Monday, September 2, 2019

Tenth Circuit Breviaries

Last week at the Tenth Circuit:

A sentence increase after the defendant complains

In United States v. Wallace (unpublished), the district court sentenced Mr. Wallace to 6 months' imprisonment for supervised release violations, saying, "I'm looking forward to when you get out because I want to see what you can do." Mr. Wallace interrupted (more than once) as the court continued, and complained that the court was setting him up for failure. The district court warned: "we can revisit my sentence"; Mr. Wallace replied: "let's revisit it." The district court took a 10-minute recess and came back and resentenced Mr. Wallace to 10 months' imprisonment.

On appeal, counsel filed an Anders brief and the Tenth Circuit held that (1) the district court did not lose jurisdiction over Mr. Wallace's sentence between the time of its initial announcement and its revised announcement; and (2) "[w]e see no reason to interpret the within-guidelines sentence as a punishment for interrupting instead of a reasonable sentence in line with the government’s recommendation." Appeal dismissed.

USSG § 2G1.1(b)(1) (4-level enhancement for coercive behavior)

"[F]or the purpose of applying Guideline § 2G1.1(b)(1), the defendant must have coerced the Victim as part of the offense, and . . . the language 'occurs as part of the offense' includes any conduct for which the defendant is accountable under Guideline § 1B1.3 (Relevant Conduct)." United States v. Sweargin.


The right to a § 2255 hearing to prove counsel's failure to consult about an appeal

In United States v. Herring, the Tenth Circuit held that the district court erred in denying, without an evidentiary hearing, Mr. Herring's claim that his trial counsel's failure to consult with Mr. Herring about an appeal constituted ineffective assistance of counsel.

Mr. Herring alleged that when he told counsel that he was interested in appealing, counsel responded that he (counsel) did not do appellate work, and that Mr. Herring would have to find new counsel. If true, this would be deficient performance:

"Trial attorneys cannot outsource their constitutional obligation to advise their clients about filing an appeal nor their duty to make a reasonable effort to discover their clients’ wishes. Once the duty to consult is invoked by a defendant expressing interest in appealing, trial attorneys must properly advise their client and assess their client’s wishes before withdrawing from the case."

Case remanded for an evidentiary hearing.

A complicated § 2254 case

Read Harmon v. Sharp (affirming denial of § 2254 relief in Oklahoma capital case) to learn more about:

  • State procedural bars/cause & prejudice (especially out of Oklahoma).
  • "Separate counsel" for purposes of raising an IAC claim.
  • De novo review in § 2254 cases.
  • Cumulative error.
See also the concurring opinions for an interesting discussion of waiver/no-review versus forfeiture/plain-error-review in AEDPA appeals.

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