Articles Posted in US Court of Appeals for the Fifth Circuit

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The Fifth Circuit granted defendant's motions to recall the mandate and for leave to file an out-of-time petition for panel rehearing in light of United States v. Herrold, 883 F.3d 517 (5th Cir. 2018) (en banc). The court held that recalling the mandate was appropriate because Herrold has rendered the court's previous decision affirming defendant's sentence demonstrably wrong; failure to recall the mandate would produce an unwarranted disparity between him and similarly situated defendants in other cases; and defendant demonstrated diligence in asserting his claim. The court also granted the public defender's motion to be reappointed as defendant's counsel on appeal. View "United States v. Montalvo Davila" on Justia Law

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The Fifth Circuit granted a petition for review of the BIA's decision determining petitioner's conviction of online solicitation of a minor was an aggravated felony that subjected him to removal. The court held that Esquivel-Quintana v. Sessions, 137 S. Ct. 1562 (2017), abrogated the court's previous definition of a minor in this context. Esquivel-Quintana established an age requirement that rendered petitioner's statute of conviction overbroad and did not qualify as sexual abuse of a minor for purposes of removability. Therefore, the court reversed the decision of the BIA and remanded for further proceedings. View "Shroff v. Sessions" on Justia Law

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The Fifth Circuit granted a petition for review of the BIA's decision determining petitioner's conviction of online solicitation of a minor was an aggravated felony that subjected him to removal. The court held that Esquivel-Quintana v. Sessions, 137 S. Ct. 1562 (2017), abrogated the court's previous definition of a minor in this context. Esquivel-Quintana established an age requirement that rendered petitioner's statute of conviction overbroad and did not qualify as sexual abuse of a minor for purposes of removability. Therefore, the court reversed the decision of the BIA and remanded for further proceedings. View "Shroff v. Sessions" on Justia Law

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The Fifth Circuit reversed the district court's denial of petitioner's habeas petition and remanded with directions to issue the writ, holding that the verdict from petitioner's second trial necessarily determined that the State failed to prove beyond a reasonable doubt that he acted with specific intent to kill or to inflict great bodily harm. Therefore, the State was constitutionally barred from prosecuting him for any crime having that same issue as an essential element. In this case, petitioner's second degree murder conviction from his third trial was thus invalid. Under clearly established Supreme Court precedent, second degree murder as defined in La. R.S. 14:30.1(A)(1) was not be a crime in which the State could constitutionally prosecute petitioner. View "Langley v. Prince" on Justia Law

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The Fifth Circuit affirmed defendant's conviction and sentence for conspiracy to bring in, transport, and harbor an alien resulting in death and one count of transporting an alien within the United States for private financial gain and resulting in death. The court held that the evidence was sufficient to support defendant's conviction where he acted in furtherance of the victim's unlawful presence in the country, he acted for the purpose of financial gain, the victim being struck by a vessel was reasonably foreseeable where she swam across a high traffic ship channel in the dark of night, and his conduct was the but-for cause of her death. The court also held that the district court did not abuse its discretion by applying sentencing enhancements under USSG 2L1.1(b)(6) for creating a substantial risk of death or serious bodily harm and USSG 2L1.1(b)(7) for the resulting death. View "United States v. Ruiz-Hernandez" on Justia Law

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The Fifth Circuit affirmed the district court's denial of habeas relief to petitioner, who was convicted of the first degree murder of her young children. The court held that petitioner did not meet her burden to prove that the State used its peremptory strikes with the intent to discriminate against women and thus she failed to show that her attorney's representation was prejudicial when he did not object to the State's use of its peremptory strikes. The court also held that petitioner failed to prove that she was insane by a preponderance of the evidence and thus the state court's decision was not an objectively unreasonable application of law. View "Hebert v. Rogers" on Justia Law

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The Fifth Circuit vacated in part and remanded in part defendant's 51 month sentence for conspiracy to maintain a chop shop. The court held that defendant was not "in the business" of receiving and selling stolen property and thus the district court erroneously applied a two level sentencing enhancement under USSG 2B6.1(b)(2). The court affirmed the district court's application of a two level enhancement for a leadership role under USSG 3B1.1(c). The court held that it did not have jurisdiction to review the sentencing court's refusal to grant a downward departure under USSG 5H1.11 based on defendant's prior military service where the record did not suggest the district court based its decision on an erroneous belief that it lacked the authority to depart. Accordingly, the court dismissed as to this issue. View "United States v. Fillmore" on Justia Law

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The Fifth Circuit denied petitioner a certificate of appealability (COA) to challenge the denial of his petition for habeas corpus under 28 U.S.C. 2254. In this case, petitioner requested a COA on whether he demonstrated a fundamental miscarriage of justice by raising a meritorious actual-innocence claim under Schlup v. Delo, 513 U.S. 298 (1995). The court held that petitioner failed to show that reasonable jurists would disagree with the district court's ruling that his claims were procedurally defaulted. Furthermore, the court held that no reasonable jurist would disagree that he failed to prove actual innocence and therefore he could not overcome procedural default. View "Fratta v. Davis" on Justia Law

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Plaintiff challenged the district court's denial of her request to receive a certificate described in 28 U.S.C. 2513 from the district court that set aside the conviction. In this case, defendant was convicted of and imprisoned for various federal crimes, only to have her conviction set aside ten years later for ineffective assistance of counsel. The court held that the statute made clear, and the court's case law supported, that plaintiff must show that the district court vacated her conviction because she was not guilty—not just that the district court discussed her innocence, or even mentioned that it thought she was not guilty. Because plaintiff's conviction was set aside on procedural grounds, she failed to satisfy section 2513(a)(1). Therefore, plaintiff failed to identify any reversible error in the district court's denial of her certificate. View "Hernandez v. United States" on Justia Law

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The Fifth Circuit denied motions for authorization to file a successive habeas petition under 28 U.S.C. 2244, and for a stay of execution. Movant was sentenced to death after he used a semiautomatic assault rifle to open fire on a children's birthday party, injuring party attendees and killing a grandmother and her five year old granddaughter. The court held that movant failed to make a prima facie showing that the factual predicate for his new habeas claim could not have been discovered through the exercise of due diligence and thus could not have been included in his first federal petition. The court also held that he failed to make a prima facie showing that, based on the testimony at issue, no reasonable juror would have found him guilty; movant's claim was not dismissed on the basis of an independent and adequate state procedural ground; and the Brady claim movant wished to raise with the district court was therefore alternatively time-barred. View "In Re: Erick Davila" on Justia Law