August 18, 2019

Archives for January 10, 2013

Tenth Circuit: Unpublished Opinions, 1/10/13

On Thursday, January 10, 2013, the Tenth Circuit Court of Appeals issued no published opinions and three unpublished opinions.

Zheng v. Holder

United States v. Hernandez-Cornejo

United States v. Bell

No case summaries are provided for unpublished opinions.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

Tenth Circuit: Qualified Immunity Proper Where Backward-Looking Right to Court Access Claim Not Clearly Established

The Tenth Circuit published its opinion in Lynch v. Barrett on Friday, January 4, 2013.

Plaintiff Nick Lynch sued three Denver police officers (Officers) for excessive force. After losing that case, Lynch sued the Officers and the City and County of  Denver (City) for violating his constitutional right to court access by refusing to disclose who exercised excessive force against him in the course of an arrest. Lynch also claimed the City “violated his right to court access by adopting a policy and practice that precipitated the ‘conspiracy of silence’ waged against him.” On the court access claim, the district court denied the Officers qualified immunity in the context of their motion for summary judgment. As to Lynch’s policy and practice claim, the district court denied the City’s motion for summary judgment.

For purposes of deciding the qualified immunity question, the Tenth Circuit assumed the facts were sufficient to find that the Officers violated Lynch’s constitutional right to court access by a cover-up. This assumption allowed it to focus on deciding the second part of a qualified immunity analysis, whether plaintiff’s right to court access was clearly established. Because of prior Tenth Circuit law, “the question of whether an evidentiary cover-up by police officials may violate an individual’s constitutional right to court access was not clearly established at the time of the alleged violation. A reasonable officer might not have understood what Defendant Officers did (or refused to do) violated that right.” The court reversed the denial of qualified immunity to the officers.

The court dismissed the City’s appeal for lack of subject matter jurisdiction. The collateral order doctrine did not apply to the City’s appeal because it was not inextricably intertwined with the Officers’ appeal.

Tenth Circuit: Conviction is Final For Purposes of 21 U.S.C. § 841(b) When No Longer Subject to Direct Appeal

The Tenth Circuit published its opinion in United States v. Holyfield on Tuesday, January 8, 2013.

In 2002, Christopher Holyfield was convicted of drug charges, a violation of 21 U.S.C. § 841(a)(1), and sentenced to a mandatory term of life in prison because he had two prior felony convictions. Holyfield filed a § 2255 motion asserting his appellate counsel was constitutionally ineffective for failing to argue his 1998 California conviction was not final at the time Holyfield committed the instant violation of § 841(a)(1). The district court denied his 28 U.S.C. § 2255 motion for relief from judgment.

Holyfield was given probation when convicted of the 1998 charge. Under California law, an order granting probation is considered a final judgment for purposes of appeal. Holyfield failed to appeal that conviction within 60 days so when Holyfield violated § 841 after that time period, the 1998 conviction was no longer subject to examination on direct appeal. Thus, Holyfield committed a violation of § 841 after his 1998 conviction became final. The Tenth Circuit affirmed the denial of Holyfield’s § 2255 motion.

Colorado Legislature Convened for 2013 Session on January 9, 2013

The Colorado General Assembly convened for the 2013 Legislative Session on Wednesday, January 9, 2013. The House of Representatives introduced five bills on the first day of the session, and 32 bills were introduced in the Senate.

Colorado Bar Association legislative liaison Michael Valdez will be issuing weekly legislative updates, which will appear on the CBA website and on Legal Connection. He will also summarize select bills, which will appear in the legislative updates and on Legal Connection.

Hot topics this legislative session are expected to include civil unions and gun control. The legislative session is scheduled to adjourn on May 8, 2013.

Colorado Real Estate Commission Revamps Brokerage Forms Website

The Colorado Real Estate Commission has updated the webpage where the Colorado Real Estate Commission’s broker forms are available. These forms are available as fillable Adobe PDF documents and may be downloaded from the CREC website.

As reported by CBA-CLE Legal Connection last week, many of these forms are marked “Mandatory 1-13.” However, the forms are only mandatory for use by licensed real estate brokers — attorneys are not required to use these forms exclusively.

Tenth Circuit: Unpublished Opinions, 1/9/13

On Wednesday, January 9, 2013, the Tenth Circuit Court of Appeals issued two published opinions and four unpublished opinions.

Jefferson County Sch. Dist. R-1 v. Elizabeth E.

Jordan v. Fuller

United States v. Angulo-Lopez

United States v. Burk

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