Expungement Criminal Record Expungement

Dean v. US, 436 F.Supp.2d 485 (E.D.NY)(June 28, 2006).

(denial of motion to expunge fingerprint records was not preclusive on issue of expungement of conviction; 2. defendant satisfied "continuing legal consequences" requirement for granting petition; 3. government was entitled to discovery on issue of whether defendant had unduly delayed petition, and 4; compelling reasons for granting petition existed)

BOP's Nasty Tricks or the real BOP

Lonegan v. Hasty,436 F.Supp.2d 419 (E.D.NY)(June 22, 2006)

No qualified immunity from Wire Tap claims)(BOP Brooklyn Federal Detention Center, wire tapped lawyer visits, abused inmates; whole range of what the BOP really does when they think no ones is looking...

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US v. Likens, No. 05-3917 (8th Cir. September 22, 2006).

A sentence for being a felon in possession of a firearm and ammunition is vacated and remanded for resentencing pursuant to the government's claim that the sentence was unreasonable where the circumstances in the case were not the kind of extraordinary circumstances which would justify a 100% downward variance from the bottom of the applicable guidelines range. http://caselaw.lp.findlaw.com/data2/circs/8th/053917p.pdf

condition of pretrial release, required a showing of probable cause, despite defendants prelease consent

US v. Owens, 424 F.3d 649 (7th Cir. 2005)(evidence suggesting defendant had committed prior, uncharged bank robbery seven years earlier was inadmissable, not harmless).

US v. Sanders, 424 F.3d 768 (8th Cir. 2005)(Defendant unequivocally withdrew his consent to search of his person).

US v. Scott, 424 F.3d 888 (9th Cir. 2005)(held that as a matter of first impression, warrantless searches, including drug testing, imposed as a condition of pretrial release, required a showing of probable cause, despite defendants prelease consent).

Protective sweep violated Fourt Amendment

US v. Lewis, 424 F.3d 239 (2nd Cir. 2005)(district court erred in failing to state reasons for imposition of sentence).

US v. Gandia, 424 F.3d 255 (2nd Cir. 2005)(protective sweep of defendant's apartment, made by police who had obtained his consent to come in and speak with him, violated Fourth Amendment).

Pazden v. Maurer, 424 F.3d (3rd Cir. 2005)(held that defendant's waiver of counsel during state court prosecution was not voluntary).

In re Lott, 424 F.3d 446 (6th Cir. 2005)(petitioner's assertion of actual innocence did not affect waiver of attorney-client or work product privledge).

Martin v. Grosshans, 424 F.3d 588 (7th Cir. 2005)(Ineffective assistance of counsel: counsel's performance defeicient in failing to object to irrelevant and prejudicial testimony of prosecution's witness; failing to move for mistrial after prosecutor's inflammatory closeing argument, and cummulative error).

Check-writing authority for his employer, did not qualify as "forged securities," under statute prohibiting the uttering of forged securities

US v. Hunt, 456 F.3d 1255 (10th Cir. 2006).

(held that checks defendant wrote and signed, as agent with check-writing authority for his employer, did not qualify as "forged securities," under statute prohibiting the uttering of forged securities).

Waiver of right to appeal sentence did not waive right to appeal conviction

US v. Palmer, 456 F.3d 484 (5th Cir. 2006). (defendant's waiver of right to appeal sentence did not waive right to appeal conviction; 2. facts adduced at guilty plea hearing did not establish that defendant's possession of pistol was in furtherance of drug trafficking offense; 3. distric court erred in accepting guilty plea, not harmless).

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Petitioner made dillengent efforts

Boyd v. Newland, 455 F.3d 897 (9th Cir. 2006)(2254)(without entire voir dire transcript Cailifornia appellate court could not have evaluated relevant circumstances surrounding preemtory strike of African-American juror, as required by Batson.
Roy v. Lampert, 455 F.3d 945 (9th Cir. 2006)(2254)(petitioner made dillengent efforts to pursue federal habeas review entitling them to evedentiary hearing on equitable tolling claims).

US v. Cousins, 455 F.3d 1116 (10th Cir. 2006)(defendant's prior state conviction for misdemeanor receiving stolen goods should not have been included in calculation of his criminal history; defendant could challenge constitutionality of prior state conviction on Sixth Amendment grounds, and government waived right to argue that case issued after defendant's prior conviction did not apply retroactively).

Officer's mistake of law Traffic Stop thrownout

US v. Washington, 455 F.3d 824 (8th Cir. 2006)(Officer's mistake of law as to whether cracked windshield on defendant's vehicle violated Nebraska law was not reasnable). Traffic Stop gun found thrownout.

Ineffective Assistance of counsel failing to investigate

Frierson v. Woodford, No. 04-99002 (9th Cir. September 14, 2006)Denial of a habeas corpus petition in a death penalty case is reversed with respect to the penalty phase of trail where trial counsel provided ineffective assistance in failing to investigate and present important mitigation evidence at the penalty phase of a trial, and in failing to review juvenile court records and to challenge a key mitigation witness's assertion of his privilege against self-incrimination at the penalty trial, and the errors were prejudicial. http://caselaw.lp.findlaw.com/data2/circs/9th/0499002p.pdf

Judge Entered Into Plea Negotiations

US v. Bradley, 455 F.3d 453 (4th Cir. 2006).

District courts violation of rule prohibiting judicial involvement in plea negotiations affected defendant's substantial rights.

Confrontation Clause Violated

US v. Jimenez, No. 04-51225 (5th Cir. September 12, 2006)

Convictions for conspiracy to possess with intent to distribute cocaine and aiding and abetting possession with intent to distribute are vacated where the district court violated her Confrontation Clause right by not allowing her to ask a government witness, a narcotics officer, where specifically he was located when he allegedly observed her selling drugs while on the front porch of her home, and the error was not harmless. http://caselaw.lp.findlaw.com/data2/circs/5th/0451225cr0p.pdf

CRIMINAL LAW & PROCEDURE, EVIDENCE

Taveras v. Smith, No. 05-5579 (2d Cir. September 11, 2006).

Grant of habeas petition, finding that petitioner, an indigent former fugitive returned to state custody during the pendency of his first-tier state appeal, was denied his constitutional right to counsel, is affirmed as clearly established Supreme Court law prohibited the New York Appellate Division from dismissing petitioner's first-tier appeal on fugitive disentitlement grounds without appointing counsel and without providing a copy of any transcripts available and necessary for pursuing that appeal. http://caselaw.lp.findlaw.com/data2/circs/2nd/055579p.pdf

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US v. Naranjo, 426 F.3d 231 (3rd Cir. 2005)(remand required to determine whether law enforcement officers deliberately asked defendant questions first without giving Maranda warnings, before deciding whether postwarning statements woulld be excluded, and Booker).

Kittelson v. Dretke, 426 F.3d 306 (5th Cir. 2005)(2254)(State trial court violated Confrontation Clause and due process by permitting state to imply that a second child had accused defendant, but excluding defense evidence of recantation, and exclusion of evidence was not harmless.

US v. Juluke, 426 F.3d 323 (5th Cir. 2005)(insufficient evidence of nexus between the offense and jewlery to support jewlery forfeiture).

Hodge v. Hurley, 426 F.3d 368 (6th Cir. 2005)(2254)(No. 03-3166 During his egregiously improper closing argument, the prosecutor commented on the credibility of witnesses, misrepresented the facts of the case, made derogatory remarks about the defendant, and generally tried to convince the jury to convict on the basis of bad character, all while defense trial counsel sat idly by.

US v. Fuller, 426 F.3d 556 (2nd Cir. 2005)(defendant's alternative non guidelines sentence violated statute setting forth factors to be considered in imposing sentence).

Gersten v. Senkowski, 426 F.3d 588 (2nd Cir. 2005)(2254)(Ineffective assistance of counsel, failure to cal witnesses).

Wilson v. Beard, 426 F.3d 653 (3rd Cir. 2005)(2254)(Batson winner).

US v. Waller, 426 F.3d 838 (6th Cir. 2005)(felon is possession reversed; defendant had expectation of privacy in zipped, closed suitcase which was stored in friends closet; resident did not have actual authority to grant consent to allow police officers to search suitcase; it was unclear whether defendant's suitcase was subject to mutual use by resident, and thus police officer's were not entitles to search suitcase without a warrant without further inquiry).

BOP regulation limiting petitoner's placement in a Community Correction Center (CCC) to the lesserof the last ten percent or six months of his sentenc

US v. McWeeny, 454 F.3d 1030 (9th Cir. 2006)(District Court was required to determine whether police officer coerced defendant into believing that he had no authority to withdraw his consent).

US v. Ingle, 454 F.3d 1082 (10th Cir. 2006)(felon in possession of firearm was not a crime of violence).

US v. Ladeaux, 454 F.3d 1107 (10th Cir. 2006)(remand warranted to permit district court to consider in first instance whether to suppress evidence obtained during traffic stop based on officer's request that vehicle's windows be closed and vents opened).

Levine v. Apker, 454 F.3d 71 (2nd Cir 2006)(BOP regulation limiting petitioner placement in a Community Correction Center (CCC) to the lesser of the last ten percent or six months of his sentence held improper exercise of the BOP's rulemaking authority).

US v. Powell, 451 F.3d 862 (D.C. Cir. 2006)(held that the search incident-to-arrest warrant exception did not apply to search of passenger compartment of car that preceded both custody and formal arrest).

Johnson v. Kemna, 451 F.3d 938 (8th Cir. 2006)(2254)(Petition timely).

Brown v. Lambert, 451 F.3d 946 (9th Cir. 2006)(2254)(held that state trial courts exclusion of juror for cause was directly contrary to US Supreme Court precedent, warranting habeas corpus relief).

US v. Villa-lara, 451 F.3d 983 (9th Cir. 2006)(Held that prior drug offense in violation of Nevada law did not qualify as a "drug trafficking offense" within the meaning of the sentencing guidelines providing for a 16 level increase).

US v. Tucker, 451 F.3d 1176 (10th Cir. 2006)(District court erred in not allowing defendant to represent himself during voir dire revered and remanded for new trial).

9th Circuit most lenient

US v. McDonald, 453 F.3d 958 (7th Cir. 2006)(Proceeding on the same street after engaging the turn signal wan not a violation of Illinois law; a police officers mistake of law cannot support probable cause to conduct a stop).

US v. D.L., 453 F.3d 1115 (9th Cir. 2006)(government violated Juvenile delinquent Act (JDA) by failing to "immediately notify of his legal rights; arraignment delay, etc. Dismissal of charges warranted)(10 page dissent)

Smith v. Mitchell, 437 F.3d 884 (9th Cir. 2006)2254 insufficient evidence. Why 9th Circuit best in US see 453 F.3d 1203 rehearing 7 page dissent).

US v. Brownlee, 454 F.3d 131 (3rd Cir. 2006)(show-up procedure unnecessarily suggestive; defendants inculpatory statements were product of custodial interrogation, not harmless, prior panel given binding effect).

US v. Mosley, 454 F.3d 249 (3rd Cir. 2006)(when a vehicle is illegally stopped by the police (anonymous tip), no evidence found during the stop may be used by the government against any occupant of the vehicle; guns found had to be suppressed, conviction vacated). (Huge passenger in vehicle expostion).