Often times, it's pretty clear which set of procedural rules, state or federal, apply to a case. But, when it comes to habeas review, state and federal procedures do a little dance. The Tenth Circuit recently reviewed a case that brought the interplay of procedural rules to center stage, and cast federal habeas review in the leading role.
Recently in Court Rules Category
In July, the United States District Court for the District of Kansas was presented with a question -- the first of its kind in the 10th Circuit: Can Facebook be used as the sole method of substitute process pursuant to Rule 4 of the Federal Rules of Civil Procedure?
Interesting question since Facebook has over 1 billion users worldwide. From what we can see, only three opinions address this issue: two from the Southern District of New York and one from the District of Kansas. Let's see where they stand -- and where they will take us.
The Tenth Circuit was not amused when Jerry McCormick attempted to appeal a summary judgment order, arguing that it was improper -- but with no new evidence to prove that. The court stated their general rule of thumb that parties maintain the responsibility of "craft[ing] their own legal theories for relief in the district court," Richison v. Ernest Group, Inc.
Also, as an appellate court, they stated that while important, their role was limited to correcting any errors made by the district court. Most importantly, they followed that up by retorting that they are not conveniently there to serve as a "second-shot forum where secondary, back-up theories may be mounted for the first time."
Apparently, McCormick attempted exactly that. Or, some version of that.
To recap the entirety of the procedural history of D.A. Osguthorpe Family Partner v. ASC Utah, Inc. would require a voluminous text comparable to Joyce’s Ulysses. We’ll spare your time, and ours, as many of us are billing by the hour.
A few parties decided to develop Utah land into a golf course, ski resort, and vacation destination. The project collapsed in development and litigation ensued. Counterclaims, third parties, and litigation consolidation added enough parties and confusion to lead the Tenth Circuit to refer to it as “metastasized.”
Rommie Woodard was convicted of possessing more than 100 kilograms of marijuana with the intent to distribute and sentenced to 60 months' imprisonment and 4 years' supervised release.
Last week, the Tenth Circuit Court of Appeals reversed Woodard's conviction, finding that the district court violated his Sixth Amendment confrontation rights when it refused to allow him to cross-examine a witness about a prior judicial determination that the witness was not credible.
If the definition of insanity is repeating the same action with the expectation of a different result, then the lawyer's definition of insanity is rehashing the same argument before a court with the expectation that you won't be threatened with sanctions.
Courts do not appreciate persistence. And they can back up their annoyance with fines and disbarment.
A notice of appeal isn't the only way to challenge an issue in the Tenth Circuit Court of Appeals.
This week, the Denver-based court concluded that appellants who contested an attorney's fees award in their opening brief on a related issue satisfied the requirements of Federal Rule of Appellate Procedure (FRAP) 3(c)(1).
At the start of a trial, the judge administers an oath to the jury. The idea behind the oath is to impress upon jurors that they're dealing with a serious matter, and they need to pay attention.
It's kind of a big deal if the jurors aren't sworn in, but an attorney can't just sit on that error in case the trial doesn't go his way, according to a recent Tenth Circuit Court of Appeals ruling.
James Holmes, the alleged movie theatre gunman, is facing 142 charges stemming from the Aurora theatre shooting in July. The charges include 12 counts of first-degree murder, 12 counts of first-degree murder with extreme indifference, 116 counts of attempted murder, one count of committing a crime of violence, and one count of possession of explosives.
Details emerged this week indicating that the prosecution will characterize the shootings as a revenge plot, while the defense will plead insanity, reports the Huffington Post.
If Holmes decides to see the case through to trial, it could be one of the most talked-about cases in recent memory.
The Tenth Circuit Court of Appeals interprets the Federal Rules of Criminal Procedure strictly.
For example, Rule 35 allows a court to “correct a sentence that resulted from arithmetical, technical, or other clear error” within 14 days after sentencing.
What happens after 14 days? According to the Tenth Circuit, the court loses subject matter jurisdiction for resentencing when the period lapses.