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Showing posts from September, 2005

2254 relief granted for Sixth Amendment violation -- trial court denied counsel's request for continuance and defendant proceeded to trial pro se

Defendant was charged in New Jersey state court on multiple counts of theft by deception involving prospective buyers whose investments in a failed condominium development were not refunded. Counsel was appointed, but a few months before trial was scheduled to begin new counsel was appointed and requested a continuance in view of the lengthy witness list counsel just received, the need to conduct extensive interviews and the late production of discovery. The trial court denied the continuance request, and the defendant then elected to represent himself at trial because he was more familiar with the facts and witnesses than was his new counsel. The trial court granted the request to proceed pro se, and counsel remained as back-up. After losing at trial and on direct appeal, defendant filed under 2254. The Third Circuit reversed the district court's denial of relief, concluding that the denial of the request for continuance rendered the defendant's waiver of his Sixth Amend…

Third Circuit Remands to Decide if Officer Deliberately Violated Miranda Before Getting Mirandized Statement

In United States v. Naranjo, http://www.ca3.uscourts.gov/opinarch/034759p.pdf, the Third Circuit held that if officers deliberately used a two-step strategy to obtain a confession in violation of Miranda, first interrogating a custodial defendant without warnings and then obtaining a postwarning statement, both statements must be exluded unless curative measures were taken before the postwarning statement was made. This was the Court's first application of the recent plurality decision in Missouri v. Seibert, 542 U.S. 600. In Naranjo's case, the suppression hearing took place prior to the Seibert decision. The evidentiary hearing revealed that the entire interrogation session was custodial, but that the warnings were only given toward the end of the session. The government conceded that the statements given in the first part of the interrogation session should be suppressed, but contended that the postwarning statements should be admitted because they were voluntarily give…

3rd Cir. expounds on definition of “testimonial” in ruling that admission of out-of-court statement was harmless error

United States v. Hinton, No. 03-3803 (3d Cir. Sept. 14, 2005), deals with a challenge to out-of court testimony under the Confrontation Clause, most recently addressed by the Supreme Court in Crawford v. Washington, 541 U.S. 36 (2004). Favoring application of Crawford’s third formulation of "testimonial" ("statements made under circumstances that would lead an objective witness reasonably to believe that the statement would be available for use at a later trial") as ensuring compliance with the Confrontation Clause, the Third Circuit concluded that, while the witness’s 911 call here was non-testimonial, his statement to police that Hinton had threatened him with a gun was testimonial. While its admission was error because there was no showing that the witness was unavailable or that Hinton had an opportunity to cross-examine him, such error was harmless because the statement did not affect the jury’s decision. The Third Circuit affirmed the conviction, but vacated …

District court’s failure to include final forfeiture order was clerical error

In United States v. Bennett, No. 04-3650 (3d Cir. Sept. 12, 2005), the Third Circuit affirmed the district court’s amended judgment to include a final order of forfeiture three years after sentencing. Though Bennett was sentenced in August 2001, the district court did not amend the judgment to include a final forfeiture order, as required by Fed. R. Crim. P. 32.2(b)(3), until August 2004, relying on Fed. R. Crim. P. 36, which allows the court to correct clerical errors in the judgment. The Third Circuit concluded that the district court’s failure to make forfeiture a part of the sentence was clerical in nature, rather than substantive, because the parties had stipulated to the forfeiture, a preliminary order of forfeiture had been issued, and the omission of a final order resulted from organizational failure, not legal error.

3rd Cir to consider en banc whether Booker applies to restitution and forfeiture

The 3rd Cir has sua sponte voted to rehear en banc three appeals previously argued before two different panels in which the issue is whether the rule of Blakely and Booker applies to orders of restitution and forfeiture. See US v. Kennard Gregg, No 04-2912 (9/16/05); US v. James Fallon No. 03-4184 (both addressing restitution); and US v. Paul Leahy, No. 03-4490 (addressing forfeiture.) In the Gregg and Fallon, the Court has stated that the following issue is to be addressed:
Whether orders of restitution are a criminal penalty and whether the
decision of the Supreme Court of the United States in Booker applies to such
orders under the MVRA (the mandatory restitution Act).

The issue in Leahy is whether Booker applies to forfeiture, and also "whether orders of restitution are a criminal penalty and whether Booker applies to such orders under the VWPA" (the discretionary restitution Act in effect prior to the MVRA).
The en banc argument is scheduled for Nov. 1, 2005. The granting of…

Federal courts lack authority to review state court retroactivity decisions

In Warren v. Kyler, No. 03-2190 (Sept. 7, 2005), the Third Circuit concluded that it lacked the authority to apply a new state court decision retroactively in a federal habeas proceeding where the state court had already declined to give retroactive effect to the case. The Court noted that nothing in the United States constitution requires retroactive application of state court decisions on criminal matters and, thus, the state courts are free to determine the retroactivity of their own jurisprudence.

Pro se litigant's fourth collateral motion not considered "second or successive"

In In Re Wagner, No. 03-4254 (3d Cir. Sept. 6, 2005), the Third Circuit ruled that a pro se petitioner's fourth collateral motion could not be classified as a "second or successive" petition under 28 U.S.C. § 2255 which would require permission of the Court for filing. The Court reasoned that petitioner's first three motions did not constitute § 2255 petitions because petitioner's first collateral motion never invoked § 2255, his second motion was recharacterized as a § 2255 without notice and an opportunity to amend or withdraw, and his third motion was denied as a second or successive petition without reaching the merits. Accordingly, the Court concluded that it was bound to construe petitioner's fourth motion as his first motion for relief under § 2255 and no permission to file the petition was required.