June 26, 2019

Archives for December 2, 2015

Tenth Circuit: Miller v. Alabama Only Affected Mandatory Life Sentences for Juvenile Offenders

The Tenth Circuit Court of Appeals issued its opinion in Davis v. McCollum on Tuesday, August 25, 2015.

When he was 16, Johnny Davis was involved in a botched convenience store robbery that resulted in the murder of the store clerk. In 1992, under the Oklahoma sentencing scheme in effect at the time, he was sentenced to a discretionary sentence of life imprisonment without the possibility of parole. Davis appealed, and the OCCA affirmed his sentence in 1995 on direct appeal. He did not appeal the OCCA’s determination and his sentence became final. In June 2013, Davis filed a pro se application for postconviction relief in state court, which claimed his age at the time of the offense precluded the sentence of life without parole. Two weeks later, with the assistance of counsel, he filed a second application, asserting the same claims. The state court denied his applications and the OCCA affirmed those denials.

In May 2014, Davis filed a pro se federal habeas petition, asserting that (1) his life without parole sentence violated the Constitution because of the new standard expressed by the Supreme Court in Miller v. Alabama, 132 S. Ct. 2455 (2012); (2) his counsel was ineffective at trial and on appeal; and (3) as a juvenile offender, his sentence was unconstitutional. The district court denied him a COA, finding his second and third claims were time-barred and the first issue lacked merit because Miller was inapposite. Davis appealed.

The Tenth Circuit, using AEDPA deference, agreed with the district court that the second and third claims were time-barred. Because his conviction became final before the enactment of AEDPA, his deadline to file was in April 1997. The Tenth Circuit next addressed whether Miller created a new constitutional rule for all cases in which juvenile offenders were sentenced to life without the possibility of parole. The Tenth Circuit noted that Miller only created a new rule for cases in which a juvenile offender was sentenced under a mandatory sentencing scheme; because the Oklahoma court had discretion to impose life with the possibility of parole, Miller was inapplicable to Davis’s case.

The district court’s denial of a COA to Davis was affirmed.

Shay Whitaker and Peter Michaelson Appointed to 18th Judicial District Court Bench

On Monday, November 30, 2015, the governor’s office announced the appointment of Shay Whitaker and Peter Michaelson to the Eighteenth Judicial District Court bench. They will fill vacancies created by the retirements of Hon. Angela Arkin and Hon. Timothy Fasing, effective January 1, 2016. There are two additional vacancies forthcoming on the Eighteenth Judicial District Court bench: Hon. Gerald Rafferty will retire effective January 23, 2016, and Hon. Christopher Cross will retire effective February 8, 2016. Applications are still being accepted for the vacancy created by Judge Cross’s retirement.

Shay Whitaker is currently a criminal defense attorney at Whitaker & Associates in Aurora. She received both her undergraduate degree, magna cum laude, and her law degree from The Ohio State University. In 1997, she moved to Denver, and has been in private practice at various firms since then. She also serves as appointed counsel for Truancy Court.

Peter Michaelson is an attorney at Hamre, Rodriguez, Ostrander & Dingess, P.C. in Denver. He is also a judge on the Custer County Court. Since 1997, he has also operated his own practice in Westcliffe, Colorado, where he emphasizes civil litigation, mechanics’ liens and construction defects, business law, real property law, and probate matters. Mr. Michaelson is licensed to practice law in Colorado, Minnesota, the U.S. District of Colorado, and the U.S. Supreme Court. He became a Deputy District Attorney in 1984 and was elected District Attorney for the Fifth Judicial District in 1988, where was reelected twice.

For more information about the appointments, click here.

Tenth Circuit: Unpublished Opinions, 12/1/2015

On Tuesday, December 1, 2015, the Tenth Circuit Court of Appeals issued one published opinion and two unpublished opinions.

Murrell v. Dowling

United States v. Henson

Case summaries are not provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.