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Lombardo, a long-time member of the Chicago Outfit, the lineal descendant of Al Capone’s gang, is serving a life sentence on his convictions for racketeering, murder, and obstruction of justice. After the Seventh Circuit affirmed his convictions and sentence on direct appeal, he retained a new attorney to argue that ineffective assistance of counsel. His new attorney misunderstood when the one-year limitations period for motions under 28 U.S.C. 2255 began running and filed Lombardo’s motion too late. The attorney represented that he miscalculated the deadline due to his mistaken belief that the statute of limitations began running only when the Supreme Court denied a petition for rehearing, not when it denied a petition for certiorari and that this error was “based on misinformation provided by a trusted paralegal.” The Seventh Circuit affirmed dismissal. An attorney’s miscalculation of a statute of limitations does not justify equitably tolling the limitations period for a motion under section 2255, even if the result is to bar a claim of ineffective assistance of trial counsel. View "Lombardo v. United States" on Justia Law

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In 2002, Barnett was charged with felony battery. At the time, Indiana courts established an “omnibus date” for substantive amendments to charges. The court set Barnett’s omnibus date so the last day for substantive amendment was December 8, 2002. In February 2003 the prosecutor added felony burglary, felony intimidation, and habitual offender charges. No one caught the error. Barnett was convicted and sentenced to 80 years’ imprisonment. Barnett’s appellate lawyer also overlooked this problem. Barnett later unsuccessfully pursued the issue in state post-conviction proceedings and in a petition under 28 U.S.C. 2254. After the district court denied his habeas petition, the Seventh Circuit granted another Indiana petitioner habeas relief on the same theory. The Seventh Circuit remanded Barnett’s case. The district court’s order on remand stated “[w]ithin 120 days of this Order, the State must either release the Petitioner or grant him leave to file a new direct appeal.” When the state had done nothing within 120 days, Barnett sought immediate release. Indiana responded that it had misunderstood the order as requiring its courts to grant a new appeal upon Barnett’s request. The state simultaneously filed a request for appeal on Barnett’s behalf and asked the court to extend the release date. The district court granted that request. The court denied a motion to amend because the Indiana Court of Appeals had granted leave for Barnett to file a new appeal. The Seventh Circuit affirmed; the district court was entitled to extend the state’s deadline. View "Barnett v. Neal" on Justia Law

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Lunn was convicted of five counts of bank fraud, 18 U.S.C. 1344, based on his operation of a Chicago investment advisory firm that advised mostly high-net-worth clients. The charges arose from Lunn’s conduct surrounding three extensions of credit by Leaders Bank, in which Lunn had invested: a line of credit he obtained for himself; a loan that Lunn arranged for former Chicago Bulls player Scottie Pippen; and a loan that Lunn arranged for Geras, a Lunn Partners client. Lunn provided false financial information with respect to his own loan; misled Pippen about the nature of the transaction and forged Pippen’s name; and forged Geras’s signature. The Seventh Circuit affirmed the convictions, rejecting Lunn’s claims that the court’s multiple intrusions into his testimony were so serious that he did not receive a fair trial and that the court erred in refusing to give a “good faith” instruction. The court instructed the jury that the government was required to prove, beyond a reasonable doubt, that Lunn “knowingly executed” a scheme to defraud “with the intent to defraud.” A good faith instruction was unnecessary. View "United States v. Lunn" on Justia Law

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In 1981, a jury found Randy McKinney guilty of first degree murder (both by premeditated killing and by felony murder), conspiracy to commit murder, robbery, and conspiracy to commit robbery for the April 1981 shooting death of Robert Bishop, Jr. In 1982, the district court sentenced McKinney to death for first degree murder, an indeterminate thirty years for conspiracy to commit murder and conspiracy to commit robbery, and fixed life for robbery. In 1997, McKinney filed a petition for habeas corpus in federal district court, and in 2009, the court ruled that he was not entitled to any relief related to the guilt phase of his state case but that he was entitled to resentencing because of the ineffective assistance of his attorney at the capital sentencing hearing. Rather than appealing the court’s decision, the State and McKinney entered into a binding sentencing agreement titled “Rule 11 Sentencing Agreement” in which they agreed that McKinney would “be sentenced to a term of fixed life without the possibility of parole for the crime of first-degree murder, concurrent with his sentences for conspiracy to commit murder, robbery and conspiracy to commit robbery.” McKinney was sentenced in accordance with the plea agreement. In 2010, McKinney filed a motion pursuant to Idaho Criminal Rule 35 to correct an illegal sentence, contending that being sentenced for both robbery and first-degree murder was barred by the state and federal double jeopardy clauses and a multiple-punishment statute that was in effect when he committed the crimes. This motion was denied. Then in 2013, McKinney moved for post-conviction relief; the State moved to dismiss this petition. The district court found no genuine issue of material fact alleged, and dismissed the petition. McKinney appealed that dismissal, but finding no error in that judgment, the Idaho Supreme Court affirmed. View "McKinney v. Idaho" on Justia Law

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In September 2012, the State charged Flores with one felony count of eluding a peace officer. Flores pled guilty to the charge. A judgment of conviction was entered, and Flores was sentenced to five years: a three-year determinate period of confinement followed by a two-year indeterminate period of confinement. The execution of the sentence was suspended and Flores was placed on probation for four years. The probation was revoked and the original sentence reinstated. However, execution of the sentence was again suspended and Flores was placed on probation again for two years. This probation was revoked and execution was suspended, during which time the district court retained jurisdiction over Flores. Roughly four months after the district court retained jurisdiction, the North Idaho Correctional Institution (NICI) filed an addendum to the presentence investigation report (NICI’s report), informing the district court that NICI had classified Flores as a security risk and removed him from the NICI facility. NICI’s report detailed Flores’s misconduct and gang-oriented behavior and recommended that the district court relinquish jurisdiction. The district court followed NICI’s recommendation and relinquished jurisdiction. Flores moved the district court to reinstate jurisdiction so that he could complete his retained jurisdiction program. The district court denied Flores’s motion. Flores appealed, but finding no reversible error, the Idaho Supreme Court affirmed. View "Idaho v. Flores" on Justia Law

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Owens, an Illinois state prisoner, filed suit under 42 U.S.C. 1983, alleging that nearly two dozen prison employees deliberately ignored his medical needs and retaliated against him for filing grievances and lawsuits. He is primarily dissatisfied with the adequacy of the toothpaste, mail supplies, and laundry detergent he received at three different prisons over a six-year period. The district court narrowed the list of defendants at screening, 28 U.S.C. 1915A, and later granted summary judgment for the remaining defendants. The Seventh Circuit affirmed. “This lawsuit is not the first one in which Owens has tossed into a single complaint a mishmash of unrelated allegations against unrelated defendants.” Owens engaged in “nearly constant” litigation during 2009 and 2010. View "Owens v. Godinez" on Justia Law

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The Supreme Court vacated Petitioner’s conviction for dealing materials harmful to minors, holding that trial counsel was ineffective in failing to assert a free speech First Amendment defense and that such a defense would have succeeded if it had been raised. The conviction stemmed from the interception of drawings Petitioner had sent to his five-year-old daughter from jail depicting Petitioner as naked and holding his daughter in the air. The district court granted summary judgment to the State on Petitioner’s petition for post-conviction relief, concluding that Petitioner suffered no prejudice because his First Amendment defense lacked merit. The Supreme Court reversed and vacated Petitioner’s conviction, holding that Petitioner’s drawing was not overtly sexual or sexually suggestive, and therefore, Petitioner’s First Amendment defense was viable. View "Butt v. State" on Justia Law

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Petitioner was convicted of murder and sentenced to death. The Fifth Circuit granted a certificate of appealability on two issues: (1) a Mills claim that the omission of a jury instruction—required under Texas law—that jurors need not agree on what particular evidence they found mitigating created a substantial risk that the jurors may have mistakenly believed mitigating evidence needed to be accepted unanimously and (2) that petitioner's trial counsel's failure to object to the missing instruction constituted ineffective assistance of counsel under Strickland v. Washington. In regard to the Mills claim, the court held that, given the record, there did not exist a reasonable likelihood or substantial probability that reasonable jurors may have thought they were precluded from considering any mitigating evidence unless all 12 jurors agreed on the existence of a particular such circumstances. Therefore, the state courts did not unreasonably apply Mills. Assuming arguendo that failing to object to the absent jury instruction was deficient performance, defendant failed to show prejudice. Accordingly, the Texas state courts' application of Strickland to defendant's ineffective assistance of counsel claims was not unreasonable. The court affirmed the denial of habeas relief. View "Young v. Davis" on Justia Law

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Defendant Jason Gutierrez was serving a 192-month term in federal prison. After the United States Sentencing Commission amended several of the guidelines under which he was sentenced, defendant filed a motion under 18 U.S.C. 3582(c)(2), asking the district court to reduce his sentence to 168 months. Instead, the district court reduced his sentence to 188 months, concluding it lacked authority to go any lower. Finding no abuse of discretion or reversible error, the Tenth Circuit affirmed. View "United States v. Gutierrez" on Justia Law

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The government appealed the sentence imposed in this kidnapping case. Defendant Joseph DeRusse, while suffering from then-undiagnosed mental health issues, kidnapped his ex-girlfriend with a BB gun, and drove her several hundred miles away from her parents’ home in Austin, Texas, intending to keep her at a bed-and-breakfast in Kansas for three weeks while he attempted to convince her to marry him. About eight hours into the kidnapping, Defendant was apprehended by a police officer on the interstate freeway in Kansas. Defendant served approximately seventy days in jail before he was released on bond. He entered a plea of guilty to the single count of kidnapping. The court announced its intention to sentence Defendant to a term of time served, to be followed by five years of supervised release. Ultimately, the government simply disagreed with the way in which the district court weighed the 18 U.S.C. 3553(a) sentencing factors and decided to impose a sentence of time-served followed by a five-year period of supervised release. The Tenth Circuit acknowledged that a valid argument could be made for a longer sentence than was imposed here. However, after a thorough review of the record on appeal, the Court could not say that the court’s thoughtful sentencing determination fell outside the range of rationally permissible choices available at sentencing. View "United States v. Derusse" on Justia Law