July 22, 2018

Archives for November 15, 2016

Colorado Judicial Ethics Advisory Board Releases Two New Opinions

On Monday, November 14, 2016, the Colorado Judicial Ethics Advisory Board released two new opinions.

CJEAB Opinion 2016-02 answers a judge’s question regarding whether Opinion 2007-07 remains effective in light of the repeal and reenactment of the Colorado Code of Judicial Conduct, and whether the judge may serve on the board of directors for the Joint Initiatives for Youth and Families of the Pikes Peak Region, since the operation of the board of directors has changed. The Judicial Ethics Advisory Board evaluated Opinion 2007-07 and determined it was no longer applicable, consequently withdrawing the opinion. The Judicial Ethics Advisory Board then concluded that a judge may serve on the board of directors of the Joint Initiatives for Youth and Families of the Pikes Peak Region, even if the board engages in legislative advocacy benefitting children and families, provided that doing so would not lead to his frequent disqualification or otherwise interfere with his ability to perform his judicial duties.  The judge must ensure that his activities as a board member do not undermine his impartiality, give rise to the appearance of impropriety, or violate other provisions of the Code.

CJEAB Opinion 2016-03 answers a judge’s question regarding whether it is permissible for him to sit on the Board of Trustees of the Colorado PERA. The Judicial Ethics Advisory Board determined that a judge elected to sit on the Board of Trustees of Colorado PERA should abstain from participating as a panelist in PERA’s administrative hearing process because such participation constitutes arbitration or another judicial function outside of a judge’s official duties and violates the Code of Judicial Conduct.

For all of the Colorado Judicial Ethics Advisory Board opinions, click here.

Tenth Circuit: Facts Existed to Support District Court’s Denial of Qualified Immunity

The Tenth Circuit Court of Appeals issued its opinion in Durkee v. Minor on Monday, November 14, 2016.

James Durkee was an inmate at the Summit County Corrections Center in Colorado. After being threatened by a notoriously violent inmate, Ricky Michael Ray Ramos, Durkee expressed concern about Ramos’ aggression and a deputy issued an incident report stating that Durkee and Ramos were not allowed to attend any programs together, be in the hallways together or in passing, or be in the booking area together. The report was signed by the jail staff, including Defendant Hochmuth. On December 28, 2012, Plaintiff Durkee was in the jail’s professional visitation room, when Ramos was escorted into the booking area by Hochmuth. Plaintiff saw both Defendant and Ramos, and Ramos saw plaintiff, but Hochmuth reported that he did not see plaintiff despite the large glass window between the rooms. When defendant removed Ramos’ shackles, he ran into the visitation room and attacked plaintiff, leaving him with severe facial fractures.

Plaintiff sued Hochmuth and the Summit County Sheriff, Defendant Minor, in their individual capacities under 42 U.S.C. § 1983 for violations of his Eighth Amendment rights. Both defendants moved for summary judgment based on qualified immunity. The district court denied summary judgment and the defendants appealed.

On appeal, the Tenth Circuit evaluated whether the district court found facts sufficient to support plaintiff’s claim that the defendants violated clearly established law. The Tenth Circuit found that, as to Hochmuth, the plaintiff had to prove sufficient facts that the defendant knew of and disregarded a substantial risk to plaintiff. Hochmuth does not dispute that he knew Ramos posed a substantial risk of harm to plaintiff “generally,” but argued he did not know plaintiff was in the unlocked room adjacent to the booking room. The Tenth Circuit noted that the success of the defendant’s defense may turn on whether the jury finds his testimony credible that he did not see plaintiff in the next room.

As to Minor, the Tenth Circuit did not find facts sufficient to prove that in his individual capacity as the director of the jail he knew of and disregarded a substantial risk of harm to plaintiff. The Tenth Circuit found that plaintiff could not show Minor’s direct personal responsibility for the harm suffered by plaintiff. The Tenth Circuit could not find a policy dilemma, since unshackling inmates in the booking area had not been a problem for anyone prior to the incident with plaintiff.

The Tenth Circuit affirmed in part, reversed in part, and remanded for further proceedings.

Tenth Circuit: Appeal Waiver Precluded District Court Review of Sentence

The Tenth Circuit Court of Appeals issued its opinion in United States v. Amado on Monday, November 14, 2016.

Elias Vega Amado, an illegal immigrant, was caught in 2013 with guns, drugs, money, and other incriminating evidence. He was charged with five counts, and pleaded guilty to possession of methamphetamine and illegal reentry. As part of his plea agreement, he “knowingly and voluntarily waive[d] his right to . . . move to modify under 18 U.S.C. 3582(c)(2) or some other ground, his sentence as imposed by the court[.]” His Guidelines range was 235 to 293 months, and he was sentenced to 240 months.

In 2014, the Sentencing Guidelines were amended, and the base offense levels for drug quantities were lowered, effectively lowering minimum sentences for drug offenses. Under the new Guidelines scheme, Defendant’s Guidelines range would be from 188 to 235 months. Defendant filed a motion under 18 U.S.C. § 3582(c)(2) for sentence reduction, which the government opposed. The district court denied his first motion without explanation. Defendant appealed, but asked that pleadings be held in abeyance because the government reportedly would not oppose another motion for sentence reduction. Defendant filed a second motion for sentence reduction in district court, which the district court again denied, issuing findings as to both motions. The district court opined that defendant’s first motion did not present a close question, given the plea waiver and the seriousness of defendant’s offenses. The district court construed the second motion as a motion to reconsider and held it was untimely filed. Defendant appealed.

On appeal, the Tenth Circuit evaluated defendant’s claim that his appeal waiver was not knowing and intelligent because he did not anticipate the amendment to the Guidelines. The Tenth Circuit was not persuaded. The Tenth Circuit held that it had previously ruled that a defendant’s waiver of unforeseeable future events was both commonplace and enforceable. The Tenth Circuit affirmed the district court’s denial of defendant’s first motion.

Turning to the second motion, the Tenth Circuit found the only problem was that after the district court determined the motion was untimely, it ruled on the motion anyway instead of dismissing it.

The Tenth Circuit affirmed the district court’s decision on defendant’s first motion. As to the second motion, the Tenth Circuit vacated the judgment and remanded with instructions to dismiss it.

Tenth Circuit: Unpublished Opinions, 11/14/2016

On Monday, November 14, 2016, the Tenth Circuit Court of Appeals issued three published opinions and two unpublished opinions.

United States v. Hawley

In re Behrends: Cooley-Linder v. Behrends

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