Justia Criminal Law Opinion Summaries

The court vacated its order on January 20, 2016, and replaced it with this order. Petitioner filed a pro se application for authorization to file a second or successive 28 U.S.C. 2255 motion to vacate, set aside, or correct his federal sentence. Petitioner's application relies in part on the Supreme Court's decision in Johnson v. United States. The court recently granted certiorari in Welch v. United States. The court recognizes that it will likely take the Supreme Court longer than 30 days from now to decide Welch. The court joined its sister circuits and held that this 30-day timeframe is not mandatory in all circumstances. Therefore, the court held petitioner's application in abeyance, pending the Supreme Court's decision in Welch. View "In re: Anthony Johnson" on Justia Law

Defendant was convicted of videotaping his teenage stepdaughter performing her daily bathroom routine, without her knowing it, over a period of five months. On appeal, defendant challenged his convictions and sentences for one count of production or attempted production of child pornography in violation of 18 U.S.C. 2251(a) and one count of possession of child pornography in violation of 18 U.S.C. 2252(a)(4)(B). The court joined the Eighth, Ninth, and Tenth Circuits and held that a lascivious exhibition may be created by an individual who surreptitiously videos or photographs a minor and later captures or edits a depiction, even when the original depiction is one of an innocent child acting innocently. Viewing the evidence in the light most favorable to the government, a reasonable jury could have found that defendant’s conduct - including placement of the cameras in the bathroom where his stepdaughter was most likely to be videoed while nude, his extensive focus on videoing and capturing images of her pubic area, the angle of the camera set up, and his editing of the videos at issue - was sufficient to create a lascivious exhibition of the genitals or pubic area. Accordingly, the court affirmed the conviction. View "United States v. Holmes" on Justia Law

Petitioner pleaded guilty to the crime of lewd or lascivious molestation of a victim who was less than 12 years old. At issue is whether a petition for a belated direct appeal, under Florida Rule of Appellate Procedure 9.141(c), qualifies as an “application for State . . . collateral review,” 28 U.S.C. 2244(d)(2), that, while pending, tolls the period of limitation for a Florida prisoner’s federal petition for a writ of habeas corpus. The court answered the question in the negative, relying on its recent decision in Espinosa v. Secretary, Department of Corrections. In Espinosa, the court held that a petition for belated postconviction appeal under Rule 9.141(c) does not “involve ‘collateral review’ of [a] conviction” for the purpose of tolling the same statute of limitation. In this case, the petition does not qualify as an application for state collateral review. Accordingly, the court dismissed the petition as untimely. View "Danny v. Secretary, FL Dept. of Corr." on Justia Law

Petitioner, a Florida prisoner, appealed the district court's dismissal of his 28 U.S.C. 2254 habeas corpus petition as second or successive under 28 U.S.C. 2244(b). The court concluded that, under the court's prior decision in Insignares v. Secretary, petitioner's section 2254 petition is not second or successive within the meaning of section 2244(b). The court concluded that, as in Insignares, the state trial court’s grant of petitioner’s Rule 3.800 motion and its vacatur of the punishment of chemical castration from the original sentence constituted a resentencing that resulted in a new judgment, even though petitioner’s total custodial term (life in prison) remained the same, and even though the current habeas corpus petition challenges only the underlying convictions. Accordingly, the court reversed and remanded. View "Patterson v. Secretary, FL Dept. of Corr." on Justia Law

Petitioner, convicted of murder and robbery, moved the court to recall its 2014 mandate denying his petition for habeas corpus relief and to reconsider his original habeas petition after the full Court issues an en banc decision in a different, although currently pending case, Wilson v. Warden, Georgia Diagnostic Prison. The court concluded that it was foreclosed by the Antiterrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C. 2244(b), and Supreme Court precedent from recalling the mandate denying habeas relief; even if the court were not foreclosed and examined the merits of his motion, the court would still deny it because, regardless of how Wilson is decided, petitioner’s claim is without merit; and, even if the court could recall the mandate, the court's respect for the State of Georgia’s interest in the finality of its criminal judgments would strongly counsel against doing so. Further, the court denied petitioner's motion to stay his execution because, regardless of how Wilson is decided, petitioner has not shown a substantial likelihood that he will prevail on the merits of his underlying claim View "Jones v. GDCP Warden" on Justia Law

Petitioner, guilty of 35 counts arising from his role in armed robberies of fast food restaurants, appealed the district court's denial of his 28 U.S.C. 2254 petition for writ of habeas corpus. The court concluded that appellate counsel rendered ineffective assistance in failing to argue that there was insufficient evidence to support defendant's kidnapping convictions in light of Garza v. State. Accordingly, the court reversed and remanded with instructions for the district court to issue the writ. View "Overstreet v. Warden" on Justia Law

Defendant appealed his conviction and sentence for eight counts of armed robbery in violation of 18 U.S.C. 1951(a) and eight counts of carrying, using, and brandishing a weapon in violation of 18 U.S.C. 924(c)(1)(A)(ii). The district court sentenced defendant to 150 months for the section 1951(a) violations and to a mandatory 182 years for the section 924(c) violations, to run consecutively. The court concluded that, because defendant cannot demonstrate that he suffered compelling prejudice from the joinder of claims, the district court did not commit error, much less plain error, in denying his motion; the evidence was sufficient to convict defendant; and defendant's sentence for the section 924(c) violations does not violate the separation of powers, due process and equal protection, nor the Eighth Amendment. Accordingly, the court affirmed the conviction and sentence. View "United States v. Bowers" on Justia Law

Defendant appealed his sentence under the three-strikes statute pursuant to the Armed Career Criminal Act (ACCA), 18 U.S.C. 924(e). The district court counted defendant's two earlier South Carolina burglary convictions using the definition in the ACCA’s “enumerated clause,” which covers any “burglary” that is “punishable by imprisonment for a term exceeding one year.” The court concluded that the district court erred in doing so because the enumerated clause does not cover state burglary offenses whose elements are broader than the generic definition of burglary. In this case, South Carolina’s burglary offense is broader than generic burglary and does not divide into multiple, alternative offenses. Therefore, federal sentencing courts cannot know if someone convicted of South Carolina burglary was convicted of generic burglary. Accordingly, the court reversed the sentence. View "United States v. Lockett" on Justia Law

Petitioner filed a pro se application for authorization to file a second or successive 28 U.S.C. 2255 motion to vacate, set aside, or correct his federal sentence. Petitioner's application relies in part on Johnson v. United States. The Supreme Court recently granted certiorari in Welch v. United States to decide whether Johnson announced a new substantive rule of constitutional law that applies retroactively to cases that are on collateral review. The court held petitioner's case in abeyance until the Supreme Court decides Welch because petitioner's petition raises the question that will be decided in Welch. Finally, the court agreed with its sister circuits and held that the 30-day timeframe specified by 28 U.S.C. 2244(b)(3)(D) is not mandatory. View "In re: Anthony Johnson" on Justia Law

Defendant appealed his conviction of five counts of filing false tax returns, three counts of using an unauthorized access device, and two counts of aggravated identity theft. The court rejected defendant's contention that the tax counts were improperly joined with the access device and identity theft counts under Federal Rule of Criminal Procedure 8(a) where defendant has not shown that he suffered actual prejudice from the joinder of the claims. Further, defendant has failed to show compelling prejudice and the court will not reverse for failure to sever under Rule 14(a). The court also rejected defendant's contention that two statements made by the government’s tax expert during his testimony violated his Fifth Amendment right to remain silent and also improperly shifted the government’s burden of proof. The court concluded that, taken in context, neither statement was an impermissible comment on defendant’s right to remain silent. Nor did the comments improperly shift the burden of proof. Finally, the court concluded that the evidence was sufficient to convict defendant and his sentence was not procedurally unreasonable. The court affirmed the convictions and sentence. View "United States v. Zitron" on Justia Law