by
Hudson was shot and killed; the gun was not recovered. Riley was charged with first-degree murder and being an armed habitual criminal. The judge severed the armed habitual criminal count and proceeded with the murder trial. In finding Riley not guilty of murder, the jury found that the prosecution had not proven “that during the commission of the offense of first-degree murder the defendant personally discharged a firearm that proximately caused death.” Three of the same witnesses testified at the armed habitual criminal trial before the same judge. The parties stipulated that Riley had two qualifying prior convictions, leaving the judge to decide only whether Riley possessed a gun. Defense counsel pointed out the inconsistencies in the stories of the state’s witnesses and noted that none of them could describe the gun allegedly possessed by Riley, despite identifying him as the shooter. The judge found Riley guilty. On direct appeal, the court ruled that the state was not collaterally estopped from prosecuting Riley as an armed habitual criminal because whether he had possessed a gun was not decided at his murder trial. The Seventh Circuit affirmed the denial of habeas relief. did not unreasonably apply clearly established federal law in rejecting his collateral estoppel claim. View "Riley v. Calloway" on Justia Law

by
Lemons called 911 to report vandalism. Officer Cates and his partner responded. Cates and Lemons were left alone in her home. Lemons claimed that Cates raped her; Cates claimed that they had consensual sex. Cates was charged with depriving Lemons of her civil rights and carrying a firearm in relation to that crime. The civil-rights charge was premised on the sexual assault. The government also alleged aggravated sexual abuse, which increased the maximum penalty to life in prison. A jury convicted Cates on the civil-rights count, acquitted him on the firearm count, and found that he committed aggravated sexual abuse. Cates’s lawyer withdrew. His new lawyer unsuccessfully moved to extend the deadline for post-verdict motions, which had expired months earlier. Cates was sentenced to 24 years. The new lawyer represented Cates on appeal but, unsuccessfully, challenged only the denial of his request concerning post-verdict motions. Seeking collateral relief, Cates alleged that his trial and appellate counsel were constitutionally ineffective for failing to challenge a jury instruction. The Seventh Circuit reversed denial of the petition. The judge improperly instructed the jury that “force” includes not just physical force but also psychological coercion and may even be inferred from a disparity in size. There is a reasonable probability that a properly-instructed jury would find the evidence insufficient to prove aggravated sexual abuse, which would cap Cates’s maximum penalty at one year. View "Cates v. United States" on Justia Law

by
The Eleventh Circuit affirmed the district court's application of a fifteen year mandatory minimum sentence under the Armed Career Criminal Act (ACCA), 18 U.S.C. 924(e)(1) and 924(e)(2)(B), to defendant's sentence. The court held that defendant's argument that aggravated assault under Fla. Stat. 784.021 and resisting an officer with violence under Fla. Stat. 843.01 were not violent felonies was foreclosed by circuit precedent. The court also held that a conviction for sexual battery with a deadly weapon under Fla. Stat. 794.011(3) was a conviction for a violent felony under the ACCA's elements clause. Therefore, defendant had the three qualifying prior felony convictions under the ACCA. View "United States v. Deshazior" on Justia Law

by
The Eleventh Circuit affirmed the district court's application of a fifteen year mandatory minimum sentence under the Armed Career Criminal Act (ACCA), 18 U.S.C. 924(e)(1) and 924(e)(2)(B), to defendant's sentence. The court held that defendant's argument that aggravated assault under Fla. Stat. 784.021 and resisting an officer with violence under Fla. Stat. 843.01 were not violent felonies was foreclosed by circuit precedent. The court also held that a conviction for sexual battery with a deadly weapon under Fla. Stat. 794.011(3) was a conviction for a violent felony under the ACCA's elements clause. Therefore, defendant had the three qualifying prior felony convictions under the ACCA. View "United States v. Deshazior" on Justia Law

by
The Ninth Circuit affirmed the denial of habeas relief for petitioner, who was criminally convicted in both state and federal court. Petitioner argued that his federal sentence actually commenced on one of the instances when the state prematurely transferred him to the federal authorities, and thus he should receive credit against his federal sentence for the period starting on the date he was erroneously turned over to federal authorities and including all his time in state prison after he was returned to state custody. The panel explained that because the state credited the time the federal authorities erroneously held petitioner against his state sentence, he effectively sought double-credit against both his state and federal sentences for the period between August 2009 and June 2011. The panel held that because these erroneous transfers did not manifest the state's consent to terminate its primary jurisdiction over petitioner, he was not in federal custody for purposes of 18 U.S.C. 3585(a), and therefore the federal sentence did not commence. View "Johnson v. Gill" on Justia Law

by
The Ninth Circuit affirmed the denial of habeas relief for petitioner, who was criminally convicted in both state and federal court. Petitioner argued that his federal sentence actually commenced on one of the instances when the state prematurely transferred him to the federal authorities, and thus he should receive credit against his federal sentence for the period starting on the date he was erroneously turned over to federal authorities and including all his time in state prison after he was returned to state custody. The panel explained that because the state credited the time the federal authorities erroneously held petitioner against his state sentence, he effectively sought double-credit against both his state and federal sentences for the period between August 2009 and June 2011. The panel held that because these erroneous transfers did not manifest the state's consent to terminate its primary jurisdiction over petitioner, he was not in federal custody for purposes of 18 U.S.C. 3585(a), and therefore the federal sentence did not commence. View "Johnson v. Gill" on Justia Law

by
A jury convicted Defendant Christopher Pernell of several charges, including burglary, kidnapping, and sexual assault. The prosecution alleged that Pernell showed up at his ex-wife’s house uninvited; forced his way into her home; threatened her and her boyfriend at gunpoint; forced her to have sexual intercourse; and prevented her from fleeing. At trial, the prosecution presented multiple witnesses, including the ex-wife, the boyfriend, and a police officer who investigated the incident, as well as corroborating physical evidence. Pernell did not testify or present evidence at trial. His theory of defense was that the ex-wife and the boyfriend fabricated the story of the incident. Consistent with this theory, defense counsel told the jury during opening statements that the incident, as described by the ex-wife and the boyfriend, “didn’t happen” and that the ex-wife and the boyfriend “concoct[ed] their story to get [Pernell] out of their lives.” An officer who testified at trial recounted the ex-wife’s description of the incident to him. Pernell objected to this testimony, arguing that the ex-wife’s out-of-court statements to the officer constituted inadmissible hearsay. The trial court admitted these statements as excited utterances. On appeal, Pernell argued, among other things, that the trial court had reversibly erred in admitting the ex-wife’s statements. The court of appeals affirmed, reasoning that defense counsel’s opening statement that the ex-wife fabricated her story opened the door for the admission of her out-of-court statements. However, upon review of the trial record, the Colorado Supreme Court concluded any error in the admission of the ex-wife’s out-of-court statements was harmless because there was no reasonable possibility that the admission of these statements contributed to Pernell’s conviction. The Court declined to address whether defense counsel’s opening statement opened the door to the admission of the ex-wife’s out-of-court statements, affirming on difference grounds as the appellate court. View "Pernell v. Colorado" on Justia Law

by
A jury convicted Defendant Christopher Pernell of several charges, including burglary, kidnapping, and sexual assault. The prosecution alleged that Pernell showed up at his ex-wife’s house uninvited; forced his way into her home; threatened her and her boyfriend at gunpoint; forced her to have sexual intercourse; and prevented her from fleeing. At trial, the prosecution presented multiple witnesses, including the ex-wife, the boyfriend, and a police officer who investigated the incident, as well as corroborating physical evidence. Pernell did not testify or present evidence at trial. His theory of defense was that the ex-wife and the boyfriend fabricated the story of the incident. Consistent with this theory, defense counsel told the jury during opening statements that the incident, as described by the ex-wife and the boyfriend, “didn’t happen” and that the ex-wife and the boyfriend “concoct[ed] their story to get [Pernell] out of their lives.” An officer who testified at trial recounted the ex-wife’s description of the incident to him. Pernell objected to this testimony, arguing that the ex-wife’s out-of-court statements to the officer constituted inadmissible hearsay. The trial court admitted these statements as excited utterances. On appeal, Pernell argued, among other things, that the trial court had reversibly erred in admitting the ex-wife’s statements. The court of appeals affirmed, reasoning that defense counsel’s opening statement that the ex-wife fabricated her story opened the door for the admission of her out-of-court statements. However, upon review of the trial record, the Colorado Supreme Court concluded any error in the admission of the ex-wife’s out-of-court statements was harmless because there was no reasonable possibility that the admission of these statements contributed to Pernell’s conviction. The Court declined to address whether defense counsel’s opening statement opened the door to the admission of the ex-wife’s out-of-court statements, affirming on difference grounds as the appellate court. View "Pernell v. Colorado" on Justia Law

by
Michael, a licensed pharmacist at Chapmanville's Aracoma Pharmacy, separately co-owns another West Virginia pharmacy and one in Pennsylvania. The government suspected that Michael used the pharmacies to distribute on-demand prescription drugs, worth more than $4 million, over the Internet. A grand jury returned a multi-count indictment. Count 7 charged Michael with fraudulently submitting a claim for payment to Humana for dispensing medication that was never dispensed (18 U.S.C. 1347). Count 8 charged him with committing aggravated identity theft by using the “identifying information” of a doctor and a patient “in relation to the [health care fraud] offense” (18 U.S.C. 1028A(a)(1), (c)(11)). Michael had submitted a claim to Humana indicating that A.S. (doctor) had prescribed Lovaza for P.R., including the doctor’s National Provider Identifier and the patient’s name and birth date. A.S. was not P.R.’s doctor and did not issue the prescription. Section 1028A requires a person to “assume the identity” of someone else; the district court held that the statute covered only “impersonation,” and dismissed Count 8. The Sixth Circuit reversed. To “use” a means of identification is to “convert to one’s service” or “employ” the means of identification. Michael used A.S. and P.R.’s identifying information to fashion a fraudulent submission, making the misuse of these means of identification “during and in relation to” healthcare fraud. View "United States v. Michael" on Justia Law

by
Michael, a licensed pharmacist at Chapmanville's Aracoma Pharmacy, separately co-owns another West Virginia pharmacy and one in Pennsylvania. The government suspected that Michael used the pharmacies to distribute on-demand prescription drugs, worth more than $4 million, over the Internet. A grand jury returned a multi-count indictment. Count 7 charged Michael with fraudulently submitting a claim for payment to Humana for dispensing medication that was never dispensed (18 U.S.C. 1347). Count 8 charged him with committing aggravated identity theft by using the “identifying information” of a doctor and a patient “in relation to the [health care fraud] offense” (18 U.S.C. 1028A(a)(1), (c)(11)). Michael had submitted a claim to Humana indicating that A.S. (doctor) had prescribed Lovaza for P.R., including the doctor’s National Provider Identifier and the patient’s name and birth date. A.S. was not P.R.’s doctor and did not issue the prescription. Section 1028A requires a person to “assume the identity” of someone else; the district court held that the statute covered only “impersonation,” and dismissed Count 8. The Sixth Circuit reversed. To “use” a means of identification is to “convert to one’s service” or “employ” the means of identification. Michael used A.S. and P.R.’s identifying information to fashion a fraudulent submission, making the misuse of these means of identification “during and in relation to” healthcare fraud. View "United States v. Michael" on Justia Law