Pippin v. Dretke (King, C.J.)
Pippin was sentenced to death after he killed a couple of his associates in a drug smuggling enterprise. This opinion concerns his application for a certificate of appealability.
First, the prosecution did not disclose ballistics evidence that two guns were involved in the shooting. The court rejects this claim because Pippin had access to the same ballistics evidence and his expert had the chance to conduct his own tests. Therefore the evidence was not suppressed.
Second, Pippin argues that the trial court should have instructed the jury on the lesser-included offense of felony murder. Pippin had testified that he was involved in only the kidnaping of the victim, not the shooting. The trial court gave an instruction on the lesser-included offense of kidnapping, but not felony murder. Pippin's testimony, the state court held, would not support a conviction of felony murder because kidnaping is not "clearly dangerous to human life that caused the death of . . . the victim." The court holds that clearly established federal law does not require that a jury be instructed on all conceivable lesser-included offenses. Here, kidnaping was enough.
Third, Pippin argues that a juror was reading a book during the trial. There was, however, conflicting evidence concerning whether this actually happened. The court defers to the state court's finding that the event did not happen. (One wonders what book the juror was alleged to have been reading?)
Fourth, Pippin raises a claim of ineffective assistance of counsel, which the court deems procedurally defaulted. I confess some confusion about this ruling. The state court held that these "claims were not properly before the court because they were first presented in his pro se state habeas application, even though his counsel subsequently incorporated them into a supplemental application. Under Texas law, state habeas petitioners are not entitled to hybrid representation." Was Pippin receiving hybrid representation? His lawyer raised this argument in the state habeas proceeding, precisely the appropriate time to raise an ineffective assistance claim.
Finally, the court dodges ruling on whether the admission of the "excited utterance" of one of Pippin’s victims violated Crawford by holding that the issue was not adequately briefed.
United States v. Pompa (Garza, J.)
This case has the first ever reported use of the term "broccoli beads" in an American judicial opinion. Even better yet, it involves a "motion to suppress the broccoli beads" as the fruit of an illegal traffic stop. Congratulations on this milestone, Judge Garza!
There was probable cause to believe the defendants in this case, who were driving a tractor-trailer containing broccoli and hidden marijuana, were smuggling drugs because: 1) the truck had an unusually length stay at a truck stop; 2) the truck was driving South East even though its ostensible destination was to the North East; 3) the driver had previously been seen entering the truck using a flashlight; 4) the seal of the truck had been broken; and 5) the occupants were observed "walking on to of the load" which presumably you can’t do if the truck contains crates of broccoli? I don’t know, it sounds pretty flimsy to me, but the court upholds the search.
Molina v. Ziglar (Smith, J.)
Molina was previously deported after being convicted of a DWI, which under the law at the time rendered him removable. Following removal, the Fifth Circuit ruled in another case that a DWI is not a crime of violence that renders an alien removable. Molina illegally re-entered the country and was caught. He argued that the Fifth Circuit’s new rule should apply retroactively to his case.
The court holds that it lacks jurisdiction. Apparently, to collaterally attack a prior removal order, the Fifth Circuit requires an alien to establish that it constituted a "gross miscarriage of justice." The court holds that because Molina failed to actually challenge his removability in that prior proceeding, there was no miscarriage of justice.
Williams-Igwonobe v. Gonzales (Benavides, J.)
After marrying a U.S. citizen, Williams moved to adjust his status. For unknown reasons, this motion languished in the BIA for seven years. Eventually the BIA ruled in favor of him, but by that time Williams had moved and lost touch with his lawyer. His attorney withdrew, and the BIA sent notice to Williams’s old address. Williams never got the notice, never adjusted his status, and was ordered removed based on a prior mail fraud conviction. Williams later discovered what happened and moved to reopen, claiming that he had told his lawyer his new address. The IJ denied the motion because Williams had not demonstrated "reasonable cause." The Fifth Circuit holds that applying the "reasonable cause" standard was an abuse of discretion.
Warfield v. Byron (Jones, C.J.)
This case concerns investors’ efforts to recover payments made through a Ponzi scheme as fraudulent transfers under Washington state law.
United States v. Woods (Davis, J.)
Woods pled guilty to bank fraud. He objected to the PSR based on Blakely. The court declined to upwardly depart, but gave a sentence at the top of the Guidelines range and ordered that this sentence run consecutive to any state sentence in an unrelated criminal proceeding.
The Government argues the Sixth Amendment violation was harmless because the district court sentenced Woods at the top of the Guidelines. Under 5th Circuit law, this is not enough to establish that a Booker error was harmless. This creates a split with the Tenth Circuit. See United States v. Riccardi, 405 F.3d 852 (10th Cir. 2005).
That the sentence runs consecutive with a state sentence in another pending proceeding doesn’t help either. That state proceeding was for an unrelated offense. The district court was just following the general rule that sentences for unrelated criminal conduct run consecutively, not expressing an opinion about the appropriate sentence for this offense.