July 22, 2019

Tenth Circuit: Career Offender Designation Must Be Based on Defendant and Not Hypothetical Worst Possible Offender

The Tenth Circuit Court of Appeals issued its opinion in United States v. Brooks on Monday, June 2, 2014.

Defendant Brooks was sentenced as a career offender under the Federal Sentencing Guidelines based on two prior Kansas offenses. The district court relied on Tenth Circuit precedent in United States v. Hill, 539 F.3d 1213 (10th Cir. 2008), to classify one of defendant’s two prior convictions as a felony because, under Kansas’ peculiar sentencing scheme, it was hypothetically punishable by more than one year in prison, even though defendant’s potential maximum sentence was seven months’ imprisonment and his actual sentence for that offense was six months. Defendant appealed his sentence, arguing that Hill was abrogated by the U.S. Supreme Court’s decision in Carachuri-Rosendo v. Holder, 560 U.S. 563 (2010). The Tenth Circuit agreed.

Kansas’ sentencing scheme has no statutory maximum sentence for offenses. Instead, sentencing is calculated by using a grid that examines the severity of the crime and the offender’s prior history. The Tenth Circuit noted that the language of the U.S. Sentencing Guidelines considers a defendant a “career offender” if defendant has committed two or more prior offenses punishable by imprisonment for more than one year, regardless of defendant’s actual sentences or whether the crimes are classified as felonies. Under the Hill precedent, the Tenth Circuit considered a hypothetical maximum sentence for the worst possible offender in determining whether an offense was to be considered for purposes of the Guidelines’ career offender provisions. However, because of the Supreme Court’s holding in Carachuri-Rosendo, the Tenth Circuit determined that the proper analysis is whether the actual defendant’s offense was punishable by more than one year’s imprisonment, not whether any hypothetical offender could be punished for the same crime with more than one year’s imprisonment. The Tenth Circuit noted that two other circuits had been instructed by the Supreme Court to reconsider holdings similar to Hill in light of its holding in Carachuri-Rosendo, and both circuits reversed their prior decisions, instead basing the career offender determination on the actual defendant’s potential maximum sentence and not the hypothetical maximum for the worst possible offender.

The Tenth Circuit reversed and remanded for resentencing consistent with the Supreme Court’s reasoning in Carachuri-Rosendo.

Surveying Intellectual Property: Predictions for the Supreme Court’s Rulings in 10 IP Cases

HarrisDoughertyBy Ray K. Harris and Thomas Dougherty

There are now ten IP cases under review in the Supreme Court. Why so many? And what will the Court do?

Why So Many IP Cases?

The Supreme Court docket demonstrates the accelerating importance of intellectual property. In the decade of the 1990s the Supreme Court wrote seven patent opinions.[1] The prior two decades saw a similar volume of patent cases. In the same decade, copyright cases decided in the Supreme Court (six)[2] and trademark cases decided in the Supreme Court (three, including two trade dress cases)[3] were about equally rare.

In the decade from 2000 to 2009, the Supreme Court increased the volume to 10 patent related opinions.[4] Total copyright cases (three)[5] and trademark cases (five, including two trade dress cases)[6] decided in the Supreme Court remained about the same.

In 2010 to 2012 the Supreme Court increased the pace to issue four patent opinions in three years.[7] The pace of Supreme Court copyright decisions (two)[8] remained about the same as over the last 20 years. The increase in patent litigation appears not to be aberrational.

Last year the Supreme Court again more than doubled the volume of patent cases handled and issued four patent-related opinions in one year.[9] The Supreme Court also decided one copyright case[10] and one trademark case.[11]

This year the Supreme Court has again increased the volume of patent cases and already has accepted for review six patent cases – more than half the volume it handled in the entire first decade of the 21st Century. The Court has also accepted for review two copyright and two trademark cases.

Why has the Supreme Court accepted review in so many IP cases? Because IP rights have grown in economic importance and clarity is required to maintain that economic value. The Federal Circuit was given exclusive jurisdiction over patent cases to avoid conflicts in treatment among the different Circuit Courts, but clarity (for example, on treatment of software-related inventions) has not uniformly emerged. Also, abusive assertion of IP rights imposes a substantial cost on the economy. Guidance for the Federal Circuit requires either Supreme Court review or Congressional action.

What Will The Court Do?

Here summaries of the issues raised and our humble PREDICTIONS of how these 10 current IP cases may be decided.

Patent. Two patent cases focus on the scope of what a patent may claim.

Alice Corp. Pty Ltd. v. CLS Bank Int’l, 717 F.3d 1269 (Fed. Cir. 2013), cert. granted, 134 S. Ct. 734 (2013) (the test for patentable subject-matter for software inventions). An equally divided court affirmed the District Court holding that the claims were not patent eligible. The Federal Circuit generated seven opinions and could not agree on the appropriate test. NEITHER CAN WE, BUT THE COURT CONTINUES TO DECIDE CASES DEFINING THE LINE BETWEEN INVENTION AND ABSTRACT IDEAS. The court will limit the scope of software patentability, but not eliminate it. SOFTWARE CAN BE PATENTED BUT NOT THESE CLAIMS. AFFIRMED. Watch for oral argument March 31.

Nautilus Inc. v. Biosig Instruments, Inc., 715 F.3d 891 (Fed. Cir. 2013), cert. granted, 134 S. Ct. 896 (2014) (determining when a claim term is indefinite — therefore invalidating the claim) There were multiple reasonable interpretations of the claim language “spaced relationship.” The Federal Circuit concluded the term was not insolubly ambiguous because “inherent parameters” would allow a person of ordinary skill to understand the term. Particular and distinct patent claiming is required by statute. 35 U.S.C. 112. REVERSED. THE COURT WILL REQUIRE TIGHTER CLAIM DRAFTING SO WHAT IS CLAIMED IS DISTINCT FROM WHAT IS NOT CLAIMED AND INFRINGEMENT LIABILITY IS MORE PREDICTABLE. Watch for oral argument April 28.

The remaining 4 patent cases focus on enforcement issues:

Medtronic Inc. v. Boston Scientific Corp., 571 U.S. ___ (Jan. 22, 2014). In a declaratory relief suit by a patent licensee the licensor/patentee always has the burden to prove infringement. REVERSED. WE ARE CERTAIN WE GOT THIS “PREDICTION” CORRECT.

Highmark Inc. v. Allcare Management Systems, Inc., 687 F.3d 1300 (Fed. Cir. 2012), cert. granted, 134 S. Ct. 48 (2013), and Octane Fitness, LLC v. ICON Health & Fitness, Inc., 496 Fed Appx. 57 (Fed. Cir. 2012), cert. granted, 134 S. Ct. 49 (2013) (the standard for awarding attorneys’ fees to the prevailing party). The infringement defendant prevailed in both cases. The Federal Circuit found no deference is owed to a district court’s finding regarding whether allegations of infringement were objectively unreasonable and neither case was “exceptional” under 35 U.S.C. § 285. The prevailing defendants assert (1) the District Court is entitled to deference, and (2) a showing that the litigation is objectively baseless and brought in subjective bad faith sets too high a standard for prevailing defendants (accused infringers) and conflicts with the lower bar set for prevailing plaintiffs (patent owners) — a showing “that the infringer acted despite an objectively high likelihood that its actions constituted infringement of a valid patent.”). THE COURT WILL ELIMINATE THE SUBJECTIVE ELEMENT OF THE REASONABLENESS TEST AND OTHERWISE AFFIRM THE APPELLATE DECISIONS ON THE OBJECTIVE ELEMENT WITHOUT DEFERENCE TO THE TRIAL COURT. This case was argued Feb. 26.

Limelight Networks, Inc. v. Akamai Technologies, Inc., 692 F.3d 1301 (Fed. Cir. 2012), cert. granted, 134 S. Ct. 895 (2014) (inducing infringement where separate elements of the method claim were carried out by different persons, hence there is no one person who directly infringed). The Federal Circuit held there can be inducement liability with no single direct infringer or agency relationship. AFFIRMED. INDUCING MULTIPLE ACTORS TO INFRINGE COLLECTIVELY IS WRONG (ONCE THE ADVERSE PRECEDENT IS NOT CONTROLLING). Watch for oral argument April 30.

Copyright. Both cases deal with defenses to enforcement of copyright protection.

Petrella v. Metro-Goldwyn-Mayer, Inc., 695 F.3d 946 (9th Cir. 2012), cert. granted, 134 S. Ct 50 (2013) (laches as a defense to damages incurred for the three-year period before suit is filed). The Copyright Act has a three-year statute of limitations, 17 U.S.C. 507(b). The Ninth Circuit found claims based on the 1980 film “Raging Bull” barred by laches. The other circuits are less receptive to this defense. AFFIRMED. DAMAGES AND INJUNCTIVE RELIEF ARE BOTH UNAVAILABLE FOR THE CONTINUING TORT ON THE FACTS PRESENTED. This case was argued Jan. 21.

American Broadcasting Companies, Inc. v. Aereo, Inc., 712 F.3d 676 (2nd Cir. 2013), cert. granted, 134 S. Ct. 896 (2014) (streaming a broadcasted video over the Internet so paid subscribers each subscriber receive transmission of a separate copy). The Second Circuit found no infringement of the public performance right. Both parties asked for review. Even the winner below wants to avoid the possibility of inconsistent decisions in other circuits. REVERSED. THE COURT WILL CONCLUDE CONGRESS DID NOT INTEND TO PERMIT THE “RUBE GOLDBERG” DESIGN ADOPTED TO AVOID INFRINGEMENT. STREAMING AND RECORDING ON DEMAND IS A PUBLIC PERFORMANCE. CONGRESS COULD AMEND THE STATUTE IF IT DISAGREES WITH THE COURT (WE ARE NOT ARROGANT ENOUGH TO TRY TO PREDICT CONGRESS — BE SERIOUS). Watch for oral argument April 22.

Trademark. Both cases involve false advertising under the Lanham Act.

POM Wonderful LLC v. Coca-Cola Co., 679 F.3d 1170 (9th Cir. 2012), cert. granted, 134 S. Ct. 895 (2014) (false advertising claims involving the labeling requirements of the Food Drug and Cosmetics Act). The Ninth Circuit found preemption. AFFIRMED. Watch for oral argument April 21.

Lexmark Int’l Inc. v. Static Control Components, Inc., 697 F.3d 387 (6th Cir. 2012), cert. granted, 133 S. Ct. 2766 (2013) (the test for standing to maintain a false advertising claim). The Ninth Circuit requires the plaintiff to be an actual competitor. Other circuits require antitrust standing. The Sixth Circuit and Second Circuit allow the plaintiff to sue if it has a “reasonable interest” in the case. AFFIRMED. THE COURT WILL ADOPT THE REASONABLE INTEREST STANDARD. This case was argued Dec. 3.

Only two of the nine remaining cases reversed. Not a smart bet? “Never tell me the odds.”[12]

Ray K. Harris practices in the area of commercial litigation, including trade secret, trademark, trade dress, computer software copyright, and other intellectual property protection matters. His representation of aerospace clients has included enforcement of patent and trade secret rights and licensing provisions related to IP. Reach Mr. Harris at rharris@fclaw.com.

Thomas A. Dougherty is a registered patent attorney who practices in all areas of intellectual property, and federal appeals. His practice includes international and domestic patent and trademark prosecution; inter partes reexaminations; portfolio management; freedom to operate, medical devices, general counsel services, M&A, and counseling for various clients and technologies. Reach Mr. Dougherty at tdougherty@fclaw.com

The opinions and views expressed by Featured Bloggers on CBA-CLE Legal Connection do not necessarily represent the opinions and views of the Colorado Bar Association, the Denver Bar Association, or CBA-CLE, and should not be construed as such.


[1] Eli Lilly & Co. v. Medtronic Inc., 496 U.S. 661 (1990); Cardinal Chemical Co. v. Morton, 508 U.S. 150 (1993); Asgrow Seed Co. v. Winterboer, 513 U.S. 179 (1995); Markman v. Westview Instruments, Inc., 517 U.S. 370 (1996); Warner-Jenkinson Co, Inc. v. Hilton Davis Chemical Co., 520 U.S. 17 (1997); Pfaff v. Wells Electronics Inc., 525 U.S. 55 (1998); and Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, 527 U.S. 627 (1999). See also Dickinson v. Zurko, 527 U.S. 150 (1999) (administrative burden of proof).

[2] Stewart v. Abend, 495 U.S. 207 (1990), Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340 (1991); Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994); Campbell v. Acuff-Rose Music Inc., 510 U.S. 569 (1994); Feltner v. Columbia Pictures, 523 U.S. 340 (1998); and Quality King Distributors Inc. v. L’anza Research Int’l Inc., 532 U.S. 135 (1998). See also Lotus Dev. Corp. v. Borland Int’l Inc., 116 S. Ct 804 (1996) (aff’d by an equally divided court); Professional Real Estate Investors, Inc. v. Columbia Pictures Industries, Inc., 508 U.S. 49 (1993) (copyright claim was immune from antitrust liability).

[3] Two Pesos v. Taco Cabana, Inc., 505 U.S. 763 (1992); Qualitex v. Jacobson Products Co., Inc., 514 U.S. 159 (1995) and College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board, 527 U.S. 666 (1999).

[4] JEM Ag. Supply Inc. v. Pioneer Hi-Bred Int’l, Inc., 534 U.S. 124 (2001) (patent alternative to plant variety protection act); Festo Corp. v. Shoketsu Kinzoku Kogyo Kubushiki Co., Ltd., 535 U.S. 722 (2002); Holmes Group, Inc. v. Vornado Air Circulation Systems, Inc., 535 U.S. 826 (2002); Merck KGaA v. Integra Lifesciences I, Ltd., 545 U.S. 193 (2005); Illinois Tool Works Inc. v. Independent Ink, Inc., 547 U.S. 28 (2006) (rule of reason antitrust analysis); eBay Inc. v. Merc-Exchange, LLC, 547 U.S. 388 (2006); MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118 (2007); KSR v. Teleflex, Inc., 550 U.S. 398 (2007); Microsoft Corp. v. AT&T Corp, Int’l Co., 550 U.S. 437 (2007); and Quanta Computer Inc. v. LG Electronics, Inc., 553 U.S. 617 (2008).

[5] New York Times Co, Inc. v. Tasini, 533 U.S.483 (2001); Eldred v. Ashcroft, 537 U.S. 186 (2003); and Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913 (2005).

[6] Wal-Mart Stores, Inc. v. Samara Bros., Inc. Co., 529 U.S. 205 (2000); TrafFix Devices, Inc. v. Marketing Displays, Inc., 532 U.S. 23 (2001); Moseley v. V Secret Catalogue, Inc., 537 U.S. 418 (2003); Dastar Corp. v. 20th Century Fox Film Corp., 539 U.S. 23 (2003); and KP Permanent Make-Up Inc. v. Lasting Impression I, Inc., 543 U.S. 111 (2004).

[7] Bilski v. Kappos, 130 S. Ct. 3218 (2010); Global-Tech Appliances, Inc. v. SEB S.A., 131 S. Ct. 2060 (2011); Bd of Trustees of Leland Stanford Jr. Univ. v. Roche Molecular Systems, Inc., 131 S. Ct. 2186 (2011); Microsoft Corp. v. i4i Ltd. Partnership., 131 S. Ct. 2238 (2011); and Mayo Collaborative Services v. Prometheus Laboratories, Inc., 132 S. Ct. 1289 (2012). See also Kappos v. Hyatt, 132 U.S. 1690 (2012) (admissible evidence in administrative proceedings).

[8] Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154 (2010), and Golan v. Holder, 132 S. Ct. 873 (2012). See also Costco Wholesale Corp. v. Omega S.A., 131 S. Ct. 565 (2010) (aff’d by an equally divided court).

[9] Bowman v. Monsanto Co., 133 S. Ct. 1761 (2013); Gunn v. Minton, 133 S. Ct. 1059 (2013) (patent-related jurisdiction); Association for Molecular Pathology v. Myriad Genetics, 133 S. Ct. 2107 (2013); and FTC v. Actavis, Inc., 133 S. Ct. 2223 (2013) (reverse payment patent license antitrust analysis).

[10] Kirtsaeng v. John Wiley & Sons, 133 S. Ct. 1351 (2013).

[11] Already LLC v. Nike Inc., 133 S. Ct. 721 (2013).

[12] Han Solo to C-3PO, Star Wars: The Empire Strikes Back (1980).

Supreme Court Ruling on DOMA Raises More Questions Than it Answers for Colorado Families

By Ann Gushurst and Kristi Wells

On Wednesday, June 26, 2013, the Supreme Court struck down, in a 5-4 decision, Section 3 of the Federal Defense of Marriage Act, known as DOMA, which act defined and recognized marriages only as contracted between a man and a woman.  It did so on the basis that Section 3 of DOMA created a two tiered marriage system under Federal law, under which valid same-sex marriages were denied validity under Federal laws.

The Obama Administration released the following statement after the Supreme Court announced its ruling:

This ruling is a victory for couples who have long fought for equal treatment under the law; for children whose parents’ marriages will now be recognized, rightly, as legitimate; for families that, at long last, will get the respect and protection they deserve; and for friends and supporters who have wanted nothing more than to see their loved ones treated fairly and have worked hard to persuade their nation to change for the better.

This ruling will have interesting repercussions for states like Colorado, which has its own DOMA provision in the Colorado Constitution, although this ruling does not strictly challenge the constitutionality of DOMA in states that have state DOMA provisions.

In Colorado, we have the opposite problem to the DOMA case addressed by the Supreme Court in that Colorado recognizes complete state rights for same sex relationships as civil unions, but denies them the status of marriage.  By doing this, Colorado effectively denies those in same sex relationships from enjoying the benefits of marriage under federal statutes.  The question remains—is Colorado’s similar DOMA provision equally unconstitutional and how (and when) will that issue be addressed?

Until that issue is resolved, Colorado will be the Petri dish for issues that remain unaddressed by this Supreme Court decision.  For example, the Colorado statute recognizing civil unions specifically grants those in civil unions all of the rights of marriage, except that the right to file a joint income tax return is not permitted until federal law is changed to allow those who are not considered legally married to file joint income tax returns.

The Supreme Court’s decision regarding Section 3 of DOMA does nothing to require the federal government to recognize civil unions as equivalent to marriages.  Thus, couples in Colorado civil unions will continue to experience the exact disparate tax treatment that the Supreme Court struck down in its DOMA ruling.  And this disparate treatment will continue in Colorado until the Colorado Constitution is amended to repeal Colorado’s state DOMA provision, or until a federal statute is enacted which treats state-recognized civil unions the same as state-recognized marriages.

Further, the decision did nothing to address Section 2 of DOMA, which allows states to refuse to recognize same-sex marriages performed under the laws of other states.   While Section 2 still stands, Colorado can continue to refuse to recognize the same-sex marriages performed in other states, transforming the status of those couples who come to Colorado into civil unions.

This results in an anomaly for federal tax purposes.  The same-sex couple who marries in Massachusetts will be eligible to file a joint federal tax return as long as they continued to live in that state.  However, if the couple subsequently moves to Colorado and their marriage is no longer recognized, do they suddenly lose the right to file a joint federal tax return?

Perhaps most critical, this decision does not begin to unravel the complex issues that arise when same-sex couples have children.  As long as the non-biological parent formally adopts a child, these issues are fairly straightforward.  However, Colorado recognizes presumptions in favor of both a biological parent and a psychological parent in cases regarding allocation of parental responsibilities.  Thus, where a woman in a Colorado civil union becomes impregnated by a third party who is not involved in raising the child thereafter, Colorado Courts are still required to give weight to the biological connection between the child and the sperm donor when making decisions regarding who should have parenting time with that child.  However, a child born to a woman in a traditional marriage is presumed to be the child of that marriage.

For those fighting for equality, this decision is a powerful (yet mixed) step forward.  The other side of the equality coin is, of course, that with the ability to become legally married comes the need to legally end the marriage if a relationship ends.  As we move forward, divorce lawyers in Colorado now must begin the process of figuring out how to help these individuals deal with the questions left unanswered by today’s decision.


Ann Gushurst, Esq. has been practicing exclusively in family law for most of her law career. Her practice with Gutterman Griffiths PC in Littleton is currently a mixture of litigation, collaboration, and mediation. She is also responsible for the firm’s research and appellate work. Ms. Gushurst is the editor of the CBA Family Law Section newsletter, is on the section’s Executive Council, and is one of the three chairs of the Family Law Ethics Task Force.

Kristi Anderson Wells, Esq. has over 15 years of experience in the areas of taxation, benefits and executive compensation law which she brings to the practice of family law. Kristi’s practice focuses on the division of executive compensation, retirement assets and stock options in dissolution. In addition to her law degree, Kristi has a Master’s degree in Taxation (LL.M.) from the University of Washington School of Law.

The opinions and views expressed by Featured Bloggers on CBA-CLE Legal Connection do not necessarily represent the opinions and views of the Colorado Bar Association, the Denver Bar Association, or CBA-CLE, and should not be construed as such.

Sotomayor Marks Dedication of Carr Judicial Center

By Sara Crocker

Sotomayor1As a child, Sonia Sotomayor never dreamed of becoming a lawyer, let alone a U.S. Supreme Court justice — until she was introduced to Perry Mason, the fictional L.A. defense attorney of TV.

“Watching Perry Mason taught me about something called lawyering,” she said, adding the show “exposed me to this different career and I started to examine and think about it as a possibility for myself.”

Sotomayor joined Chief Justice Michael Bender and Gov. John Hickenlooper to dedicate the Ralph L. Carr Colorado Judicial Center on Thursday. Before the official dedication, she met with 100 students from around the state, as well as their family members and state legislators, to talk with them and hear their questions.

Students asked Sotomayor everything from whether she sometimes feels that she has too much power to how she coped with losing her father at the age of 9. Throughout the discussion, she encouraged students to take chances and to follow their passion, whatever that may be.

“The hardest thing to do is take chances when you can fail,” she said, but the way to alleviate that fear is to learn.

“The world opened for me when I read,” Sotomayor said. “When I found books, I found my rocket ship to the universe.”

Bender called Sotomayor a “rockstar” and praised her for her dedication to youth and ensuring that they were a part of the dedication of the judicial center. The chief justice also took time to recognize the building’s namesake, the late Gov. Ralph L. Carr, who spoke out against the internment of Japanese-Americans during World War II.

“Governor Carr was the only person of any political stature who stood up for those who were unjustly interned. He did so against overwhelming public opinion and he did so in a way that actually destroyed his political career,” Bender said. “He is somebody that we all should be inspired by.”

Guests at the dedication included people who were at Japanese internment camps in Colorado, former governors, legislators, and judges and justices from around the state.

Sotomayor2During the dedication ceremony, Sotomayor compared the judicial center with her own courthouse in Washington. Sotomayor, a lover of architecture, said courthouses embody the important work done within them.

The new center, called a 100-year building because the judicial branch plans to grow with the building, sits across from the Capitol at 2 E. 14th Ave. The $258-million building features airy spaces with natural light flowing from the atrium, and the accompanying high-rise houses approximately 1,200 judicial branch employees.

“This center will live it’s intended 100 years with dignity, but its message, like that of my court, will live through the centuries, carried by the memory of all who have walked its halls and felt its impact,” Sotomayor said.

Sara Crocker is the communications specialist for the Colorado and Denver Bar Associations and the editor of The Docket.

U.S. Supreme Court Justice Sonia Sotomayor to Dedicate Ralph L. Carr Judicial Center

sotomayorU.S. Supreme Court Justice Sonia Sotomayor will be in Denver for the May 2nd dedication of the new Ralph L. Carr Colorado Judicial Center. The Colorado State Judicial Branch will live-stream coverage of the public dedication on May 2 from 1:30 pm to 3:30 pm. The stream will be available in English and Spanish; click here to stream the live coverage.

Additionally, Justice Sotomayor will hold an event from 8 am to 10 am on the morning of the dedication where she will meet with one hundred 8th, 9th, and 10th graders from across Colorado who have been selected by the Colorado Youth Advisory Council. Justice Sotomayor will meet with the students, talk with them about her life and experiences and answer their questions.

The Colorado Supreme Court announced that the Colorado Court of Appeals and Supreme Court will be closed to the public on May 1 and 2. The clerks’ offices for both courts will remain open. Emergency court filings that cannot be mailed or e-filed will be accepted via the information desk in the lobby of the Ralph L. Carr Office Tower. Regular business will resume on May 3.

Tenth Circuit: Court Denied Prisoner’s Successive Motion for Relief Under 28 U.S.C. § 2255

The Tenth Circuit published its opinion in In re: Leo D. Graham on Tuesday, April 23, 2013.

In 2000, Leo D. Graham pleaded guilty to one count of armed bank robbery. He did not appeal, but later he unsuccessfully sought relief under 28 U.S.C. § 2255. He then moved for authorization to file a second § 2255 motion based on Missouri v. Frye, 132 S. Ct. 1399 (2012), and Lafler v. Cooper, 132 S. Ct. 1376 (2012).

Congress has placed strict limitations on successive § 2255 motions, requiring that a movant obtain this court’s authorization before filing in district court. See 28 U.S.C. § 2255(h). To obtain authorization based on Frye and Lafler, Mr. Graham must show that these decisions establish “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court that was previously unavailable.”

To date, however, every circuit court to consider the question has held that Frye and Lafler do not establish a new rule of constitutional law. Both Frye and Lafler concern the Sixth Amendment right to the effective assistance of counsel in the plea bargaining process. In each case, the Court reached its decision by applying the well-established principles regarding the assistance of counsel that were initially set forth in Strickland v. Washington, 466 U.S. 668 (1984).

The Tenth Circuit denied authorization.

U.S. Supreme Court Denies Review of Veterans’ Benefits Petition

On Monday, January 7, 2013, the Supreme Court of the United States denied a petition for review of a May Ninth Circuit Court of Appeals decision regarding the processing of medical benefits for veterans. The denial by the Court effectively affirms the Ninth Circuit’s decision that the judicial branch lacks authority to decide such appeals.

The case was originally brought by veterans’ advocacy groups in 2007.  After a bench trial in 2008, United States District Judge Samuel Conti concluded that the court did not have jurisdiction over the appeals, citing the Veterans’ Judicial Review Act and noting that the court lacked power to remedy the wrongs against veterans documented by “voluminous” evidentiary submissions to the court. Veterans for Common Sense v. Peake, 563 F. Supp. 2d 1049 (N.D. Ca. 2008). 

A panel of the Ninth Circuit overturned that decision in 2011, ordering that, because of the serious nature of the claims, veterans groups could ask the court to order changes in the system. Veterans for Common Sense v. Shinseki, 644 F.3d 845 (9th Cir. 2011). Upon request for a new hearing before a larger panel, however, that ruling was reversed.

The full panel of the Ninth Circuit determined that it did not have jurisdiction to hear the appeal.

[W]e lack jurisdiction to afford such relief because Congress, in its discretion, has elected to place judicial review of claims related to the provision of veterans’ benefits beyond our reach and within the exclusive purview of the United States Court of Appeals for Veterans Claims and the Court of Appeals for the Federal Circuit. . . . As much as we as citizens are concerned with the plight of veterans seeking the prompt provision of the health care and benefits to which they are entitled by law, as judges we may not exceed our jurisdiction.

Veterans for Common Sense v. Shinseki, 678 F.3d 1013, 1016 (9th Cir. 2012). In September, the plaintiff veterans organizations submitted a petition for writ of certiorari to the United States Supreme Court, asking the Court to rule on whether the Veterans Judicial Review Act allows veterans to challenge in federal court the systemic delays in the VA’s provision of mental health care and death and disability compensation. That petition was denied on Monday, January 7, 2013. Plaintiff group Veterans for Common Sense issued a statement in response to the denial, stating in part

We are deeply disappointed the Court did not hear the urgent plea of suicidal Veterans who face delays of months, and often years, seeking VA assistance.  Although significant improvements were made in some areas within VA, such as a suicide hotline set up after our lawsuit that rescued 23,000 distraught Veterans, the nation’s second largest department remains in deep crisis.

The Colorado Bar Association, in conjunction with several bar associations across the state, has established Colorado Lawyers for Colorado Veterans, a service where veterans can meet with an attorney regarding their legal issues free of charge. Attorneys wishing to assist with this program can contact Carolyn Gravit.

Eligibility for VA benefits and appeals processes will be discussed at the January 31, 2013 program, “Fundamentals of Practicing Before the Veterans’ Administration 2013.” This three-hour program will take place at 9 a.m. at the CLE offices. It qualifies for the VA three-hour training requirement for attorneys who wish to represent veterans before the Veterans’ Administration. Attorneys can attend for a significantly reduced rate by taking a pro bono case. Click here for registration information.

CLE Program: Fundamentals of Practicing Before the Veterans’ Administration 2013

This CLE presentation will take place on Thursday, January 31, 2013, at 9:00 a.m. Click here to register for the live program, and click here to register for the webcast.

Can’t make the live program? Click here to order the homestudy.

Tenth Circuit: Board of Immigration Appeals Must Reevaluate § 212 Waiver Denial Due to Judulang

The Tenth Circuit published its opinion in Sosa-Valenzuela v. Holder on August 31, 2012.

Baltazar Sosa-Valenzuela, a lawful permanent resident, shot a gang member and was convicted. The INS (now the DHS) sought to deport him. Sosa-Valenzuela sought a § 212 waiver (since repealed) and later, adjustment of status due to his marriage to an American citizen. An immigration judge (IJ) granted both requests and denied the DHS’s motion to reconsider. The Board of Immigration Appeals (BIA) vacated the IJ’s § 212 waiver and adjustment of status.

The BIA has broad appellate jurisdiction under 8 C.F.R.  § 1003.1 and reviews IJ decisions de novo. It also is required to apply new law to its decisions. The BIA’s broad powers of collateral review do not violate a petitioner’s due process rights because “the only protections afforded are the minimal procedural due process rights for an opportunity to be heard at a meaningful time and in a meaningful manner.” Sosa-Valenzuela was afforded that opportunity.

The Tenth Circuit remanded to the BIA to reevaluate the § 212 waiver decision because the case it relied on in finding Sosa-Valenzuela was ineligible for the waiver had later been found unconstitutional by the Supreme Court in Judulang v. Holder, 132 S. Ct. 476 (2011). The court affirmed the BIA’s denial of adjustment of status due to marriage because its review of the BIA’s exercise of discretion is limited under 8 U.S.C. § 1252 to constitutional claims or questions of law, neither of which was present here.

Professors Calhoun and Wilkinson Named Winners of Jules Milstein Scholarship Award

Editor’s Note: Celebrate the opening of the Supreme Court’s next term. Details below.

The University of Colorado School of Law has announced professors Emily Calhoun and Charles Wilkinson as the 2012 winners of the Jules Milstein Scholarship Award. Prof. Calhoun is the author of Losing Twice, while Prof. Wilkinson was recognized for The People are Dancing Again. As noted on the CU Law website, the award is given to “Colorado Law faculty . . . for a substantial published work that best demonstrates excellence in legal scholarship. It is normally given once a year at the end of the spring semester for a work published at any point in the preceding two calendar years.”

Prof. Calhoun began her legal career in the early 1970s as a civil rights attorney with the Southern Regional Office of the ACLU. She has consulted with organizations and attorneys on civil rights issues, and has worked to protect faculty rights and privileges through administrative and other service at the University of Colorado. She teaches and writes in the areas of civil rights, intractable disputes, and federal jurisdiction. In addition to her faculty responsibilities, Professor Calhoun currently serves as both a mediator and an ombudsperson for faculty disputes at the University. In Losing Twice, Prof. Calhoun argues that Supreme Court decisions often inflict a second loss on the losing parties and that the outrage generated by well-known decisions such as Gonzales v. Carhart and Bowers v. Hardwick is a consequence of this second loss.

Prof. Wilkinson worked with the Native American Rights Fund and taught at the University of Oregon, the University of Michigan, and the University of Minnesota before coming to CU Law in 1987. Prof. Wilkinson’s scholarship and teaching focus on federal public land law and Indian law. He is the author of thirteen books, ranging from text books on public land law and Indian law to books aimed at a general audience. Prof. Wilkinson received the 2005 Colorado Book Award in the History category for Blood Struggle: The Rise of Modern Indian Nations and the 2000 Colorado Book Award in the Colorado/West category for Messages From Frank’s Landing. His latest book, The People Are Dancing Again: The Siletz Tribe Of Western Oregon, explores the history of Oregon’s Siletz tribe from initial contact with Europeans through termination of the tribe and eventual restoration of the tribe’s official status.

Please join Prof. Calhoun at the CBA-CLE offices on October 1, 2012, as we celebrate the opening of the Supreme Court’s next term. Prof. Calhoun will discuss Losing Twice, and encourages participants to bring examples of U.S. Supreme Court constitutional rights decisions that they consider to be outrageous. These decisions will be used to explore Professor Calhoun’s argument about losing twice in rights disputes.

CLE Program: Losing Twice – Harms of Indifference in the Supreme Court with Emily Calhoun

This CLE presentation will take place on Monday, October 1. Participants may attend live in our classroom or watch the live webcast.

If you can’t make the live program or webcast, the program will also be available as a homestudy in two formats: video on-demand and mp3 download.

Affordable Care Act Upheld by the United States Supreme Court

According to SCOTUSBlog, the United States Supreme Court has upheld the entirety of President Obama’s health care reform law known as the Affordable Care Act. Chief Justice Roberts joined the Court’s four left-leaning justices and penned the opinion, validating the individual mandate as a tax rather than under the Commerce Clause. For a more detailed evaluation, visit SCOTUSBlog for continuing analysis throughout the day.

In Plain English: The Affordable Care Act, including its individual mandate that virtually all Americans buy health insurance, is constitutional. There were not five votes to uphold it on the ground that Congress could use its power to regulate commerce between the states to require everyone to buy health insurance. However, five Justices agreed that the penalty that someone must pay if he refuses to buy insurance is a kind of tax that Congress can impose using its taxing power. That is all that matters. Because the mandate survives, the Court did not need to decide what other parts of the statute were constitutional, except for a provision that required states to comply with new eligibility requirements for Medicaid or risk losing their funding. On that question, the Court held that the provision is constitutional as long as states would only lose new funds if they didn’t comply with the new requirements, rather than all of their funding.

Local Case and Attorneys at the Supreme Court: Cheney’s Secret Service Agents Entitled to Qualified Immunity

It isn’t often that a case rooted in Colorado reaches the U.S. Supreme Court, but on June 4, 2012, the Supreme Court announced its decision in a case with deep Colorado connections, Reichle v. Howards. The facts of the case occurred in Beaver Creek, Colorado, and the respondent, Golden resident Steven Howards, was represented by Denver attorney David Lane of Kilmer Lane & Newman LLP, while the petitioner Secret Service agents were represented by Denver lawyer Sean Gallagher of Polsinelli Shughart, PC.

The case involved Howards, who confronted Vice President Cheney at a 2006 event at a mall in Beaver Creek. According to the Court’s opinion, Howards entered the line to meet Cheney, made critical remarks regarding the administration’s policies in Iraq, and touched Cheney on the shoulder before leaving (something Howards later denied to Secret Service agents). Howards was arrested by Secret Service agents Gus Reichle and Dan Doyle. He was charged with harassment, but the charges were later dropped. Howards then brought suit against the agents, claiming that he had been arrested without probable cause, a violation of the Fourth Amendment, and in retaliation for his comments to Vice President Cheney, a violation of the First Amendment.

The Court granted certiorari on the questions of (1) whether a First Amendment retaliatory arrest claim could be brought where the arrest was supported by probable cause and (2) whether there was clearly established law at the time of Howards’s arrest as to the first question. The Court only addressed the second question, and found that the law was not clearly established at the time of the arrest, entitling the agents to qualified immunity.

Lane summarized his thoughts on the ruling in a statement to the Associated Press, “‘They broke absolutely no legal ground while managing to duck every significant issue in the case.’” However, Gallagher saw the decision differently: “‘This ruling confirms that the federal courts will not subject law enforcement officials to personal liability except when it is absolutely clear that they have no basis to make the arrest.’” While it remains an open question whether a First Amendment retaliatory arrest claim can be brought where the arrest is supported by probable cause, this case was certainly fascinating for the facts and issues involved, as well as its connections to Colorado and two of Denver’s prominent attorneys.

Tenth Circuit: Determination that Mental Retardation Is Not a Fluid Concept is Consistent with Atkins

The Tenth Circuit Court of Appeals published its opinion in Ochoa v. Workman on Wednesday, January 18, 2012.

The Tenth Circuit affirmed the district court’s decision. An Oklahoma state jury found Petitioner guilty of two counts of first degree murder and sentenced him to death. In Atkins v. Virginia, 536 U.S. 304, 321 (2002), the Supreme Court held that the Eighth Amendment precludes the execution of mentally retarded criminals. Relying on Atkins v. Virginia, 536 U.S. 304, 321 (2002), in which the Supreme Court held that the Eighth Amendment precludes the execution of mentally retarded criminals, the Oklahoma Court of Criminal Appeals granted Petitioner a post-conviction jury trial to determine whether he was mentally retarded. The jury found Petitioner failed to meet his burden of proving, by a preponderance of the evidence, he was mentally retarded, and the appeals court affirmed. The Tenth Circuit granted Petitioner permission to file a second habeas petition raising his Atkins claims in federal district court. The district court denied the petition on the merits.

Petitioner contends that “Oklahoma law, which focuses on whether a defendant is mentally retarded at the time of trial, instead of whether he was mentally retarded at the time of the commission of the crime, is ‘contrary to, or . . . an unreasonable application of’ Atkins.” The Court rejected this contention. “Oklahoma’s determination that mental retardation is not a fluid concept is entirely consistent with Atkins.” Ochoa further asserts his trial was fundamentally unfair because “(1) the jury was informed he had been convicted of a crime, (2) he was forced to attend trial in an orange prison jumpsuit, and (3) he was forced to wear a shock sleeve during trial.” However, the Court held that the district court correctly concluded none of the alleged errors identified by Petitioner entitle him to habeas relief.