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Showing posts from July, 2015

Martinez v. Ryan does not apply to excuse procedural default caused by attorney error at the state collateral appeal stage.

InNorris v. Brooks,No. 13-4448, the Court addressed a Rule 60(b) motion filed by a 2254 habeas petitioner who claimed that the case of Martinez v. Ryan, 132 S.Ct. 1309 (2012), called for the reopening of his federal habeas petition, previously denied in 2007.
Procedural background in Norris:             In his state PCRA proceedings, Norris raised a claim of ineffective assistance of trial counsel (“IAC trial counsel”) for failing to move to dismiss on rule based and constitutional speedy trial grounds.  PCRA counsel raised the IAC trial counsel claim (poorly, citing the wrong dates) in the initial PCRA petition and then abandoned the claim, over Norris’s strenuous objections, on PCRA appeal.  Norris sought review of his IAC trial counsel/speedy trial claim in a 2254 federal habeas petition.  The federal habeas court denied his petition finding that the claim was procedurally defaulted because it was not raised at the PCRA appeal level. 
A recap of Martinez: In Martinez v. Ryan, SCO…

Doyle Error Not Harmless in Credibility Contest Between Cooperator and Accused

In United States v.Jace Edwards, No. 14-4088, the Court remands for a new trial following the government's concession that the trial prosecutor had violated the constitutional rule of Doyle v. Ohio, 426 U.S. 610 (1976).  As restated in contemporary Third Circuit precedent, that rule prohibits the prosecutor from causing the jury to draw an impermissible inference of guilt from a defendant’s post-arrest silence after the defendant has been Mirandized.  On appeal, the government’s sole contention was that the trial prosecutor’s misconduct was harmless.
The Court easily dispatches of the government's contention.  Though the prosecution was founded on a controlled delivery, the Court explains, the trial boiled down to a credibility contest between the defendant and a cooperating witness.  Despite “some evidence suggesting that [the defendant’s] exculpatory story was not plausible,” there was no way to say the verdict “was surely unattributable to the error.”  Accordingly, the gov…

Court Clarifies Mental State Requirement for 'Color of Official Right' Extortion, Rejects Challenges to 'Sophisticated Means' Enhancement

In United States v.Fountain, Nos. 13-3023 &c., the Court finds occasion to clarify the elements of extortion under “color of official right” within the meaning of the Hobbs Act, 18 U.S.C. § 1951.  The three appellants were found guilty after a two-week trial of participating in a tax refund scam.  A Hobbs Act count named only one defendant, an IRS employee who drew upon her knowledge of internal auditing procedures to avoid the red-flagging of fraudulent applications for certain tax credits.  The applications were submitted using personal information supplied by third-party claimants in exchange for a portion of the refunds.  The Hobbs Act count rested on one claimant’s agreement to pay $400 to the IRS employee in the belief — on the government’s theory — that it would help the claimant obtain the refund and avoid an audit.
Distinguishing certain broad language in two prior opinions, the Court (per Krause, J., joined by Fuentes and Fisher, JJ.) holds that to prove extortion under…
Officers did not have reasonable suspicion at the moment of seizure.

InUnited States v. Shawn Lowe, No. 14-1108, ___ F.3d. ___, 2015 WL 4032921 (3d. Cir. July 2, 2015), the Third Circuit reversed the district court's denial of Lowe's suppression motion, finding that the district court had erred in determining the moment of seizure during a Terry stop.  The Court explained:

Here, three marked police carsnearly simultaneously arrived at Ms. Witherspoon’s residence at 4 o’clock in the morning. Four uniformedpolice officers immediately got out of their patrol cars and approached Lowe and Witherspoon, commandingthem to show their hands. . . .  [T]he record indicates that [the officers] arrived in a hurried manner and at least one drew his firearm at some point during the encounter. A reasonable person in Lowe’s position would not have felt free to decline this interaction, turn, and leave. The Court also determined that Lowe submitted to the show of authority. The seizure was effe…

Prosecutorial Conduct, Response to Jury's Request and Evidentiary and Sentencing Issues Denied by Circuit

In United States v. Kolodesh, No. 14-2904 (3d. Cir. May 28, 2015), the Third Circuit affirmed the district court’s sentence of 176 months’ imprisonment, three years supervised release, and an order for $16.2 million in restitution.

Kolodesh, who co-owned Home Care Hospice, Inc., appealed his conviction of one count of conspiracy to defraud a health care benefit program (18 U.S.C. § 1349), twenty-one counts of health care fraud (18 U.S.C. § 1347), two counts of mail fraud (18 U.S.C. § 1341), and eleven counts of money laundering (18 U.S.C. § 1957) based on his company’s involvement in a Medicare fraud scheme. Kolodesh and his co-workers falsified records to show that patients were eligible for continuous Hospice care that the patients never received, gave doctors kickbacks, gifts, and cash for referrals, and even put some doctors on the company’s payroll with sham job titles.Kolodesh’s company also submitted fraudulent claims for Medicare reimbursement, which constituted 90% of their re…