June 18, 2019

Tenth Circuit: Constitutional Claims Impermissible in Sentence Reduction Hearing

The Tenth Circuit Court of Appeals issued its opinion in United States v. Gay on Wednesday, November 12, 2014.

In 1998, Alondo Gay was indicted on eight counts, including having distributed 245.3 grams of cocaine base. He pled guilty to that charge in exchange for dismissal of the remaining charges. The probation office prepared a presentence report using the 1998 sentencing guidelines, which held Mr. Gay accountable for 9,636.88 grams of cocaine base. He qualified for a base offense level of 38. The final PSR added four additional levels for a total offense level of 42. Initially, Mr. Gay objected to several factual findings in the PSR, but withdrew his factual objections at the sentencing hearing for a 3-level reduction. His guidelines sentencing range was 262 to 327 months’ imprisonment, and he was sentenced to 262 months.

In 2007, the Sentencing Commission adopted Amendment 706, which reduced the sentencing disparity between cocaine base and cocaine powder from a 100:1 ratio to a 33:1 ratio. In 2008, Amendment 706 was made retroactively applicable. Then, in August 2010, Congress enacted the Fair Sentencing Act, which further reduced the sentencing disparity ratio to 18:1. The Sentencing Commission adopted another retroactive amendment in response to the Fair Sentencing Act, which reduced the offense levels for offenses involving between 2.8 and 8.4 kg of cocaine base from 38 to 36.

In light of the sentencing changes, Mr. Gay filed a motion under § 3582(c)(2) to reduce his sentence. The district court denied his motion, finding him ineligible for relief because his sentence was based on a greater quantity of cocaine base than was affected by the amendments. Mr. Gay appealed, contending the application of his sentence under the 100:1 ratio violated his Fifth Amendment Due Process rights, and that the length of his sentence violated the Eighth Amendment’s prohibition against cruel and unusual punishment.

The Tenth Circuit characterized his appeal as an impermissible attempt to collaterally attack his sentence. The only relief allowed in a § 3582(c)(2) proceeding is sentence modification, not argument of constitutional claims. Mr. Gay should have raised his constitutional arguments in direct appeal. The Tenth Circuit conducted a plain error review and found none. Mr. Gay’s sentence was affirmed.

Tenth Circuit: Plaintiff Denied Due Process When Not Allowed Hearing on Allegations of Sexual Harassment

The Tenth Circuit Court of Appeals issued its opinion in McDonald v. Wise on Tuesday, October 28, 2014.

Wayne McDonald was a Special Assistant to Denver Mayor Michael Hancock in 2011 and 2012. He was appointed by the mayor to serve “at the pleasure of the Special Assistant,” and in his official duties, he worked closely with Denver police officer Leslie Wise, who provided security to the mayor. He communicated with Ms. Wise on and off duty, discussing both work-related and personal matters. Between September 2011 and March 2012, Ms. Wise called Mr. McDonald at least 41 times on his personal phone, with calls as early as 6:26 a.m. and as late as 7:39 p.m. On November 3, 2011, unbeknownst to Mr. McDonald, Ms. Wise recorded two of these calls. At least 3/4 of the calls from Ms. Wise to Mr. McDonald occurred after November 3, 2011. She also gave him a Christmas gift, attended church with him, and met his family. They last spoke on March 14, 2012, when Ms. Wise telephoned Mr. McDonald.

On May 18, 2012, the mayor’s deputy chief of staff and the city attorney informed Mr. McDonald that Ms. Wise had accused him of sexual harassment and produced the two recorded phone calls from November 3, 2011. Mr. McDonald denied the allegations and agreed to participate fully in an investigation. He left the meeting with the understanding that he was suspended pending the outcome of an investigation and hearing. At a subsequent meeting on May 21, Mr. McDonald was told he could either resign or be fired due to the allegations. Mr. McDonald requested an investigation and opportunity to defend himself, but was fired on the spot. The mayor and his staff subsequently informed the news media that Mr. McDonald was fired for sexual harassment. Mr. McDonald applied for unemployment compensation benefits, but was denied based on his termination for sexual harassment. He appealed to the Colorado Department of Labor, and the hearing officer determined Mr. McDonald was not responsible for the separation from employment. Mr. McDonald has not been able to find subsequent employment, and has been told by potential employers that his termination for sexual harassment is the reason. He brought suit against the city, the mayor, and the mayor’s press secretary for due process violations, breach of contract, and unlawful disclosure of confidential information. He sued Ms. Wise for defamation. The district court rejected all of his claims, and this appeal followed.

The Tenth Circuit first addressed Mr. McDonald’s claims that he was deprived due process of the law for both property and liberty interests. The Tenth Circuit found that Mr. McDonald did not have a property interest in his continued employment, because he served at the pleasure of the mayor and as such was an at-will employee. He could not have had a property interest in continued employment because of his at-will status, and the district court correctly dismissed this claim. The Tenth Circuit reached a different outcome as to Mr. McDonald’s liberty interest in his good name and continued employment. The mayor said at a press conference that Mr. McDonald was terminated for sexual harassment, not because of allegations, thus effectively affirming the allegations in a public forum. The statements called Mr. McDonald’s good name into question, and Mr. McDonald has been unable to secure further employment due to the statements. The Tenth Circuit determined that Mr. McDonald’s liberty interest was infringed upon, and next turned to the question of whether he had a chance to clear his name at a proper name-clearing hearing. Because Mr. McDonald received no hearing at all on this issue, the Tenth Circuit found a serious deprivation of due process related to his protected liberty interest, and reversed the district court. However, the Tenth Circuit found that the mayor’s press secretary need not be named in her official capacity in the suit, since the mayor and the city were named. On remand, the proper parties for this issue are solely the mayor and the city.

Mr. McDonald also contended that his termination was a breach of his employment contract with the city. The Tenth Circuit disagreed, finding as above that his employment was at will, and his claim is not one for which relief can be granted. The Tenth Circuit likewise disposed of his claim regarding non-disclosure of personnel records under the Colorado Open Records Act, because there is no private right of action under CORA and he did not allege sufficient reason to amend his complaint.

Finally, the Tenth Circuit turned to Mr. McDonald’s defamation claim against Ms. Wise. The district court dismissed his defamation claim, finding qualified immunity for Ms. Wise, and that even if she were not immune, Mr. McDonald failed to allege a viable defamation claim. The Tenth Circuit disagreed with the trial court’s reasoning, finding instead that Ms. Wise was not entitled to qualified immunity since her actions were willful and wanton. Mr. McDonald’s complaint alleged sufficient facts to support an inference of willful and wanton conduct, including the numerous phone calls made to him by Ms. Wise after the date of the alleged sexual harassment, and he was entitled to a trial on the merits. As to the defamation claim, the Tenth Circuit found that Ms. Wise held no qualified privilege since she made the allegedly defamatory statements with actual malice, and the district court erred by concluding Ms. Wise was immune from liability.

The Tenth Circuit affirmed the district court’s dismissal of Mr. McDonald’s property interest due process claim, breach of employment contract claim, and CORA violation claim. The Tenth Circuit reversed the district court’s dismissal of Mr. McDonald’s liberty interest due process claim and defamation claim against Ms. Wise, and remanded for further proceedings.

Colorado Court of Appeals: Deported Defendant’s Appeal Not Moot Where He is Not Barred from Reentry

The Colorado Court of Appeals issued its opinion in People v. Calderon on Thursday, October 23, 2014.

Probation Revocation—Due Process.

In 2012, defendant pleaded guilty to attempted first-degree trespass of an automobile with the intent to commit a crime. He was sentenced to two years of intensive supervised probation, with ninety days in jail.

A few months later, defendant’s probation officer filed a probation revocation complaint. At the revocation hearing, the officer testified she had never met with defendant because he had been released to jail directly into the custody of Immigration Customs Enforcement (ICE). The district court found that defendant had violated the terms of his probation and resentenced him to two years of intensive supervised probation. Defendant filed a motion for reconsideration, which was denied.

On appeal, defendant argued that his due process rights were violated when his probation was revoked based on a violation of a condition of probation. He claimed he did not receive either notice of the probation conditions when he was sentenced to probation, or written notice of those conditions in the revocation complaint. It was undisputed that defendant did not receive written notice of his probation conditions, and there was no evidence that defendant had actual notice of the probation conditions. Therefore, the Court of Appeals reversed the order revoking probation.

The Court further held that defendant was deprived of his due process right to written notice in the revocation complaint of the condition of probation he allegedly violated. Defendant had a due process right and a statutory right to such notice. The orders were reversed and the case was remanded to the district court to reinstate defendant’s original sentence to probation.

Summary and full case available here, courtesy of The Colorado Lawyer.

Tenth Circuit: Utah’s Ban on Same-Sex Marriage and Refusal to Recognize Same Is Unconstitutional

The Tenth Circuit Court of Appeals issued its opinion in Kitchen v. Herbert on Wednesday, June 25, 2014.

In 2004, Utah legislators and citizens amended their statutes and state constitution (collectively referred to in the opinion as Amendment 3) to ensure that Utah “‘will not recognize, enforce, or give legal effect to any law’ that provides ‘substantially equivalent’ benefits to a marriage between two persons of the same sex as are allowed for two persons of the opposite sex.” Three same-sex couples filed suit under 42 U.S.C. § 1983 against the Governor and Attorney General of Utah, and the Clerk of Salt Lake County, challenging the constitutionality of the two statutes and the constitutional provision. The plaintiffs sought a declaratory judgment that Amendment 3 is unconstitutional and an injunction prohibiting its enforcement.

The district court granted summary judgment for the plaintiffs, holding that the statutes and amendment violated the fundamental right to liberty and denied plaintiffs equal protection because it classified based on sex and sexual orientation without a rational basis. The court permanently enjoined enforcement of the provisions. The U.S. Supreme Court stayed the district court’s decision pending appeal to the Tenth Circuit.

The Tenth Circuit first considered the issue of standing because the Salt Lake County Clerk had not appealed the district court’s decision. The court held that because the governor and attorney general have actual supervisory power to compel county clerks to comply with Amendment 3, they had standing to appeal.

Next, the court held that the Supreme Court’s 1972 summary dismissal of Baker v. Nelson was not controlling precedent, especially after United States v. Windsor. In Baker, the Court dismissed, for lack of a substantial federal question, the appeal of a decision affirming Minnesota’s ban on same-sex marriage. Judge Kelly dissented from the portions of this decision regarding Baker v. Nelson and holding that the Fourteenth Amendment requires Utah to permit same-sex marriage and to recognize same-sex marriages entered into in other states.

In holding that the right to marry is a fundamental liberty interest, the court rejected the arguments that only opposite-sex marriage is a fundamental right and marriage is only a fundamental right because of procreation. The court also rejected the argument that the definition of marriage by its nature excludes same-sex couples. In describing a liberty interest, “it is impermissible to focus on the identity or class-membership of the individual exercising the right.” Fundamental rights do not change based on who is seeking to exercise them.

After deciding that the right to marry is a fundamental liberty, the court applied strict scrutiny to Amendment 3. The appellants contended Amendment 3 “furthers the state’s interests in: (1) “fostering a child-centric marriage culture that encourages parents to subordinate their own interests to the needs of their children”; (2) “children being raised by their biological mothers and fathers—or at least by a married mother and father—in a stable home”; (3) “ensuring adequate reproduction”; and (4) “accommodating religious freedom and reducing the potential for civic strife.” The court found Amendment 3 was not narrowly tailored to further the first three interests as the state permitted marriage by many nonprocreative couples. It noted these same arguments were rejected in Windsor. As to the fourth alleged interest, the court pointed out that public opposition cannot provide cover for a violation of fundamental rights.

The Tenth Circuit held that “under the Due Process and Equal Protection Clauses of the United States Constitution, those who wish to marry a person of the same sex are entitled to exercise the same fundamental right as is recognized for persons who wish to marry a person of the opposite sex, and that Amendment 3 and similar statutory enactments do not withstand constitutional scrutiny. . . . A state may not deny the issuance of a marriage license to two persons, or refuse to recognize their marriage, based solely upon the sex of the persons in the marriage union.”

The court affirmed the district court and stayed its mandate pending the disposition of any petition for writ of certiorari.

Colorado Supreme Court: No Due Process Requirement for Crim. P. 11 Advisement When Defendant Statutorily Waives Right to Advisement

The Colorado Supreme Court issued its opinion in Finney v. People on Tuesday, May 27, 2014.

Criminal Law—Sentencing and Punishment—Alternative Dispositions—Pre-Sentence Penalty Advisements at Revocation Hearings.

CRS § 16-11-206 requires a court to advise a probationer, at or before a hearing on a revocation complaint, of the possible penalties he or she may face. Here, the Supreme Court considered whether, to satisfy due process, Crim.P. 11(b) independently requires such an advisement. The record demonstrates that defendant waived his statutory right to a penalty advisement under CRS § 16-11-206. The Court concluded that, even if defendant had not waived his statutory right to an advisement, the requirement of CRS § 16-11-206 was met here because defendant was advised on several occasions of the potential penalties he faced. The Court further held that CRS § 16-11-206 does not incorporate Crim.P. 11(b) or otherwise embody a constitutional right to be advised of the possible penalties when a defendant admits to a violation of a deferred judgment agreement. Thus, where, as here, a defendant waives his or her statutory right under CRS § 16-11-206 to a penalty advisement at a revocation hearing, neither Crim.P. 11(b) nor constitutional due process independently requires such an advisement. Accordingly, the Court affirmed the court of appeals’ decision upholding the trial court’s denial of post-conviction relief.

Summary and full case available here.

Colorado Court of Appeals: Defendant Timely Files Motion to Dismiss Even on Day of Trial if Filed Prior to Any Hearing

The Colorado Court of Appeals issued its opinion in People v. Desantiago on Thursday, May 22, 2014.

Speedy Trial—CRS 18-1-405(5)—Motion to Dismiss—Timeliness.

At his arraignment in this case on November 4, 2010, defendant entered a not-guilty plea, and the court set a trial date of April 6, 2011. Because defendant was in federal custody and his presence could not be secured by the prosecution through a writ to federal authorities, defendant did not appear in court for a hearing in this case until July 14, 2011. A new trial date was set for September 7, 2011. Though a motions hearing was held on August 5, 2011, defendant did not then move to dismiss based on the speedy trial statute. However, on August 26, 2011, before the September 7 trial setting, defendant moved to dismiss the charges against him, asserting violation of his statutory speedy trial right, which was denied by the court as untimely filed.

On appeal, defendant contended that the trial court should have granted his motion to dismiss for violation of his statutory right to speedy trial. Under Colorado’s speedy trial statute, if a defendant has not been brought to trial within six months from the date of entry of a plea of not guilty, charges against him or her must be dismissed with prejudice. Under the plain meaning of CRS § 18-1-405(5), a defendant timely files a motion to dismiss even if it is filed on the day of trial, as long as it is filed before any hearing on any pretrial motion that is set for hearing on that date. Therefore, defendant’s motion to dismiss was timely filed. However, the trial court’s findings were insufficient to determine whether dismissal of the case was warranted on speedy trial grounds with regard to whether the prosecution made diligent efforts to secure defendant’s presence. Accordingly, the case was remanded to the trial court for the limited purpose of having the court make findings of fact and conclusions of law on that issue.

Summary and full case available here.

Tenth Circuit: Grant of New Trial Reversed Because Undisclosed Evidence Immaterial Under Brady

The Tenth Circuit Court of Appeals published its opinion in United States v. Reese on Wednesday, March 19, 2014.

Rick Reese owned a federally licensed firearms store and ran it with his wife, Terri, and two sons, Ryin and Remington. In August 2012, a jury convicted Rick, Terri, and Ryin under 18 U.S.C. §§ 2 and 924(a)(1)(A) for aiding and abetting straw purchases of firearms from the store. Unbeknownst to them, however, at the time of trial the FBI was investigating one of the government’s witnesses, Deputy Batts, for his alleged involvement in various criminal activities. Arguing that the government’s failure to disclose that information before trial violated Brady v. Maryland, Defendants filed a motion for a new trial. The district court concluded that the government had withheld favorable, material evidence from Defendants and granted their motion. The government appealed.

Before reaching the merits of the appeal, the Tenth Circuit clarified that de novo is the standard of review of a district court’s ruling on a Brady claim asserted in the context of a new-trial motion. It also clarified that the test for materiality of withheld evidence does not change based on whether the government withheld it negligently or intentionally.

The court focused on the materiality element of the Brady claim and concluded that the Deputy Batts investigation was immaterial because there was not a reasonable probability that the outcome of Defendants’ trial would have been different had the government disclosed the investigation. The government’s evidence on the counts of conviction was sufficiently strong that the court was confident in the jury’s verdict. The court rejected Defendants’ arguments that Deputy Batts was a critical witness or that this was a close case and reversed the district court.

Tenth Circuit: In Sexual Harassment Case, Summary Judgment For County and Judge Affirmed in Part and Reversed in Part

The Tenth Circuit Court of Appeals published its opinion in Eisenhour v. Weber County on Wednesday, March 12, 2014.

Marcia Eisenhour worked for Weber County for 24 years, serving as the Court Administrator for the Weber County Justice Court under the direct supervision of Judge Storey. According to Ms. Eisenhour, Judge Storey began acting inappropriately toward Ms. Eisenhour in early 2008. He became “touchy” and would often stand so close to her that his groin rubbed against her. In addition to the touching, Judge Storey once told her that he had a dream about her in which she was naked. Ms. Eisenhour also found a poem by Judge Storey, which revealed his romantic feelings for her. According to Ms. Eisenhour, she was also subjected to unreasonable demands about her activities away from work.

The County launched an investigation, but ultimately decided not to discipline Judge Storey. The matter was later referred to Utah’s Judicial Conduct Commission, which the Commission dismissed.

Between August and December 2009, the County Commissioners closed the Justice Court, which meant the loss of Ms. Eisenhour’s job. Ms. Eisenhour applied to the County for three vacant positions. Unsuccessful, she lost not only her job but also the potential for retirement benefits. She eventually spoke to the media about the Judicial Conduct Commission’s investigation of Judge Storey.

Marcia Eisenhour sued Weber County, three of its county commissioners, and Judge Storey. She claimed violations of Utah’s Whistleblower Act, the First Amendment, the Fourteenth Amendment’s Due Process and Equal Protection Clauses, and Title VII. The district court granted summary judgment to the defendants on all claims. Ms. Eisenhour appealed.

Ms. Eisenhour first challenged the district court’s exclusion of her testimony on disciplinary proceedings involving the judge. The Tenth Circuit affirmed. The exclusion of Ms. Eisenhour’s testimony during the disciplinary proceedings involving Judge Storey was proper, since, under the applicable Utah statute, section 78A-11-112(1), testimony taken during the course of proceedings before the Judicial Conduct Commission cannot be introduced in a civil action.

Ms. Eisenhour asserted a claim under Title VII for retaliation. The district court held that it lacked jurisdiction over the claim because Ms. Eisenhour failed to exhaust administrative remedies. The Tenth Circuit agreed. Ms. Eisenhour filed an EEOC claim for sexual harassment, but this claim did not refer to any of the retaliatory acts underlying the eventual cause of action under Title VII. As a result, the court affirmed the award of summary judgment to the County on the Title VII retaliation claim.

Next, Ms. Eisenhour invoked the First Amendment, claiming that the County retaliated against her by closing the Justice Court when she spoke to the media about the Judicial Conduct Commission’s investigation of Judge Storey. The Tenth Circuit held that triable issues of fact existed and that the district court erred in granting summary judgment to the County. When the court is faced with a First Amendment claim by a public employee, the district court must balance the First Amendment interests of that employee, speaking as a concerned citizen, with the government’s interests in promoting the efficiency of the public services it performs through its employees. The Tenth Circuit held that her comments to the media involved protected speech and that she presented sufficient evidence for a reasonable fact-finder to infer that her comments were a motivating factor in the County’s decision to close the Court. The evidence also created a genuine issue of fact about the legitimacy of the County’s explanation for closing the Justice Court.

On the First Amendment claim for retaliation, Ms. Eisenhour also sued three county commissioners in their personal capacities. This claim was based on the Commissioners’ decision to close the Justice Court. Their motivation, according to Ms. Eisenhour, was to retaliate for her comments to the media. Like the County, the Commissioners argued that Ms. Eisenhour’s speech was not protected under the First Amendment and that the County closed the courthouse because of budgetary considerations rather than a retaliatory motive. As discussed above, these arguments involved factual issues turning on the resolution of conflicting evidence, thereby preventing summary judgment for the County.

Ms. Eisenhour further alleged that the County violated Utah’s Whistleblower Act, which prohibits government employers from retaliating against employees who report employer misconduct. According to Ms. Eisenhour, the County violated the state law by closing the Justice Court and refusing to hire her. Ms. Eisenhour waited more than 180 days from the alleged violation to assert a Whistleblower Act claim, so this claim was time-barred. However, for her claim relating to the closing of the court, the claim did relate back to the original filing, so it was not time-barred.

Ms. Eisenhour argued that the County deprived her of a property interest in her job without due process of law. The district court held that Ms. Eisenhour had failed to establish a protected property interest. The Tenth Circuit agreed. For purposes of the Fourteenth Amendment’s Due Process Clause, property interests must derive from some independent source, such as state law, contract, or other understandings that give rise to a claim of entitlement. However, her employment was at-will. And at-will employees lack a property interest in continued employment.

Ms. Eisenhour asserted that the County violated her right to equal protection, and the district court granted summary judgment to the County on the ground that Judge Storey was not an official policymaker. The Tenth Circuit agreed with the district court’s decision. A municipality can be liable under Section 1983 for the acts of a municipal official only when the official possesses final policymaking authority to establish municipal policy with respect to the acts in question.

Judge Storey lacked policymaking authority to touch Ms. Eisenhour inappropriately under the County’s sexual harassment policy. Further, his monitoring of her whereabouts (when missing work) did not violate the Equal Protection Clause. As a result, the County was entitled to summary judgment on the equal-protection claim.

Ms. Eisenhour further asserted an equal-protection claim against Judge Storey. The district court concluded that Judge Storey was entitled to qualified immunity. The Tenth Circuit reversed the district court’s grant of summary judgment to Judge Storey, concluding that he was not entitled to qualified immunity and that there was a fact-issue about whether Judge Storey inappropriately touched Ms. Eisenhour.

To overcome a defense of qualified immunity, a plaintiff must show that: (1) the defendant’s conduct violated the law, and (2) the law was clearly established when the violation occurred. The Tenth Circuit held that Ms. Eisenhour made the threshold showing and that issues of fact precluded summary judgment.

For the reasons stated above, the Tenth Circuit affirmed the award of summary judgment on Ms. Eisenhour’s claims against the County under the: (1) Whistleblower Act for a refusal to rehire her, (2) Title VII, and (3) § 1983 based on a deprivation of due process and denial of equal protection. The court also held that the district court properly excluded Ms. Eisenhour’s testimony taken during the judicial-misconduct investigation. But the court agreed with Ms. Eisenhour that genuine issues of fact precluded summary judgment on: (1) her § 1983 claim against the County and the County Commissioners based on the First Amendment, (2) the Whistleblower Act claim against the County based on the court closing, and (3) the § 1983 claim against Judge Storey based on the Fourteenth Amendment’s Equal Protection Clause.

Accordingly, the case was REMANDED to the district court with instructions to VACATE the award of summary judgment on these claims.


Defendant Craig Storey requested rehearing, arguing in part: (1) The panel opinion erroneously relied in part on sworn testimony before the Judicial Conduct Commission even though the testimony was deemed inadmissible; and (2) the evidence did not support Ms. Eisenhour’s claim that Defendant Storey knowingly and intentionally committed sexual harassment by telling her about a dream. On these issues, Defendant Storey also requested en banc consideration. In addition, he sought en banc consideration on the issue of qualified immunity.

The panel granted rehearing on the first issue, which involved reliance on the Commission testimony by Ms. Eisenhour. The remainder of the petition for panel rehearing was denied. In light of the partial grant of the petition, however, the panel vacated the opinion issued on December 31, 2013. The clerk was directed to substitute the amended decision above and to file it contemporaneously with this order.

Colorado Court of Appeals: No Liberty Interest Violation for Juvenile Tried Under Former Direct File Statute

The Colorado Court of Appeals issued its opinion in People v. Perez-Hernandez on Thursday, December 5, 2013.

Juvenile—Burglary—Theft—Direct File Statute—Jurisdiction—Information—Unanimous Verdict Instruction.

Defendant appealed the judgment of conviction entered on a jury verdict finding him guilty of burglary, theft, conspiracy, and possession of burglary tools. The judgment was affirmed.

The district attorney filed a delinquency petition in juvenile court against defendant, who was 17 years old. She later filed an information in district court, and the juvenile court dismissed the delinquency petition thereafter.

On appeal, defendant contended that the former direct file statute is unconstitutional on its face and as applied to him because it subjected him to adult criminal prosecution without notice and an opportunity to be heard, in violation of his state and federal rights to due process. Under the former direct file statute, the General Assembly established circumstances in which juvenile defendants did not have a liberty interest in being tried as juveniles. Accordingly, the former jurisdictional and direct file statutes did not vest defendant with a liberty interest in being tried as a juvenile. Therefore, due process did not require that defendant be notified and given an opportunity to be heard before the district attorney direct filed in district court.

Defendant also argued that the district court did not have jurisdiction because the information did not allege the basis on which defendant’s juvenile case was “triable” in district court. The information was sufficient to enable it to be understood that the offense was committed within the jurisdiction of the Arapahoe County District Court. The information was not required to also allege that the offense was triable in the district court. Furthermore, the record demonstrates that the district court had jurisdiction based on defendant’s prior record.

Defendant contended that the district court erred when it did not require the prosecution to elect which act supported the charge of possession of burglary tools and did not give a unanimity instruction. Defendant was charged with possession of burglary tools on one occasion related to one burglary. The evidence included items that were in defendant’s possession during this single transaction. The prosecution is not required to specify which acts serve as the basis for the offense when the acts occurred in a single transaction. Similarly, a unanimity instruction is not required when a defendant is charged with a crime encompassing incidents occurring in a single transaction. Accordingly, neither an election nor a unanimity instruction was required here.

Summary and full case available here.

Tenth Circuit: In Conviction of First Degree Murder of a Child, Sentence of Death Affirmed

The Tenth Circuit Court of Appeals published its opinion in Cole v. Trammell on Monday, November 18, 2013.

On the evening of December 20, 2002, Benjamin Cole caused fatal injuries to his nine-month-old daughter Brianna. An autopsy revealed that Brianna’s spine had been snapped in half, and her aorta had been completely torn through due to non-accidental stretching.

Cole was charged in the District Court of Rogers County, Oklahoma, with one count of first degree murder of a child. The State also filed a bill of particulars alleging the existence of three aggravating circumstances: (1) Cole was previously convicted of a felony involving the use or threat of violence to the person; (2) the murder was especially heinous, atrocious or cruel; and (3) the existence of a probability that Cole would commit criminal acts of violence that would constitute a continuing threat to society.

The case proceeded to trial. At the conclusion of the first stage evidence, the jury found Cole guilty of first degree murder. At the conclusion of the second-stage evidence, the jury found the existence of two of the three aggravating factors alleged in the bill of particulars — the murder was especially heinous, atrocious or cruel, and that Cole had been previously convicted of a felony involving the use or threat of violence to the person — and fixed Cole’s punishment at death.

Cole initiated these federal habeas proceedings. The district court issued an opinion and order denying Cole’s petition, but granting him a certificate of appealability (COA) with respect to five issues: an alleged breakdown in communications between Cole and his defense counsel; defense counsel’s failure to investigate and present additional mitigating evidence; improper admission of photographs of the victim; sufficiency of the evidence to support the heinous, atrocious or cruel aggravator; and prosecutorial misconduct. The court subsequently expanded the COA to include the issue of cumulative error.

Alleged Breakdown in Communications Between Cole and His Defense Counsel

Cole argued that he “was denied his right to the effective assistance of counsel as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution because there was a complete breakdown in communication between [himself] and his attorneys.”

Two mental health examinations and a jury trial were held to determine Mr. Cole’s competency. The Tenth Circuit held that that Cole’s arguments were insufficient to warrant federal habeas relief under the standards of review outlined in § 2254(d). Although the record on appeal indicated, and the Oklahoma Court of Appeals (OCCA) conceded, that Cole and his defense team had difficulties communicating with each other during the course of the pretrial proceedings, the OCCA found that Cole was partly responsible for these communication difficulties and that, in the end, there was not a complete breakdown in communication such that Cole was denied his right to effective assistance of counsel. And, though Cole disagreed with the OCCA’s finding that he was partly responsible for the communication difficulties, he failed to establish that it was “an unreasonable determination of the facts in light of the evidence presented in the State court proceeding” as required by § 2254(d)(2).

Defense Counsel’s Failure to Investigate and Present Additional Mitigating Evidence

Cole contended that his trial counsel failed to investigate and present mitigation evidence from Cole’s family members that would have “personalized” him to the jury. Consequently, Cole argued, he was deprived of his right to effective assistance of counsel in violation of the United States Constitution. The Tenth Circuit held Cole’s claim of ineffective assistance of trial counsel was procedurally barred for purposes of federal habeas review. Even after an analysis on the merits, the court concluded that Cole was not prejudiced by his trial counsel’s failure to investigate and present the various items of mitigating evidence.

Improper Admission of Photographs of the Victim

Cole argued that he was denied his constitutional rights to due process, a fundamentally fair trial, and a reliable sentencing hearing as a result of the state trial court’s erroneous admission of “gruesome autopsy photographs” during the first-stage proceedings.

Cole pointed to Romano v. Oklahoma, 512 U.S. 1 (1994), as providing the clearly established federal law applicable to this claim. In Romano, the Supreme Court held that “the Due Process Clause of the Fourteenth Amendment . . . applies to the sentencing phase of capital trials.” 512 U.S. at 12. When a defendant claims that the introduction of evidence during the penalty phase of a capital trial violates the Due Process Clause, the relevant question is whether the admission of the challenged evidence so infected the sentencing proceeding with unfairness as to render the jury’s imposition of the death penalty a denial of due process. The court agreed with OCCA that the admission of certain autopsy photographs of the child did not deprive Cole of a fair sentencing proceeding.

Sufficiency of the Evidence to Support the Heinous, Atrocious or Cruel Sentencing Aggravator

Cole argued that his rights under the Eighth and Fourteenth Amendments were violated because the evidence presented during the second-stage proceedings was insufficient to allow the jury to reasonably find that the murder was especially heinous, atrocious or cruel.

Cole argued that the medical examiner’s findings, at most, indicated the possibility that some pain might have been felt by Brianna as the result of the fracture of the spine, but there was no evidence that Brianna was conscious during the time the injury was inflicted; and even if she was, the medical examiner testified that such consciousness would not have lasted any more than thirty seconds. The OCCA rejected Cole’s arguments and agreed with the State’s description that Brianna’s injuries would have been absolutely painful to a nine-month-old child. The Tenth Circuit fully agreed with the OCCA that the medical examiner’s testimony was sufficient to allow a rational trier of fact to find beyond a reasonable doubt that the murder was especially heinous, atrocious or cruel.

Prosecutorial Misconduct

Cole asserted that prosecutorial misconduct in seeking sympathy for the decedent, by way of repeated references to God and religion in both stages of the trial, resulted in violations of his rights under the Eighth and Fourteenth Amendments to the United States Constitution. Cole further asserted that his rights under the First Amendment were also violated by the prosecutorial misconduct. Additionally, Cole asserted that his trial counsel was ineffective for failing to object to the alleged instances of prosecutorial misconduct. According to Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974), prosecutorial misconduct can result in constitutional error if it so infected the trial with unfairness as to make the resulting conviction a denial of due process. The Tenth Circuit held that the prosecutor’s comments, when considered in light of the trial as a whole, did not result in a deprivation of Cole’s due process right to a fair trial and sentencing proceeding.

Cumulative Error

Having reviewed all of the state court records in the case, the court concluded that Cole received a fundamentally fair trial. In other words, even aggregating the constitutional errors alleged by Cole, those errors did not have a substantial and injurious effect or influence on either the jury’s determination of Cole’s guilt or its decision to sentence Cole to death.


Tenth Circuit: Return of Children in Hague Convention Case Affirmed

The Tenth Circuit Court of Appeals published its opinion in West v. Dobrev on Wednesday, October 30, 2013.

Petitioner Livia West and Respondent Stanislav Dobrev were married in the United States and their two children were born here. The family moved to France and after about a year, West filed for divorce. The French court ordered the children to remain in the usual home of West. Dobrev moved back to the United States. The French court gave West permission to move with the children to Belgium for employment and the divorce was finalized.

Two years later, Dobrev took the children to the United States for a vacation but then filed suit in Utah state court for “Emergency Jurisdiction and Custody.” West filed a petition in Utah federal district court for the return of the children under Article 3 of the Hague Convention.

The Utah federal district court, after holding a preliminary hearing, granted Petitioner West’s petition for return of her two minor children to their residence in Belgium, pursuant to the Hague Convention on the Civil Aspects of International Child Abduction and its implementing legislation, The International Child Abduction Remedies Act (ICARA). The district court also awarded Petitioner fees, costs, and expenses.

Respondent Dobrev appealed, claiming a denial of due process based on the district court’s refusal to provide him an evidentiary hearing to challenge its finding that Belgium was the habitual residence of the children under the convention. The Tenth Circuit found that Dobrev never contested whether Belgium was the children’s habitual residence.

The court held that Dobrev failed to meet his burden of establishing by clear and convincing evidence an exception to West’s prima facie case for return of the children under the Convention. Dobrev received a meaningful opportunity to be heard at the preliminary hearing; he was not entitled to a fishing expedition.

The court also found no abuse of discretion in the district court’s award of fees and costs and affirmed the district court in all respects.

Tenth Circuit: Reciprocal Attorney Discipline Upheld

The Tenth Circuit Court of Appeals published its opinion in In re Harper on Wednesday, August 7, 2013.

David Harper is an attorney licensed in Florida and admitted to practice in the Colorado federal district court. After being admitted in Colorado, however, he was suspended for 91 days from practicing law in Florida. This suspension prompted the Colorado federal district court to conduct reciprocal disciplinary proceedings under D.C. COLO. LCvR 83.3(E) and impose its own suspension of 91 days. Harper appealed, arguing that the district court’s reciprocal suspension resulted in a denial of due process, the opportunity to confront adverse witnesses, and the right to free speech.

A federal district court can rely on a state court’s judgment unless an “‘intrinsic consideration of the record’ shows: (1) that due process was lacking in the state procedure because the attorney was denied notice and a fair opportunity to be heard; (2) that there was insufficient proof regarding a lack of private and professional character; or (3) that some other ‘grave reason’ makes reciprocal discipline inconsistent with principles of right and justice.” Harper failed to supply the Tenth Circuit with a transcript of his state court disciplinary proceedings, which would ordinarily be fatal to an appeal. The court found, however, that even if it were to accept Harper’s version of events, there was no constitutional violation.

Harper also asserted that Local Rule 83.5 requires an evidentiary hearing. This argument was rejected by the federal district court as Rule 83.5 does not apply to proceedings based on reciprocal discipline. The Tenth Circuit refused to second guess the district court’s interpretation of its own rules and affirmed.