July 17, 2019

Archives for April 10, 2013

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

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.

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

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.


Tenth Circuit: Unpublished Opinions, 4/9/13

On Tuesday, April 9, 2013, the Tenth Circuit Court of Appeals issued no published opinions and two unpublished opinions.

In re: Michael Wilson & Partners v. Sokol Holdings, Inc.

DeFalco-Miller v. Colvin

No case summaries are provided for unpublished opinions.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

HB 13-1254: Expanding the Restorative Justice Coordinating Council and Creating Pilot Project for Restorative Justice in Four Judicial Districts

On March 6, 2013, Rep. Pete Lee and Sen. Linda Newell introduced HB 13-1254 – Concerning Restorative Justice. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Under current law, restorative justice victim-offender conferences must be initiated by the victim. As introduced, the bill modifies the requirement of victim initiation in some instances to permit district attorney or offender initiation. There is a restorative justice coordinating council established in the state court administrator’s office; the bill adds:

  • A member of the parole board;
  • A representative from the department of corrections;
  • A representative from a statewide organization representing victims; and
  • A restorative justice practitioner.

The restorative justice coordinating council shall develop a uniform restorative justice satisfaction evaluation. The council shall collect information regarding all existing restorative justice programs and practices and report that data to the house and senate judiciary committees by January 31, 2014.

The bill creates a pilot project for restorative justice programs in four judicial districts. At each site, if a juvenile who is under 18 years of age and could be charged in the petition with a misdemeanor and has not been previously charged or who has not participated in the pilot project, the district attorney shall assess the juvenile’s suitability for restorative justice. The district attorney may also refer any juvenile who is charged with a class 3, 4, 5, or 6 felony and has not been previously charged or who has not participated in the pilot project. If the district attorney determines that the juvenile is a suitable candidate for the restorative justice program, the district attorney may offer the juvenile an opportunity to participate in the restorative justice program. If the juvenile agrees to participate, the district attorney shall not file charges pending completion of the program. If the juvenile fails to complete the program, the district attorney may file a petition against the juvenile. The pilot project sites must annually report to the division of criminal justice in the department of public safety certain information on the pilot projects. The division of criminal justice shall prepare an annual report based on the information received.

The bill creates a $10 surcharge on all crimes to support a restorative justice fund. The fund will be used to defray the costs of restorative justice programs and administrative costs of the restorative justice coordinating council.

On March 26, the Judiciary Committee amended the bill and sent it to the Finance Committee.

HB 13-1251: Authorizing Collection of DNA Sample from Offenders Convicted of Misdemeanors

On March 5, 2013, Rep. Dan Pabon and Sen. John Morse introduced HB 13-1251 – Concerning Collection of a DNA Sample from Offenders Convicted of a MisdemeanorThis summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Under current law, only an offender convicted of a misdemeanor involving unlawful sexual conduct must provide a DNA sample for inclusion in the DNA database at the Colorado Bureau of Investigation. The bill would require collection of a DNA sample from all persons convicted of a class 1, 2, or 3 misdemeanor. The bill was introduced on March 5 and is assigned to the Judiciary Committee.

HB 13-1249: Tightening the Rules for Documentation from Holder of Evidence of Debt Prior to Commencing Foreclosure

On March 4, 2013, Rep. Beth McCann and Sen. Angela Giron introduced HB 13-1249 – Concerning Residential Foreclosures, and, in Connection Therewith, Requiring that Foreclosures be Initiated Only by Persons with a Security Interest in the Property and Requiring Good-Faith Dealing in Loan Modification Negotiations. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Current law allows a “holder of an evidence of debt” (holder), generally a bank or other financial institution, to foreclose on real property under a deed of trust even if the holder’s interest is based on an assignment from the original lender and the assignment or other intermediate documents are not produced, simply by providing a statement from the holder’s attorney that the holder’s interest in the property is valid. The bill removes this provision and otherwise tightens the rules for documentation of the holder’s interest that must be filed with the public trustee and with a court before a foreclosure sale is authorized. The bill also removes an existing limitation on the liability of a holder that forecloses without having possession of the original documents, to all parties damaged by the foreclosure.

The bill adds and amends definitions used throughout the bill.

The bill requires the notice that a residential borrower receives when a holder seeks an order authorizing sale (OAS) under rule 120, C.R.C.P., to include new disclosures specifying that:

  • A statement or opinion offered by the holder or its attorneys or agents is not advice to the borrower, and that those persons’ sole loyalty is to the party that claims to be the holder;
  • In response to the motion for an OAS, the borrower may challenge the sale on specified grounds, including whether the applicant has a right to enforce a recorded security interest in the real property affected by the foreclosure; and
  • It is illegal for a foreclosure consultant to charge an up-front fee.

The bill addresses “dual tracking,” in which a lender simultaneously negotiates with the borrower for a loan modification and pursues foreclosure through the public trustee. This section requires the servicer of the loan to establish a single point of contact by which the borrower may stay apprised of the status of his or her application for a loan modification. Section 4 also prohibits the lender from starting or continuing with the foreclosure process if the borrower is complying with the terms of a trial payment plan or other foreclosure prevention alternative.

The bill explicitly authorizes any party to an OAS proceeding to raise, and requires the court to consider, the issue of whether the moving party has an enforceable legal interest in the property. The bill also requires that the notice posted on the property in advance of the OAS proceeding contain a prominent disclosure that the borrower must respond in writing by a specific date or lose the right to object to a sale of the property.

At the request of the Real Estate Section, the CBA Legislative Policy Committee has voted to oppose the bill in its current form. The bill is assigned to the Business, Labor, Economic, & Workforce Development Committee; the committee will consider the bill on Thursday, April 11, at 1:30 p.m.