July 17, 2019

Archives for November 17, 2016

Retirement Reception for Hon. Howard Tallman of U.S. Bankruptcy Court on December 1

You are cordially invited to
a retirement reception



United States Bankruptcy Court for the District of Colorado

Thursday, December 1, 2016

The Marriott Denver City Center
1701 California Street, Downtown Denver

5:30 – 8:00 p.m.

Complimentary hors d’oeuvres and a cash bar will be provided.

 This event is proudly co-sponsored with the Bankruptcy Subsection of the Colorado Bar Association.

After an already impressive legal career and service as the U.S. Trustee for Region 19, Judge Tallman was appointed to the United States Bankruptcy Court for the District of Colorado in 2002 and served as Chief Judge from 2007 to 2014.  Judge Tallman will officially retire on Tuesday, January 3, 2017.

We hope you will join us for this retirement reception to honor Judge Tallman for his exemplary judicial service during his tenure with the U.S. Bankruptcy Court and his contributions to the practice of law throughout his legal career.

Questions? Click Here to Email Amanda Hoffman.

Tenth Circuit: Isolated Mishap with Execution Does Not Give Rise to Eighth Amendment Violation

The Tenth Circuit Court of Appeals issued its opinion in Estate of Lockett v. Governor Mary Fallin on Tuesday, November 15, 2016.

In 1999, Clayton Lockett kidnapped, raped, sodomized, and shot 19-year-old Stephanie Nieman and then had an accomplice bury her alive. He was found guilty of 19 felonies arising from the incident and was sentenced to death. He was executed in Oklahoma in 2014, using a combination of three drugs—midazolam, vecuronium bromide, and potassium chloride. The doctor and EMT had trouble starting an IV and ultimately inserted the IV into a vein in his groin area. They covered the area with a cloth so that the observers would not see Lockett’s intimate parts. Ten minutes after administering the first drug, midazolam, Lockett was declared unconscious. The executioners then administered the second and third drugs. Unexpectedly, about 15 minutes after the first drug was administered, Lockett began twitching and writhing, tried to rise from the table, uttered some words, and was grimacing in pain. The doctor checked the IV site, which had been covered so as to protect Lockett’s privacy, and discovered the IV had infiltrated so the drugs were not getting to Lockett’s veins. The doctor advised Oklahoma DOC Director Robert Patton that he believed insufficient drugs had entered Lockett’s system to cause his death. The execution was halted 33 minutes after the first drug was administered. However, 43 minutes after administering the first drug, Lockett was pronounced dead.

The Estate of Lockett filed seven claims: (1) “Eighth Amendment violation—Torture,” as to all defendants; (2) “Eighth Amendment—Using Untested Drugs and Human Medical Experimentation,” against all defendants; (3) “Eighth Amendment—Use of Compounded Drugs in Human Medical Experimentation,” against all defendants; (4) “Eighth Amendment—Human Medical Experimentation on Unwilling Prisoners,” against all defendants; (5) “Eighth Amendment—Failure to Train and Supervise,” against Warden Trammell and Director Patton; (6) Fourteenth Amendment—“Failure to Protect State-Created Rights Procedural Due Process Violation,” against all defendants; and (7) “Sixth Amendment Right to Counsel and First Amendment Access to the Court Violation,” against Warden Trammell and Director Patton. Governor Fallin, Director Patton, and Warden Trammell filed a motion to dismiss under F.R.C.P. 12(b)(6), as did Dr. Doe. Both motions asserted qualified immunity among other defenses. The district court granted both motions to dismiss on qualified-immunity grounds and sua sponte dismissed the claims against the other Doe defendants. The district court found the Estate had failed to prove defendants violated clearly established law.

On appeal, the Tenth Circuit evaluated whether the defendants were entitled to qualified immunity, based on whether the Estate asserted facts sufficient to show a violation of a clearly established right. As to Dr. Doe, since he was a private party, the Tenth Circuit also had to find that he was entitled to government qualified immunity. The Tenth Circuit found that he was. A government employee in the same position as Dr. Doe would have been entitled to qualified immunity, and the Tenth Circuit found that Dr. Doe was, too, finding “Dr. Doe is entitled to assert qualified immunity because the purposes of qualified immunity support its application here: carrying out criminal penalties is unquestionably a traditional function of government, exactly the sort of activities that Richardson reasoned qualified immunity was meant to protect.”

Turning to the Estate’s claims, the Tenth Circuit first addressed its claims of torture and deliberate indifference. The Tenth Circuit noted a single reference in the torture claim to “deliberate indifference,” although there were several references to torture. Although the Tenth Circuit would generally find that the deliberate indifference claim was waived, it addressed the claim because Appellees suffered no prejudice from the claim. The Tenth Circuit noted a deficiency in that the Estate did not account for how cruel and unusual punishment claims operate in the death penalty context. Because the Supreme Court has found capital punishment constitutional, and some pain and suffering is inherent in capital punishment, there must be an additional showing of torture or needless addition of pain in order for an Eighth Amendment violation to stand. The Tenth Circuit noted that the Supreme Court’s death penalty opinions recognize that executions can go awry, and that an isolated mishap will not rise to the level of an Eighth Amendment violation. The Tenth Circuit found that Lockett’s infiltrated vein, coupled with the unusual difficulty securing an IV site, constituted precisely the sort of “isolated mishap” contemplated by the Supreme Court. Although the infiltrated IV could have been discovered sooner had the IV site not been covered, the covering was done to protect Lockett’s privacy, not in an attempt to cause pain and suffering.

The Estate also asked the Tenth Circuit to take judicial notice of news articles about Lockett’s botched execution, as well as Justice Sotomayor’s dissent in Glossip v. Gross, in which she discussed Lockett’s execution. The Tenth Circuit declined to take judicial notice of the news articles or the dissent. The Circuit found it inappropriate to take judicial notice of the opinions contained in the news articles, noting that judicial notice is reserved for facts beyond debate. The Tenth Circuit also declined to take judicial notice of Justice Sotomayor’s dissent, because it may only take judicial notice of the fact of the opinion and not its contents.

The Estate also claimed that the defendants violated Lockett’s Eighth Amendment rights by being deliberately indifferent to his serious medical need to die as quickly as possible. The Tenth Circuit noted that, at the same time, the Estate acknowledged that the EMT and doctor had difficulty placing an IV, and did not have alternative veinous access. The Estate argued that the appellees had no plan to respond to or prevent Lockett from suffering a prolonged death. The Tenth Circuit did not find deliberate indifference on the part of the appellees. The Tenth Circuit affirmed the district court’s decision that there was no violation of a clearly established right. The Tenth Circuit further found the appellees violated no clearly established law despite Lockett suffering pain during his execution. The IV infiltration was an “isolated mishap,” not something designed to cause additional pain. The Tenth Circuit noted that Oklahoma has changed its execution procedures to conform to the Supreme Court’s approved procedure in Baze, so the situation is unlikely to arise again in another execution.

The Tenth Circuit next addressed the Estate’s claims that Defendants Patton and Trammell failed to promulgate policies that would prevent Lockett’s execution from violating the Eighth Amendment. The Tenth Circuit found that the Estate’s reliance on the requirements enumerated in Baze was misplaced; because some of the procedural safeguards were in place, and because Oklahoma adopted more procedural safeguards after Lockett’s execution, the Tenth Circuit found no error. The Tenth Circuit noted that the Estate’s claims contained only a high level of generality, which was impermissible.

The Tenth Circuit also dismissed the Estate’s aggregation claim. Because the Estate did not set forth clearly established law to support its aggregation claim, the Tenth Circuit dismissed it. The Tenth Circuit also found no procedural due process violation because Lockett had an opportunity to challenge the drug protocol and failed to do so. Similarly, the Tenth Circuit found that Lockett had no right to counsel during the execution.

The Tenth Circuit affirmed the district court. Judge Moritz wrote a separate concurrence; she would have declined to reach the constitutional issues as to any of the Estate’s questions.

Tenth Circuit: Denial of Sentence Reduction Appropriate Where Not “Based On” Guidelines Range

The Tenth Circuit Court of Appeals issued its opinion in United States v. Gilmore on Tuesday, November 15, 2016.

Jeremy Gilmore was convicted of conspiracy to distribute and possession with intent to distribute methamphetamine in 2009. Due to his two prior drug felonies, Gilmore received a mandatory life sentence. After the Tenth Circuit affirmed his conviction, Gilmore filed a motion to vacate under 28 U.S.C. § 2255, claiming his trial counsel was ineffective. The district court granted his motion, but instead of setting aside the conviction it ordered the parties to meet and confer regarding an appropriate remedy. The two parties informed the court at a later status conference that a 168 month sentence would be fair, based on the reduction in offense level Gilmore could have received if his counsel were effective. The parties reduced their agreement to writing, wherein Gilmore agreed to knowingly admit committing one count of conspiracy, for which he had already been sentenced, in exchange for the government’s agreement not to file additional charges against Gilmore. The agreement did not specifically reference any Guidelines range. The court accepted the agreement, agreed to be bound by it, and resentenced Gilmore to 168 months’ imprisonment.

Almost two years later, Gilmore filed a motion to reduce his sentence pursuant to Amendment 782, which reduced the Guidelines ranges for various offenses. Gilmore argued that his sentence mirrored the low end of a Guidelines range based on a total offense level of 32 and a criminal history level of IV, and was thus “based on” a Guidelines range. The district court dismissed Gilmore’s motion, finding it lacked jurisdiction to reduce his sentence since it was based on the agreement of the parties and not a particular Guidelines range. Gilmore appealed.

The Tenth Circuit addressed Gilmore’s argument that the district court erred in concluding it lacked authority to modify his sentence. The Tenth Circuit found Justice Sotomayor’s concurrence in Freeman v. United States, 564 U.S. 522 (2011), compelling. Justice Sotomayor suggested that when a plea agreement is “based on” a Guidelines range that is subsequently amended, the defendant is entitled to use the amendment, but when the plea does not “use” or “employ” a particular Guidelines range, the amendment is inapplicable. The Tenth Circuit agreed with this reasoning, and found that because the sentencing agreement was not “based on” a specified Guidelines range, the amendment was inapplicable to Gilmore.

The district court was affirmed.

Tenth Circuit: Unpublished Opinions, 11/16/2016

On Wednesday, November 16, 2016, the Tenth Circuit Court of Appeals issued one published and one unpublished opinion.

United States v. Roberson

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