CA4 -- 12/2

Catching up on last week's action in the Fourth Circuit, two published opinions merit comment.

First, Nolte v. Capital One. Two big-time firms (Milberg, Weiss and Morrison & Foerster) and a big-time problem: not pleading fraud with particularity. There's not much to it, but it's a concise explanation of the heightened pleading standard. Plaintiffs had to allege that what the Defendants were saying was false, and that they knew it to be false. The district court's dismissal of the suit was affirmed.

Second, a habeas case, Manokey v. Waters. In Manokey's state trial, the judge granted a judgment of acquittal on a reckless endangerment charge, and Manokey was convicted of first-degree assault. His habeas claim was that the crimes are the same offense and double jeopardy barred his assault conviction. The district court granted habeas relief, relying on a state case discussing merger-for-sentencing purposes of these two crimes. On the state's appeal, the Fourth Circuit held that the state habeas court had properly applied Blockburger in finding that reckless endangerment and first-degree assault were different crimes (they require proof of different mens reas). Accordingly, habeas relief was not warranted.

Ann Coulter's former boss, Senior Judge Bowman of the Eighth Circuit, sat by designation and wrote the opinion. Judge Williams concurred and wrote that Manokey's judgment of acquittal on reckless endangerment wasn't because of insufficient evidence, and thus Manokey's double jeopardy claim is meritless. Judge Bowman responded in a footnote (number 7, for those following along) that the other member of the panel, Judge Traxler, agreed with both grounds and so both rationales were supported by a majority of the court.

One other note. This was an appeal by the state, but Manokey did not file a cross-appeal or seek a certificate of appealability (COA) on any issues. On appeal, he argued several reasons why the habeas claim could be upheld even if the district court erred on the double jeopardy analysis. The court wouldn't hear of it, because there was no COA. It noted that in ordinary cases, "an apellee may defend a judgment on any ground that was raised in the lower court." But habeas is different. Since Manokey didn't apply for a COA, the court had no jurisdiction to address any of his additional arguments. (The state doesn't need a COA to appeal.) In a charitable move, the court treated Manokey's brief on appeal as an application for a COA, and determined that he had not made "a substantial showing of the denial of a constitutional right," and thus didn't make the cut.