Archive | Sixth Circuit

Is Escape from a Nonsecure Courtroom a “Violent Felony”?

Last week, in United States v. Oaks, a divided panel of the U.S. Court of Appeals for the Sixth Circuit held that escaping from a courtroom while in police custody is not a “violent felony” for sentencing purposes under the Armed Career Criminal Act if the courtroom was not a secure facility.” Judge Martin wrote the opinion for the court. District Judge Hood, sitting by designation, dissented, arguing that escape from police custody at a courthouse should be considered a “violent felony.”

Oaks was being held in a secure county jail before being taken by his custodian to the courthouse for an appearance on felony charges of evading arrest, felony reckless endangerment, attempted aggravated robbery, theft over $500.00 and aggravated burglary. Obviously the courtroom is not as secure as the county jail, but I am hard pressed to imagine an individual who is “significantly more likely than others to attack, or physically to resist, an apprehender, thereby producing a ‘serious potential risk of physical injury,’” than someone who flees from law enforcement custody during an appearance in a matter in which he is facing felony charges.

Continue Reading 26

The Dog-Gonest Case Ever

This morning the U.S. Court of Appeals for the Sixth Circuit decided what could be the “dog-gonest case ever” to reach a federal appellate court, O’Neill v. Louisville/Jefferson County Metro Government.  Judge Gilman’s opinion for the court begins:

This is perhaps the dog-gonest case ever to reach a federal appellate court. In October 2008, several uniformed officers of the Louisville Metro Animal Services (LMAS) intruded into the O’Neills’ home without a warrant and without consent, confiscated the O’Neills’ two adult dogs and the dogs’ litter of seven puppies, neutered and spayed the adult dogs and implanted microchips in all nine animals, and then required the O’Neills to pay over $1,000 to retrieve them, all without any formal charges ever being lodged against the O’Neills.

The district court dismissed all of the O’Neills’ constitutional and state-law claims arising out of this incident, concluding that the O’Neills were operating an unlicensed Class A kennel in violation of the City’s animal-control ordinance, and that none of their constitutional or state-law claims had merit. For the reasons set forth below, we reinstate the majority of the O’Neills’ claims and remand the case for further proceedings consistent with this opinion.

Continue Reading 53

The Fourth Time Is Not the Charm for Van Hook

This morning a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit issued an opinion in Van Hook v. Bobby for the fourth time.  On three previous occasions the panel had granted habeas relief to death row inmate Robert Van Hook , and all three times the panel was overturned — twice by an en banc court and once, summarily, by the Supreme Court.  This time, it appears, Van Hook was out of arguments, and the panel denied his petition. [...]

Continue Reading 15

Sixth Circuit Splits on Juror’s Ex Parte Communication

Today, a divided panel of the U.S. Court of Appeals for the Sixth Circuit rejected death row inmate Bobby Shepherd’s appeal of the district court’s denial of his petition for a writ of habeas corpus in Shepherd v. Bagley. Among Shepherd’s claims was that his trial was constitutionally defective because one of the jurors had consulted a psychologist during the penalty phase of the trial to understand what “paranoid schizophrenia” means. This was potentially relevant because the defense had argued (unsuccessfully) that Shepherd’s paranoid schizophrenia was a mitigating factor that should weigh against imposition of the death penalty. The juror maintained that this conversation did not affect his or the jury’s deliberations, however, and the trial court concluded there was no prejudice and sentenced Shepherd to death.

One of the issues dividing the Sixth Circuit panel was whether the trial court properly handled the juror’s improper conduct and, specifically, whether the prosecution or the defense should bear the burden of proof in such a situation. Judge Kethledge, writing for the court joined by Chief Judge Batchelder (who also wrote a separate concurrence addressing this issue), concluded that the burden was on the defense to prove prejudice. Judge Merritt, in dissent, forcefully argued the burden must rest on the prosecution.

Judge Merritt argued that the burden was on the proscecution to prove that the juror’s conversation with the psychologist was not prejudicial, and that this burden was never met.  In support of his position, Judge Merritt cited the Supreme Court’s decision in Remmer v. United States, 347 U.S. 227, 229 (1954), in which the Court held that ex parte communications with jurors are “presumptively prejudicial. The majority, on the hand, concluded that Remmer had been abrogated by subsequent decisions, including Smith v. Phillips, 455 U.S. 209, 215-17 (1982), [...]

Continue Reading 42

Decision Invalidating Michigan Civil Rights Initiative Goes En Banc

Via Ed Whelan comes news that the U.S. Court of Appeals for the Sixth Circuit has voted to rehear Coalition to Defend Affirmative Action v. Regents of the University of Michigan en banc — something I suggested would happen. In this case, a divided panel held that Michigan’s Proposal 2, aka the “Michigan Civil Rights Initiative,” was unconstitutional.  The initiative, which voters approved, provides that the state, including state educational institutions, may not “discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education or public contracting.”  As I explained in my prior post about this case:

Judge Cole, joined by Judge Daughtrey, held that the proposal is unconstitutional under the Equal Protection Clause. Specifically, the initiative is invalid under Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457 (1982) and Hunter v. Erickson, 393 U.S. 385 (1969) because it “unconstitutionally alters Michigan’s political structure by impermissibly burdening racial minorities.” Judge Gibbons dissented.

The outcome of this case will be interesting, particularly because the Sixth Circuit remains closely divided along ideological lines.  Moreover, as Whelan reports, two members of  the court, Judges McKeague and Kethledge — two Bush appointees from Michigan — have recused themselves from the case.  I’ll also venture a further prediction: If the original panel is upheld, this case will go to the Supreme Court, where Justice Kennedy will decide the Michigan Civil Rights Initiative’s fate.

UPDATE: The Detroit Free Press reports here. [...]

Continue Reading 59

The Stumpf Sequel

Today the U.S. Court of Appeals for the Sixth Circuit granted death row inmate John David Stumpf’s petition for a writ of habeas corpus for a second time – seven years after its first habeas grant, six years after the Supreme Court’s reversal of that decision, and four years after the subsequent oral argument. As one might expect, the panel was divided, just as it had been the first time around. Judge Daughtrey wrote the majority opinion, joined by Judge Moore. Judge Boggs dissented. Although the majority’s rationale is somewhat different this time, the arguments seem familiar. Could this decision prompt another Supreme Court reversal? Perhaps. After all, this is a habeas grant from the Sixth Circuit.

Excerpts from the opinions are below the jump. [...]

Continue Reading 12

How Long a Nap Is Ineffective Assistance of Counsel?

If your defense attorney falls asleep during your trial, and you are convicted, do you have an ineffective assistance of counsel claim? That may depend on how long your attorney was asleep, and whether you can demonstrate prejudice. Yesterday, in Muniz v. Smith, the U.S. Court of Appeals for the Sixth Circuit denied a habeas petition alleging ineffective assistance of counsel because the defense attorney fell asleep while the defendant was under cross-examination. A courtroom nap, by itself, is insufficient to establish ineffective assistance of counsel unless the attorney is asleep for a “substantial portion” of the trial, and that could not be demonstrated here. Further, the defendant could not demonstrate he was prejudiced by his attorney’s nap. [...]

Continue Reading 102

Sixth Circuit Strikes Down Michigan Civil Rights Initiative

In a divided opinion, the U.S. Court of Appeals for the Sixth Circuit struck down Michigan’s Proposal 2, aka the “Michigan Civil Rights Initiative.” Proposal 2 was a successful ballot initiative that provides that the state, including state educational institutions, may not “discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education or public contracting.” Judge Cole, joined by Judge Daughtrey, held that the proposal is unconstitutional under the Equal Protection Clause. Specifically, the initiative is invalid under Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457 (1982) and Hunter v. Erickson, 393 U.S. 385 (1969) because it “unconstitutionally alters Michigan’s political structure by impermissibly burdening racial minorities.” Judge Gibbons dissented. The decision in Coalition to Defend Affirmative Action v. Regents of the University of Michigan is here.

I am quite confident this is not the last we have heard of this case, and will be quite surprised if this decision is ultimately sustained. Given the panel and the holding, I think there is a reasonable likelihood of it going en banc, and if this opinion is not overturned en banc, I would think that this case — or perhaps the similar case challenging the equivalent California initiative — will go to the Supreme Court.

UPDATE: According to this story, Michigan Attorney General Bill Schuette will file a petition for rehearing en banc. [...]

Continue Reading 181

Should Habeas Proceedings Be Stayed If the Petitioner Is Incompetent?

Last week, in Carter v. Bradshaw, the U.S. Court of Appeals for the Sixth Circuit held that habeas proceedings challenging a capital sentence should be stayed until the petitioner is competent to proceed. The opinion by Judge Martin, joined by Judge Cole, acknowledged that “federal habeas petitioners facing the death penalty for state criminal convictions do not enjoy a right to competence,” but nonetheless concluded that habeas petitioners “do have a statutory right to competence in some situations.” For example, only a competent habeas petitioner may terminate habeas proceedings once they have been initiated. By the same token, the court suggested, if a petitioner lacks the competency to assist the attorneys working on his behalf – perhaps by providing information necessary to prove an ineffective assistance of counsel claim – it is tantamount to the petitioner terminating the claim. On this basis, Judge Martin concluded that Carter’s habeas proceedings should be stayed until such time as Carter regains his competency.

Judge Martin’s opinion provoked a forceful dissent from Judge Rogers. Here is how begins:

Today the court allows habeas petitioners to prevent States from enforcing their judgments, potentially forever, on the grounds of a nonexistent right to competency in habeas proceedings. The asserted right has no basis in the Constitution or federal statutes. Civil suits can be brought by lawyers representing mentally incompetent plaintiffs, and habeas cases are no different. Nor are capital cases different in this respect.

In the concluding section, Judge Rogers writes:

Requiring competency on the part of capital habeas petitioners is not compelled by the right to competency at trial, the right to competency in waiving further habeas proceedings, or the right to be competent at the time of execution. The new ‘right’ is not provided by either the Constitution or any statute. It is

Continue Reading 28

When Judges Decide Against Type

The U.S. Court of Appeals for the Sixth Circuit has been one of the more divided appellate courts, particularly when it comes to habeas cases. Ideological splits on the court are common in such cases, especially so in capital cases or when claims of ineffective assistance of counsel are raised. Some judges on the Sixth Circuit are notorious for liberally granting ineffective assistance of counsel claims, while others are known for approaching any such claims with extreme skepticism. But it would be a mistake to assume that the judges on the Sixth Circuit (or any Circuit, for that matter) simply vote their ideological preferences or reflexively support or oppose certain types of claims without regard for the legal merits.

Case in point is today’s decision in Hardaway v. Robinson. Holland Hardaway was convicted of murder and given consecutive 40 to 80 year prison terms. Hardaway filed a habeas petition to challenge his conviction alleging, among other things, the ineffective assistance of counsel. Hardaway drew a fairly conservative panel — Judges Batchelder, Rogers and Kethledge. This would doom his ineffective assistance claim, right? Not in this case. In an opinion by Judge Rogers, the panel unanimously concluded that Hardaway had been denied the effective assistance of counsel, and that this violation was not cured by Hardaway’s subsequent ability to challenge his conviction in collateral state proceedings. [...]

Continue Reading 25

Sixth Circuit Panel for Health Care Litigation

A notice on the website for the U.S. Court of Appeals for the Sixth Circuit announces that the three-judge panel to hear the appeal in Thomas More Law Center v. Obama, another challenge to the constitutionality of the individual mandate, will consist of Circuit Judges Boyce F. Martin, Jr. and Jeffrey S. Sutton, and District Court  Judge James L. Graham, of the Southern District of Ohio, sitting by designation.  The argument is scheduled for the afternoon of June 1.  Audio of the argument will be posted on the court’s website later that day.

[Thanks to Professor Kent Barnett for the tip.] [...]

Continue Reading 38

Is the Sixth the New Ninth?

The Cincinnati Enquirer reports on the string of cases in which the Supreme Court has reversed the U.S. Court of Appeals for the Sixth Circuit.  As the Enquirer story notes, the Sixth Circuit has batted 0-15 over the past three Supreme Court terms.  This is quite remarkable. No other Circuit has been reversed so consistently over this period.  As I noted here, it’s also quite unusual to see a single Circuit reversed so consistently in a single area, such as criminal procedure and habeas rights, as the Sixth was last term.

What’s causing the Sixth Circuit’s poor record?  I am reluctant to read too much into the numbers, as it could be just dumb luck.  The Supreme Court reverses more often than it affirms lower court opinions, and the number of cases is small enough that it’s not clear they establish a trend.  That said, I would offer some observations:

  • Some of the judges on the Sixth Circuit are unquestionably out-of-step with the Supreme Court on habeas review, and this likely accounts for the high number of recent reversals in habeas cases.
  • The lack of collegiality among a handful of the judges on the Sixth Circuit likely plays a role as well.  It’s not just that some of the judges on the court don’t work well together.  Rather, it is clear that some of the judges do not trust all of their colleagues — some have said as much in print — and this lack of trust could make it more difficult to resolve disagreements about what existing law requires in specific cases.  These sorts of discussions require that the participants believe all are operating in good faith.

If I am correct, then I would expect the Sixth Circuit’s record to improve in the years ahead.  There’s only so [...]

Continue Reading 19

Wrong But Not En Banc Worthy

Last week, the U.S. Court of Appeals for the Sixth Circuit denied a petition for rehearing en banc in Mitts v. Bagley, a habeas case in which a divided panel granted a writ of habeas corpus on the grounds that the jury instructions were unconstitutional under the standard set forth in Justice Stevens sole concurring opinion in Smith v. Spisak.  Interestingly enough, the order denying rehearing was accompanied by an opinion concurring in the petition denial explaining why the case was not en banc-worthy, even though it was incorrect.

The opinion by Judge Sutton, which whom Judge Kethledge, declares up front that “with all respect to the panel majority, this case was not decided correctly,” and proceeds to explain the initial panel’s mistake.  The second part of Judge Sutton’s opinion,however, explains that a three-judge panel’s error, by itself, does not justify en banc review.  As he explains:

While the Federal Rules of Appellate Procedure provide one option—en banc rehearing—it is not a preferred one.  En banc rehearing is “not favored and ordinarily will not be ordered.” Fed. R. App. P. 35(a).  “The decision to grant en banc consideration is unquestionably among the most serious non-merits determinations an appellate court can make, because it may have the effect of vacating a panel opinion that is the product of a substantial expenditure of time and effort by three judges and numerous counsel.  Such a determination should be made only in the most compelling circumstances.” . . .

Most of the traditional grounds for full court review are not “compelling” here. There is no circuit split.  No other circuit to my knowledge (or for that matter to the parties’ knowledge) has invoked this ground for relief or otherwise disagreed with it. This is not an important federal question, at least under

Continue Reading 13

Buying Your Vote Back

In many states, convicted felons lose the right to vote, at least temporarily. In Tennessee, restoration of a felon’s voting rights is conditioned upon payment of court-ordered victim restitution and child support obligations. Is this unconstitutional? A divided panel of the U.S. Court of Appeals for the Sixth Circuit thinks not. In Johnson v. Bredesen, Judge Cook, joined by district judge Ludington (sitting by designation) rejected claims that the Tennessee requirement violates the 14 Amendment’s Equal Protection Clause, the 24th Amendment, and the Ex Post Facto and Privileges or Immunities Clauses of the United States and Tennessee Constitutions. Judge Moore penned a 39-page dissent which begins:

A state under current law may curtail a felon’s right to vote, or even forever deny it, but once a state enacts a process by which a felon may regain suffrage, that process must comport with the demands of the Constitution. Contrary to the majority’s conclusion, I would hold that Tennessee Code § 40-29-202(b) and (c) violate the Equal Protection Clause of the U.S. Constitution and the Ex Post Facto Clause of the Tennessee Constitution. I further believe that the Plaintiffs have alleged sufficient factual matter to state a claim for relief under the Twenty-Fourth Amendment to the U.S. Constitution such that dismissal on the pleadings was improper. For the following reasons, I must respectfully dissent.

Tennessee Code § 2-19-143 and § 40-20-112 disenfranchise all persons who have been convicted of “infamous” crimes, i.e., felonies. Those felons denied the right to vote are “eligible to apply for a voter registration card and have the right of suffrage restored” if they receive a pardon, are discharged from custody after serving the maximum sentence imposed, or are granted a final discharge from supervision by the relevant county, state, or federal authority. Tenn. Code Ann. §

Continue Reading 27

Is the Sixth Now the “Most Reversed” Circuit?

The Daily Journal reports that the U.S. Court of Appeals for the Sixth Circuit has gone 0-5 before the Supreme Court this term.  As I noted here, all five cases were pro-prisoner habeas cases.  The article discusses the role of the Michigan AG’s office in encouraging the Supreme Court to review the Sixth Circuit’s habeas handiwork.

As for why the Supreme Court suddenly became interested in 6th Circuit habeas rulings, court-watchers say part of the reason is that Michigan Solicitor General Eric Restuccia went to great lengths to flag the issue in his briefs. Of the five 6th Circuit habeas cases decided this term, three were out of Michigan.

In five briefs filed last year, Restuccia mentioned the other petitions he was filing in an attempt to highlight the failure of the 6th Circuit to follow habeas corpus rules as revised by Congress in the Antiterrorism and Effective Death Penalty Act back in 1996.

“These cases evidence a pattern by the 6th Circuit of usurping the role of the State courts by failing to properly apply the AEDPA,” he wrote in a passage that appeared in all five briefs.

Joy Yearout, a spokeswoman for the Michigan Attorney General’s office, said Thursday that the state is “going to keep filing petitions as long as the 6th Circuit continues its pattern of failure to accord proper deference to state court determinations.”

One has already been filed and another will be filed in the coming weeks, she added.

The Michigan AG’s office is not alone.  Prosecutors within the Sixth Circuit are well aware that some of the Circuit’s judges are out-of-step with existing Supreme Court precedent on habeas.  Now that the Supreme Court appears to be aware of this as well, I would expect state AGs to become increasingly aggressive at seeking [...]

Continue Reading 56