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TCL > December 2012 Issue > Summaries of Selected Opinions

December 2012       Vol. 41, No. 12       Page  131
From the Courts
U.S. Court of Appeals for the Tenth Circuit

Summaries of Selected Opinions

Summaries of selected Tenth Circuit Court of Appeals Opinions appear on a space-available basis. The summaries are prepared for the Colorado Bar Association (CBA) by Katherine Campbell and Frank Gibbard, licensed Colorado attorneys. They are provided as a service by the CBA and are not the official language of this Court. The CBA cannot guarantee the accuracy or completeness of the summaries. Full copies of the Tenth Circuit decisions are accessible from the CBA website: (click on "Opinions/Rules/Statutes").

No. 11-2029. United States v. Denny. 09/24/2012. D.N.M. Judge Hartz. USC § 2255 Motions—One-Year Deadline—Reliance on Counsel Who Failed to File Notice of Appeal as "Impediment" Created by Government Action—Discovery of Counsel’s Failure—Equitable Tolling.

Defendant pleaded guilty to possession with intent to distribute 500 or more grams of cocaine. On September 26, 2007, he was sentenced to 240 months’ imprisonment. This sentence represented a substantial downward variance from the Sentencing Guidelines range of 324 to 405 months. Before being escorted from the courtroom, defendant told his counsel he wanted to appeal. Counsel told him this would be unwise, because the government could cross-appeal from the downward variance and he could end up with a longer sentence. Defendant left the courthouse believing an appeal would be filed, but his counsel left the courthouse believing no appeal would be pursued.

Defendant called his counsel’s office in January or February 2008, and learned that counsel was on military duty at Guantánamo Bay, Cuba. He had wound down his law practice, and retained only a part-time paralegal, who forwarded e-mails to him, sent him a weekly log of his mail, and did some work for other attorneys in the building who had taken over some of counsel’s cases. During the telephone conversation, an unidentified man said he would have to e-mail counsel to find out whether an appeal had been filed.

Defendant then called the district court clerk’s office in September 2008 and was told that no notice of appeal had been filed in his case. He was unable to retain an attorney, but by November he had consulted an inmate in the prison law library who asked him for additional information. In January 2009, defendant finally spoke with his counsel, who advised him that no appeal had been filed. Defendant received his case file from counsel in July or August 2009, and with help from the inmate librarian, he filed a post-conviction motion pursuant to 28 USC § 2255 on November 2, 2009. In the motion, defendant alleged that counsel had provided ineffective assistance of counsel by failing to file a timely appeal. The district court dismissed the motion as untimely under the one-year limitations period for filing such a motion.

On appeal, defendant argued that the one-year limitations period should be computed from a later date than the entry of judgment in his criminal case. He relied on two provisions of the limitations statute specifying later computation dates—one making the period run from when the impediment to making such a motion created by governmental action was removed, and another making the period run from when the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.

The Tenth Circuit held that neither of these dates applied. Defendant learned in September 2008 that no appeal had been filed, but did not file his motion until November 2, 2009, more than one year later. His subjective doubts, without a reasonable basis, that the clerk was telling him the truth did not justify extending the accrual date beyond September 2008. Using the September 2008 accrual date did not wrongfully penalize him for his diligence in contacting the court clerk; it is the defendant’s diligence after he or she acquires the information that matters. Also, defendant’s claim of "actual innocence" of his sentence did not serve to extend the accrual date; one cannot be innocent of a non-capital sentence. Counsel’s failure to file the notice of appeal did not permit defendant to rely on a government-created impediment removed at a later date; even assuming his own mistaken reliance on counsel’s actions represented such an impediment, it was removed once he was notified of his attorney’s failure to file a notice of appeal, which occurred more than a year before he filed his motion. The Circuit also rejected defendant’s arguments that the time period should be equitably tolled because he was misled by the inmate librarian; because he lacked access to his legal materials, the law library, and the inmate librarian while he was in administrative segregation for a four-month period; and because his counsel’s office was slow to respond to his document requests. The Circuit affirmed the dismissal of his § 2255 motion for untimeliness.

No. 11-2180. Storey v. Taylor. 10/01/2012. D.N.M. Judge Tymkovich. Civil Rights—Domestic Argument—Anonymous Report—No Exigent Circumstances—Citizen Refused to Leave Home—Illegal Arrest—No Probable Cause.

Plaintiff claimed that police officers violated his civil rights when they arrested him at his home pursuant to an anonymous report of a loud domestic argument. By the time the officers arrived at plaintiff’s home, the argument had ended and his wife had left the premises. When plaintiff refused an order to step outside, the officers arrested him. The district court granted summary judgment in favor of the officers.

The Tenth Circuit held that the officers did not have probable cause to order plaintiff to step outside his home and, when he refused to do so, to arrest him. The order to step out of the house was not a lawful order, and plaintiff’s refusal to obey could not justify the arrest. Although exigent circumstances or community-safety concerns could support a seizure, these exceptions did not apply. The Circuit held that a loud argument, without more, that has ceased by the time officers arrive, does not alone demonstrate exigent circumstances to justify a warrantless arrest, nor does it show a likelihood of violence to justify a community-caretaking arrest to protect the safety of those involved. The Circuit rejected the officers’ defense of qualified immunity because plaintiff demonstrated that they violated his constitutional rights and that the rights were clearly established. The district court’s judgment was reversed and the case was remanded for further proceedings.

No. 12-1066. United States v. Vigil. 10/02/2012. D.Colo. Judge O’Brien. Supervised Release Violation—Upward Sentencing Variance—Need for "Severe or Exceptional Circumstances."

Defendant pleaded guilty to making a false statement and was sentenced to three years of probation. The special conditions of her probationary sentence required her to perform 200 hours of community service, attend parenting classes, and obtain a GED. After violating the terms of her probation, she was sentenced to six days’ time served in detention and two years of supervised release, six months of which was to be spent in a halfway house. The terms of her supervised release were similar to those of her erstwhile probation, with a few added conditions. The judge warned her that if she violated these terms, she would be sentenced to prison. Within four months, she admitted to violating the terms of her supervised release. She was sentenced to two years’ imprisonment, followed by one year of supervised release, again with similar conditions. She completed her prison sentence, was placed on supervised release, and again violated her release conditions. The district court modified the conditions and placed her in a residential treatment center. She violated the terms of this treatment center placement and was again brought before the sentencing judge, where counsel pleaded that her case be terminated, noting that her failure to comply with supervised release conditions was due to her mental health issues. The probation officer recommended a sentence of nine months’ imprisonment with no additional supervised release time, the maximum specified under the relevant Sentencing Guidelines policy statement. However, noting her long history of noncompliance, the district court varied upward and sentenced her to twelve months in prison, half of the maximum statutory sentence of twenty-four months.

On appeal, defendant argued that the sentencing judge had varied from the Guidelines without finding sufficiently exceptional justifying circumstances. The Tenth Circuit noted that the Sentencing Guidelines policy statements concerning supervised release violations are merely advisory policy statements. The district court is required to consider them, but is not bound by them. Here, based on defendant’s blatant, repeated violations of her probation and supervised release conditions, the district court determined that the three-to-nine month imprisonment range recommended in the policy statement was insufficient. The district court did not need to find severe or exceptional circumstances to impose a sentence above a range suggested in the policy statements. Moreover, the twelve-month sentence on revocation was reasonable, particularly given the failed attempts to rehabilitate defendant.

No. 11-2156. Firstenberg v. City of Santa Fe. 10/09/2012. D.N.M. Judge Holmes. Federal Court Jurisdiction—State-Law Claims Only—Anticipation of Federal Defense Insufficient—Court’s Duty to Determine Jurisdiction—Agreement of Parties Irrelevant.

Plaintiff, who acted in a pro se capacity, asserted that he suffers from a condition that requires him to avoid exposure to electromagnetic radiation, and filed a complaint in state court claiming that the City of Santa Fe was required under the City Code to regulate signal upgrades at an AT&T cell phone station. He alleged that the signal upgrades adversely affected his health. In his complaint, he anticipated that defendants would raise a preemption defense under the federal Telecommunications Act of 1966. Defendants removed the case to federal court. The federal district court entered judgment on the merits in favor of defendants. Plaintiff retained counsel and appealed.

The Tenth Circuit noted a potential jurisdictional infirmity: the complaint did not state a claim for federal question jurisdiction. The parties insisted that federal jurisdiction was proper. Nevertheless, the Circuit, exercising its responsibility to ascertain subject matter jurisdiction, determined that federal question jurisdiction was lacking. Plaintiff’s complaint stated only a state law cause of action, and the argument that compliance with the state law would vindicate federal rights was insufficient. Moreover, neither plaintiff’s anticipation of a federal defense nor defendant’s assertion of a federal defense was sufficient to make the case arise under federal law. The case was remanded to the district court with directions to vacate its judgment and remand the case to state court.

Nos. 11-4001 & 11-4058. United States v. Joe; United States v. Jones. 10/16/2012. D.Utah. Judge Holloway. Sentencing Guidelines—Application of "Use of Force" and "Restraint-of-the-Victim" Enhancements—Double Counting.

These two criminal appeals arose from the same incident, which involved a beating and sexual assault that took place on a Navajo Reservation. As a result of the incident, both defendants pleaded guilty to one count of aggravated sexual abuse. After a heavy bout of drinking involving the victim and defendants, defendant Jones and her daughter severely beat the victim until she lay helpless on the ground. The daughter then held the victim down while Jones removed her clothing. Jones then ordered defendant Joe to rape the victim. He lay on top of defendant and penetrated her vagina with his fingers. The victim lost consciousness, and awoke naked and alone in the cold night. She drove herself to the hospital.

Both defendants argued on appeal that the district court had erred by applying Sentencing Guidelines enhancements for both (1) use of force and (2) restraint of the victim. The Guidelines provide that a restraint-of-the-victim enhancement is improper where the offense guideline specifically incorporates the "restraint" factor, or where unlawful restraint is an element of the offense itself. Here, that principle required the Circuit to consider whether the restraint-of-the-victim enhancement was either specifically incorporated in the use-of-force enhancement, or whether physical restraint was an element of the crime of aggravated sexual abuse.

The Tenth Circuit concluded that incorporation not only applies when a restraint of the victim is expressly reflected in the language of the offense guideline, but where the offense conduct (here, aggravated sexual assault, committed with the use of force), specifically implicates restraint of the victim. The Circuit concluded that under its precedents it was impossible to commit the offense of aggravated sexual abuse by force without also physically restraining the victim. The district court therefore erred in applying both enhancements under the Guidelines, and defendants’ sentences were vacated and remanded for re-sentencing.

Defendant Joe also challenged the district court’s imposition of a life term of supervised release. Because defendant failed to object before the district court, this argument was reviewed for plain error. Joe pointed to a Guideline provision that limits supervised release to a three-to-five year term for a class A felony. However, the Guidelines recognize that a longer term may be imposed by a specific statute. The statute governing supervised release provides that the term for aggravated sexual abuse shall be "any term of years not less than 5, or life." Defendant argued that this statute permitted not only a five-year minimum term, but also a five-year maximum term. The Circuit held that though this may be a plausible reading of the statute in connection with the relevant Guidelines provisions, it is not so obviously correct as to demonstrate plain error.

Nos. 11-2095 & 11-2200. Martinez v. Carson. 10/17/12. D.N.M. Judge McKay. Civil Rights—Reasonable Suspicion—Further Unlawful Detention—Discovery Sanction—Cross Appeal—Notice of Appeal Untimely.

Plaintiffs filed suit, claiming they were unlawfully seized by prison employees acting as task force members with the local police. Plaintiffs contended that their civil rights were violated when they were stopped and arrested while sitting or standing outside an apartment building in a high-crime neighborhood at night. A few minutes after defendants handcuffed them, plaintiffs were turned over to the police. The district court ruled that defendants could be held liable for detaining plaintiffs only for those few minutes. During discovery, the district court issued an order suspending all discovery, but plaintiffs conducted interviews of the police officers in violation of the stay. The district court sanctioned plaintiffs by striking the interview of a police lieutenant and ordering plaintiffs to pay the cost of taking the lieutenant’s deposition.

The case proceeded to trial for the jury to decide whether defendants had reasonable suspicion of criminal activity. If so, the brief seizure was warranted as an investigative detention; if not, it was an illegal seizure. The jury found that defendants did not have reasonable suspicion and awarded each plaintiff compensatory and punitive damages of $5,000. Plaintiffs appealed, claiming the district court should not have limited defendants’ liability to the initial few minutes of custody and challenging the discovery sanction. Defendants filed a cross-appeal challenging the denial of qualified immunity and various trial rulings.

The Tenth Circuit ruled that defendants’ liability was not limited to the first few minutes of the seizure because a reasonable jury could find that the further unlawful detention would not have occurred but for defendants’ unlawful seizure of plaintiffs. Next, the Circuit affirmed the discovery sanction, finding no abuse of discretion in the minimal sanction.

Turning to the cross-appeal, the Circuit considered plaintiffs’ contention that the cross-appeal was untimely, because defendants filed their notice of appeal more than thirty days after the district court entered its final judgment. Defendants filed a timely post-judgment motion, which extended the time to appeal until after the court ruled on the motion. The district court denied the motion on July 6, 2011, but invited defendants to file another motion that included citations to the trial transcript. Defendants filed another post-judgment motion, which the district court denied on September 8, 2011. Defendants filed their notice of appeal on October 6, 2011. The Circuit ruled that the notice was too late because the thirty-day appeal time began running when the district court denied the first motion. The district court’s judgment was affirmed in part and reversed in part, and the case was remanded for a new trial. Defendants’ cross-appeal was dismissed.

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