U.S. Tenth Circuit: May 2010 Archives
U.S. Tenth Circuit - The FindLaw 10th Circuit Court of Appeals Opinion Summaries Blog

May 2010 Archives

Murder-Related Habeas Matters

In Bunton v. Atherton, No. 09-1152, a murder prosecution, the Tenth Circuit affirmed the denial of petitioner's habeas petition, holding that 1) the state court of appeals did not unreasonably apply Strickland in determining that defense counsel made a reasonable strategic decision to forego a witness's testimony; 2) petitioner's claim was barred on an independent state procedural ground; and 3) the cumulative error doctrine did not apply because the court did not find the existence of two or more actual errors.

In Hooks v. Workman, No. 07-6152, a capital habeas matter, the Tenth Circuit reversed the denial of petitioner's habeas petition, on the grounds that 1) the Allen charge given by the trial court in the midst of penalty-phase deliberations, when considered in the context of all surrounding circumstances, coerced the jury into returning death sentences; and 2) the Oklahoma Court of Criminal Appeals' decision to the contrary was an unreasonable application of Lowenfield v. Phelps, 484 U.S. 231 (1988).

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Civil Rights Action Involving Incorrect Arrest Warrant Affidavit

Fletcher v. Burkhalter, No. 09-7003, involved a civil rights action claiming that defendant signed a probable-cause affidavit that led to plaintiff's improper arrest for engaging in a fraudulent land sale.  The court of appeals affirmed the denial of summary judgment on qualified immunity grounds, holding that: 1) the court lacked jurisdiction to consider defendant's argument that the district court erred in holding that there was sufficient evidence to support a finding of malice; and 2) the approvals of the district attorney and the judge did not absolve defendant of liability.

As the court wrote:  "Jack Wade Fletcher (Plaintiff Fletcher) sued McIntosh County Deputy Sheriff Jerome Burkhalter under 42 U.S.C. § 1983. He alleged that Deputy Burkhalter had violated his rights under the Fourth Amendment (as applied to the states under the Fourteenth Amendment, see Mapp v. Ohio, 367 U.S. 643, 655 (1961)), by signing a probable-cause affidavit that led to his improper arrest for engaging in a fraudulent land sale. According to Plaintiff Fletcher, the evidence provided to Deputy Burkhalter by the victim of the fraud clearly showed that he was not the Jack Fletcher who had committed the offense."

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Dismissal of Bankruptcy Appeal Affirmed

In In re: Latture, No. 09-6016, court of appeals affirmed the bankruptcy appellate panel's (BAP) order dismissing debtor's appeal as untimely, holding that 1) debtor's failure to timely file an appeal in compliance with Rule 8002(a) deprived the BAP of jurisdiction to hear his appeal; 2) by its own terms Fed. R. App. P. 6 did not govern an appeal taken from bankruptcy court to a bankruptcy appellate panel; and 3) even assuming debtor did not receive the court's judgment, the BAP could not extend the time to file a notice of appeal.

As the court wrote:  "Plaintiff-Appellee Tracy Emann obtained a judgment against Defendant-Appellant Rodger Latture. Latture subsequently filed for bankruptcy. The bankruptcy court granted Emann's motion for summary judgment, finding Emann's claim non-dischargeable. The bankruptcy court entered summary judgment for Emann on November 14, 2008. Latture did not file his notice of appeal with the Bankruptcy Appellate Panel of the Tenth Circuit (B.A.P.) until November 25, 2008--eleven days after the bankruptcy court entered its judgment--making it one day out of time according to Fed. R. Bankr. P. 8002(a) and 9006(a).1 Relying on In re Herwit, 970 F.2d 709, 710 (10th Cir. 1992), the B.A.P. concluded Latture's failure to file a timely notice of appeal was a jurisdictional defect which bars appellate review and, accordingly, dismissed Latture's appeal."

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In US v. McConnell, No. 09-3036, the court of appeals affirmed defendant's sentence for possessing a firearm after conviction of a felony, on the ground that defendant's prior Kansas state conviction for eluding a law enforcement officer constituted a "crime of violence" under U.S.S.G. section 2K2.1(a)(4)(A).

As the court wrote:  "Jason McConnell pleaded guilty to one count of possessing a firearm after conviction of a felony, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). In calculating the advisory range of sentences under the United States Sentencing Guidelines (USSG), the district court determined that Mr. McConnell's prior Kansas conviction for fleeing and eluding a law enforcement officer under Kan. Stat. Ann. § 8-1568 constituted a "crime of violence" under USSG § 4B1.2. The court granted Mr. McConnell a downward variance from the advisory Guidelines range and imposed a sentence of 48 months' imprisonment.

Mr. McConnell now argues that the district court erred in characterizing his Kansas fleeing and eluding conviction as a "crime of violence." Although he concedes that in United States v. West, 550 F.3d 952 (10th Cir. 2008), this court upheld that characterization of a similar Utah offense, he maintains that the Supreme Court's subsequent decision in Chambers v. United States, 129 S. Ct. 687 (2009), has overruled the principal holding of West. We are not persuaded, and we therefore affirm Mr. McConnell's sentence."

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Rocky Mtn. Christian Church v. Bd. of Cty. Cmm'rs. of Boulder, Colo., No. 09-1188, concerned an action by a church claiming that the City of Boulder's denial of a special use application violated the Religious Land Use and Institutionalized Persons Act's (RLUIPA) substantial burden, equal terms, and unreasonable limitations provisions.  The court of appeals affirmed the district court's permanent injunction in favor of plaintiff, holding that 1) plaintiff presented ample evidence of similarities between its proposed project and another at trial; 2) the jury could reasonably choose to weigh evidence of the County's land use regulation effectively excluding churches more heavily than the County's record of approving special use applications; and 3) the injunction was consistent with the jury's verdict on both the RLUIPA claims and damages.

Lewis v. Tripp, No. 09-6105, involved an action by a chiropractor claiming that an administrative search of his office was carried out in violation of his Fourth Amendment rights.  The court of appeals reversed the denial of summary judgment for defendant, on the ground that defendant was entitled to qualified immunity because there was no evidence in the record to suggest that defendant was personally involved in the Fourth Amendment violation plaintiff alleged.

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Fruitt v. Astrue, No. 09-6027, involved a motion for attorney's fees following the district court's reversal of the Social Security Commissioner's denial of benefits to plaintiff.  The court of appeals reversed the district court's denial of costs to plaintiff, on the ground that the fourteen-day deadline for a bill of costs under the Local Rules for the United States District Court, Western District of Oklahoma, W.D. Okla. L.R. 54.1, did not establish a time limit for an Equal Access to Justice Act fee request.

Phillips v. Workman, No. 08-7043, involved a capital habeas matter.  The court of appeals reversed the denial of the petition, holding that 1) second-degree murder was a lesser-included offense at the time of petitioner's trial and at the time the Oklahoma Court of Criminal Appeals denied petitioner's petition for rehearing, and thus petitioner was entitled to an instruction on that charge; and 2) a jury could rationally conclude that the victim's death was perpetrated by an act imminently dangerous to the victim and evincing a depraved mind, but without a premeditated design to effect death.

WildEarth Guardians v. Nat'l. Park Serv., No. 08-1479, concerned an action challenging the National Park Service's proposal to reduce the elk population in Rocky Mountain National Park.  The court of appeals reversed the denial of a hunting and conservation organization's motion to intervene as a defendant, holding that 1) the intervenor demonstrated that it had a substantial interest in the district court proceedings and that its interest might be impaired as a result of the litigation; and 2) the district court needed to determine whether the intervenor's interests were already adequately represented.

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Affidavit in Support of Search Warrant Found Proper

In US v. Campbell, 09-3212, the court of appeals affirmed defendant's conviction for possessing ammunition as a convicted felon, holding that 1) defendant did not reveal or provide any evidence in the record of an intent to mislead or recklessness on the part of the officers in executing the search warrant at issue; 2) the officers executing the warrant reasonably relied on the magistrate's authorization; 3) even assuming the affidavit's information was so stale as to not establish probable cause with regard to defendant, the affidavit's information nonetheless provided sufficient indicia of probable cause to justify the officers' good faith reliance; and 4) nothing in the record suggested the kind of recurring or systemic negligent conduct by law enforcement occurred that precluded the application of the good-faith exception to the exclusionary rule.

As the court wrote:  "A jury convicted Defendant Jermall Campbell of possessing ammunition as a convicted felon in violation of 18 U.S.C. § 922(g)(1). Law enforcement seized the ammunition during a warrant search of Defendant's Wichita, Kansas home. Defendant challenged the search with a motion to suppress and a request for a hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978). After conducting an evidentiary hearing, the district court denied Defendant's motion to suppress, concluding (1) probable cause existed to support the warrant, (2) the officers involved in the preparation of the affidavit supporting the warrant did not deliberately mislead or act with reckless indifference to the truth, and, otherwise, (3) law enforcement relied in objective good faith upon the warrant.  Defendant appeals.  Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm the district's denial
of Defendant's motion to suppress."

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Speedy Trial Act Issue in Drug Conspiracy Matter

In US v. Allen, No. 09-8008, the Tenth Circuit affirmed defendant's drug conspiracy conviction and sentence, holding that 1) defendant's appellate brief failed to support her Speedy Trial Act with a legal argument, and failed to explain her position on the facts and posture of the case; 2) in view of the trial judge's careful instructions to the jury and the fact that a prejudicial photo array only appeared on the first two days of a two-week long trial, any error was harmless; 3) all statements of witnesses were provided, as the Jencks Act required, following their testimony on direct examination at the latest; statements of a number of witnesses had been provided well before that deadline; and 4) any error in refusing to give an instruction requiring specific unanimity was clearly harmless beyond a reasonable doubt.

As the court wrote:  "Defendant-appellant Karen Allen was convicted by a jury of two counts related to dealing in methamphetamine. Ms. Allen was sentenced to 121 months' imprisonment on Count One and 48 months' imprisonment on Count 22, to be served concurrently. She was also sentenced to five years on supervised release and was ordered to pay a special assessment of $200.00. She now brings this direct appeal from the convictions and the resulting sentence. Our jurisdiction is granted by 28 U.S.C. § 1291."

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LaAsmar v. Phelps Dodge Corp., No. 07-1267, concerned an ERISA action against an insurer based on the denial of plaintiffs' claim for accidental death benefits because, at the time of the crash, plaintiffs' son's blood alcohol level was almost three times the limit permitted under Colorado law.  The court of appeals affirmed judgment for plaintiffs, holding that 1) although defendant eventually denied plaintiffs' claim on administrative review, it did so substantially outside the time period within which the plan vested it with discretion to interpret and apply the plan, and thus it was not acting within the discretion provided by the plan; 2) the decedent died, not of alcohol intoxication, but as a result of head and internal injuries suffered in a motor vehicle crash; 3) "accident," as used in the policy, extended coverage to an unintended death resulting from an vehicle crash where the driver had a blood alcohol content approximately 2.8 times the legal limit and where the vehicle was being driven approximately twenty miles an hour over the speed limit on a two-lane rural road at night; and 4) because plaintiffs failed to request an award of attorney's fees in a proper manner, the district court did not err in declining to award attorney's fees.

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PJ v. Wagner, No. 08-4197, concerned a civil rights action claiming that various state officials wrongfully attempted to force a child to undergo medical treatment (chemotherapy).  The court of appeals affirmed summary judgment for defendants in part, holding that: 1) a lower federal court would necessarily have to review and reject certain state-court judgments in order for plaintiffs to succeed on their malicious prosecution claims; 2) defendant-prosecutor's representations in a state court proceeding were intimately associated with the judicial process and her role as an advocate for the state; 3) plaintiffs' right to direct their son's medical care in this case--if any right indeed exists in such circumstances--was not clearly established at the time they alleged the right was violated; and 4) plaintiffs failed to show that any defendant imposed an undue burden on their relationship with the child and therefore failed to show a violation of their associational rights.  However, the judgment is reversed in part where plaintiffs' malicious prosecution claims necessarily invite federal-court undoing of two adverse state-court orders, and thus the Rooker-Feldman doctrine bars such claims.

As the court wrote:  "There is perhaps no more delicate constitutional barrier protecting individual freedom from governmental interference than that which protects against state interference with parental autonomy. The Supreme Court has long recognized that "[t]he child is not the mere creature of the state," Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925), and that "the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder." Prince v. Massachusetts, 321 U.S. 158, 166 (1944). It is also well settled, however, that "[a] democratic society rests for its continuance upon the healthy, well-rounded growth of young people into full maturity," and that states "may secure this against impeding restraints and dangers within a broad range of selection." Id. at 168. Because of the importance of parental rights and the concomitant interest of the state in the health and safety of minor children within its borders, the intersection of individual freedom and state authority is always difficult to traverse when a child's life is at stake. This case arises at this difficult constitutional intersection and involves both parents and state actors who genuinely sought to do what they believed was best for a child who was tragically stricken with a life-threatening illness. We have jurisdiction under 28 U.S.C. § 1291, and for the reasons discussed below we REVERSE in part and AFFIRM in part the decision of the district court."

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