why the Statement, unlike the DU Center Reports, suggests no blue print for the future.  The answer is that the modest goal for the Statement is merely to recognize that a structural problem exists and to commit to work together to build consensus around a solution.  It is early in the process, but several members of the alliance have already signed the Statement, including Colorado League of Women Voters, Colorado Nonprofit Association, Bell Policy Center, CAPE Retirees, Colorado Children’s Campaign, Great Education Colorado, Colorado Association of School Executives, Colorado Center on Law and Policy, and Colorado Community Health Network.


As demonstrated by the DU Center study, in twelve years not only will there be insufficient funding for our courts, there will be no funding available from our General Fund.  Adequate financial support for our state courts is an essential component of providing our citizens their constitutional right of access to justice.  The Colorado Bar Association has been a leader in understanding and responding to the need for an adequately funded, independent judiciary.  The Colorado Reform Roundtable’s Statement of Agreement provides a small but critical next step on that path of leadership.

Judge Steve C. Briggs (Retired) is the Colorado Bar Association Representative on the Colorado Reform Roundtable.

Are You Up to Date? Torts: 2011 Annual Survey of Colorado Law

A lot happened in 2011 in the area of Tort Law, especially in the appellate courts. Are you familiar with all the case law and developments?

CBA-CLE is offering a number of one-hour CLE classes covering major updates from the past year in a number of practice areas, as well as publishing a full 2011 Annual Survey book for practitioners. Our upcoming Torts program will cover updates in numerous areas of tort law that should interest almost any civil litigator, including:

  • The Dram Shop Statute
  • The Colorado Governmental Immunity Act
  • The Civil Theft Statute
  • The Punitive Damages Statute
  • Res ipsa loquitur doctrine and sudden-emergency instruction
  • Medical malpractice
  • Legal malpractice and negligent misrepresentation
  • Constitutionality of significant punitive-damages award
  • Burden of proof
  • Certification of class actions
  • Proof necessary for but-for causation
  • Recreational-liability claims
  • Negligent infliction of emotional distress
  • Trade-secret status of proprietary computer databases

Also, take a look below at this segment of the Torts: 2011 Annual Survey of Colorado Law chapter by the presenter of the program, John Grund, Esq.

Torts: 2011 Annual Survey of Colorado Law

CLE Program: Torts – 2011 Annual Survey of Colorado Law

This CLE presentation will take place on Tuesday, March 6. 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.

Life in the Gap (Part 4): Things Could Get a Little Bouncy Up Ahead

Editor’s Note: This is the final article in a four-part series of job search and career transition articles. Parts one, two, and three are also online.

The Gap is a violent clash of energies – turbulence to the nth degree.

On the one hand, there’s the energy of What We Want:  visionary, idealistic, imaginative. It puts a gleam in our inspired eye, fills us with passion, makes us reach for the stars. It’s fun to think about the new possibilities. We feel determined, purposeful.

On the other hand, there’s the energy of The Way Things Are: reasonable, established, entrenched. It doesn’t see what we see when we’re all inspired, and it doesn’t care anyway. All it knows is that there’s a right and wrong way to do things, and what we have in mind is definitely the wrong way. Sit down before you hurt yourself. You’re rocking the boat.

Throw those two energies together, and they’re like the Capulets and the Montagues crossing paths in the marketplace. There’s gonna be trouble.

What’s worse, the Gap is our handiwork. We hit turbulence when we take off in the pursuit of our big ideas. We cause it. As long as we’re moving ahead with our plans to create something new, it might get a little bouncy up ahead. (Don’t you love it when the pilot comes on the intercom and says that?)

When we move in the direction of accomplishing something new, we stress our relationships, our routines, our habitual ways of thinking and believing and doing things. We have to, because if we don’t, nothing’s going to change. That’s why, whenever we chase a new dream or goal or big idea, we also chase storms. No, more than that – we create storms. And the bigger the change we want, the more violent the storm is going to be. A little bouncy? When it comes to the Gap, it’s more like Storm-Chaser.

We can stop anytime, and it won’t be turbulent anymore. But making things calm down comes at a stiff price: we need to stop moving toward the goals we want to achieve, the new thing we want to create. Do we really want that? Of course not. We set out to change things. Giving up is a shortcut back to status quo. Been there, done that.

So if we’re on the path to change, we need to buckle up. It could get a little bouncy up ahead.

Five years ago, Kevin Rhodes left a successful 20+ years career in private practice to pursue a creative dream. He recently reopened his law practice, while continuing to write (screenplays and nonfiction) and lead workshops on change for a variety of audiences, including the CBA’s Job Search and Career Transitions Support Group. His latest workshop, Work With Passion: Find Your Fire and Fuel It!, was held January 10, 2012. Watch for a follow-up program this spring.

Tenth Circuit: Unpublished Opinions, 3/1/12

On Thursday, March 1, 2012, the Tenth Circuit Court of Appeals issued no published opinions and two unpublished opinions.


United States v. Villegas

Newton v. Parker

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

Tenth Circuit: Challenge to Rules Limiting Snowmobiles in Wyoming National Parks Moot and Injuries Merely Speculative

The Tenth Circuit Court of Appeals published its opinion in State of Wyoming v. Nat’l Parks Conservation Assoc.on Wednesday, February 29, 2012.

The Tenth Circuit affirmed in part and vacated in part the district court’s decision. “In 1974, the National Park Service (NPS) adopted a default rule prohibiting the use of snowmobiles in all national parks except on designated routes. Pursuant to the default rule, NPS must promulgate a special regulation designating specific routes open to snowmobile use in a particular national park. Absent such a rule, no snowmobiles are allowed. In 1997, environmental and recreational groups began seeking to limit the daily number of snowmobiles permitted [national parks]. . . . In the present cases, Petitioners, the State of Wyoming, filed petitions for review of agency action, challenging the 2009 rules governing snowmobile use in the parks. The district court dismissed the petitions for review, holding Petitioners lacked standing to pursue their claims.”

“NPS prepared an EA in 2008 with the stated purposes of ensuring (1) park visitors had a range of appropriate winter recreational opportunities for an interim period and (2) recreational activities in the parks did not impair or unacceptably impact park resources or values. In the EA, NPS formulated two alternatives for snowmobile use . . . . Alternative 1 proposed elimination of snowmobiles in the parks. Despite the 2004 temporary rule allowing 720 snowmobiles per day into Yellowstone at the time NPS wrote the EA, NPS believed the 2004 temporary rule expired at the end of the 2007 winter season and, in the absence of agency action, snowmobiles were no longer authorized. Thus, the agency labeled Alternative 1 a ‘No Action’ alternative. In contrast, Alternative 2 proposed allowing 318 snowmobiles per day in Yellowstone and 50 snowmobiles per day in Grand Teton. NPS asserted the numbers selected in Alternative 2 reflected the recent snowmobile use trends in the parks. Concluding that neither alternative would pose any significant adverse impacts on the environment, NPS issued a FONSI for both Yellowstone and Grand Teton adopting Alternative 2. NPS promulgated a permanent rule for Grand Teton, but rather than issue a permanent rule for Yellowstone, NPS decided to promulgate a temporary rule for the 2009–10 and 2010–11 winter seasons to replace the reinstated 2004 rule while NPS determined ‘a long-term strategy for Yellowstone winter use.’ . . . [T]he 2009 temporary rule provided for 318 snowmobiles per day in Yellowstone and imposed a commercial guide requirement for snowmobilers.”

Petitioners filed separate petitions for review of agency action challenging both the substance of the 2009 rules and the sufficiency of Respondents’ analysis during the rules’ promulgation procedure. “Substantively, Petitioners asserted the 2009 winter use plans violated the National Park Service Organic Act and the statutes establishing Yellowstone and Grand Teton by arbitrarily restricting snowmobile access in spite of evidence which demonstrates that NPS could permit more snowmobiles without causing unacceptable impacts or impairment to park resources. Procedurally, Petitioners posited the 2009 rules arbitrarily and capriciously limit the daily number of snowmobiles into the parks in violation of the APA. Specifically, Petitioners argued Respondents ignored scientific evidence regarding snowmobile use in the parks and fashioned a rule that will systematically exclude thousands of snowmobilers from the parks. Finally, Petitioners alleged NPS violated NEPA by failing to consider a reasonable range of alternatives or to provide a reasoned explanation for the restriction on the number of snowmobile entries. Wyoming also alleged NPS violated NEPA by failing to take a ‘hard look’ at the environmental consequences of the 2009 rules.”

The Court held that “Petitioners’ procedural challenge to the 2009 temporary rule as to Yellowstone is moot, [and therefore] that portion of the district court’s order must be vacated and remanded to the district court to dismiss that portion of the case for lack of jurisdiction. As to Petitioners’ remaining claims, [the Court concluded] that Petitioners lack Article III standing to bring their substantive challenge to the 2009 temporary rule as to Yellowstone and their entire challenge as to the 2009 permanent rule as to Grand Teton because Petitioners’ alleged injuries are merely speculative.”

Tenth Circuit: 14-Day Limitation After Sentencing Is Jurisdictional and Precludes District Court from Acting on a Rule 35 Motion to Re-Sentence After That Time

The Tenth Circuit Court of Appeals published its opinion in United States v. McGaughy on Wednesday, February 29, 2012.

The Tenth Circuit affirmed in part and vacated in part the district court’s decision. Petitioner “pleaded guilty to possession with intent to distribute marijuana, and the district court sentenced him to 46 months’ imprisonment. Months later, [Petitioner] filed a motion under § 2255 motion alleging ineffective assistance of counsel at sentencing and asking for resentencing. The district court conferred informally with the parties, and the government agreed to re-sentencing. At re-sentencing, the district court again sentenced [Petitioner] to 46 months’ imprisonment, and dismissed the § 2255 motion as moot. [Petitioner] then filed another motion to correct sentence under both Rule 35(a) and § 2255—this time arguing that at re-sentencing the government presented materially false information regarding his efforts to cooperate with the government before pleading guilty. The district court denied the motion.”

The Court determined that “[t]he district court’s re-sentencing raises three related issues. First, whether the court retained jurisdiction to re-sentence [Petitioner] under § 2255 because it never granted the petition, instead dismissing it as moot after re-sentencing. Next, whether the district court had subject-matter jurisdiction to rule on [Petitioner]’s Rule 35(a) claim after the Rule’s 14-day time limit lapsed. Finally, whether the district court properly denied [Petitioner]’s second § 2255 claim. [The Court concluded that] the district court had jurisdiction to re-sentence [Petitioner], but that [his] challenge to his re-sentencing is untimely because Rule 35’s 14-day time limitation is jurisdictional. [The Court agreed] with the district court that the second § 2255 motion was procedurally defaulted,” but vacated the district court’s denial of Petitioner’s Rule 35(a) claim for lack of jurisdiction.