OCDW 10.17.16

 

(with special thanks to Mark Hoover, OIDS, for contributing regularly)

 

“I have lived my life, and I have fought my battles, not against the weak and the poor—anybody can do that—but against power, against injustice, against oppression, and I have asked no odds from them, and I never shall.”—-Clarence S. Darrow, Attorney for the Damned 491, 497 (Arthur Weinberg ed. 1957).

 

 

Adam Wayne Simms v. State, No. F-2015-629 (Okl.Cr., October 13, 2016) (unpublished): Standard of Review: Simms was convicted by jury in Okmulgee County (the Hon. Kenneth E. Adair, presiding) of Attempted Robbery by Force, and A&B on Police Officer. The Court affirmed over several claims, including double jeopardy, but I include this case because Simms raised his 21 O.S. 11/Double Jeopardy claim in a motion to arrest judgment filed prior to sentencing. This preserved the claim for appellate review for an abuse of discretion.

Steven Casey Jones v. State, No. C-2015-1057 (Okl.Cr., October 12, 2016) (unpublished): Guilty Pleas: In this case out of Tulsa County (the Hon. Douglas E. Drummond, presiding), the Court granted certiorari when trial counsel informed the client of the incorrect range of punishment.

State v. Ronnie B. Wright, No. S-2015-785 (Okl.Cr., October 11, 2016) (unpublished): DUI (Blood Draw): Wright was charged with First Degree Manslaughter, Causing an Accident While Driving w/o DL, Possession of Firearm AFCF, and Possession of CDS in Oklahoma County (the Hon. Glenn M. Jones, presiding). This is a DUI car wreck case where there was a blood draw, even though the officer testified that there was no evidence of intoxication. The blood draw was performed under statute because there was death or great bodily injury. In this opinion, the Court reversed, holding that the statute requiring the blood draw is constitutional. NOTE: This decision, as well as the published opinions preceding it, appear to be directly contrary to Supreme Court precedent. Also, in this alternate universe, Judges Lumpkin and Hudson actually dissented.

 

 

In re: Richard Clark, No. 16-5081 (10^th Cir., September 21, 2016) (Published) (Tymkovich, C.J., O’Brien & Gorsuch) (N.D. Okla., Hon. James H. Payne): Habeas Corpus (Second/Successive): In a previous opinion, the panel denied authorization to Clark to file a second or subsequent 2255 motion, which is a non-appealable order, nor subject to rehearing. Nevertheless, Clark petitioned for rehearing. The panel allowed this on the basis that Clark did not challenge the denial of authorization, but rather whether the petition is precluded in the first place since he filed a 2255 petition as a federal prisoner, and not a habeas petition. The panel held that he was not precluded from petitioning for rehearing, but denied his claim on the merits, concluding that the bar on rehearing applies to 2255 petitions as well.

Miguel Cardoso v. Tracy McCollum, Warden, No. 15-6208 (10^th Cir., September 16, 2016) (unpublished) (Gorsuch, Baldock & Phillips): Juveniles & Y.O.: Cardoso was convicted by jury of murder when he was 17 years old, and sentenced to LWOP. In Miller, the Supreme Court held that mandatory LWOP for a juvenile is unconstitutional. Cardoso sought relief under Miller, but after the district court denied his claim, the Supreme Court decided Montgomery, which held that Miller is retroactive. Rather than tangle with this issue, the panel remanded to the district court to consider whether Montgomery expanded the holding of Miller in favor of the petitioner. NOTE: This is a good result for petitioner’s with this issue. Also, Miguel Cardoso was the first jury trial I ever did. I second chaired it with Bob Wyatt back in 1994, and I hope Miguel gets some relief.

United States v. Jesus Domingo Martinez-Cruz, No. 15-2167 (10^th Cir., September 12, 2016) (Published) (Tymkovich, C.J., Ebel & Lucero): Federal Sentencing Guidelines (Drug Trafficking Offense): Enhancement for having a prior conviction for drug trafficking conspiracy is vacated because the “generic” definition of conspiracy in the Guidelines requires an overt act, while federal statutes do not; thus, under the categorical approach is prior conviction is not a match.

 

 

“Only Supreme Court justices and schoolchildren are expected to and do take the entire summer off.” –Chief Justice John Roberts (statement made while he served as a lawyer in the Reagan Administration).

 

Shaun Michael Bosse v. Oklahoma, No. 15-9173 (U.S., October 11, 2016) (per curiam): Death Penalty (Victim Impact): The Court vacated an opinion of the Oklahoma Court of Criminal Appeals which had upheld the use of victim impact statements where victims recommended a sentence. The Court noted that its precedent held that this was not constitutional, and that subsequent cases had not overruled it. NOTE: I had raised this claim in at least two capital cases, and I know others had as well. My clients were executed before the Court apparently decided to rebuke the OCCA, but I am glad it did now.

 

 

Christopher Chubasco Wilkins v. Lorie David, Director, No. 16-70002 (5^th Cir., August 10, 2016): Clemency: In this capital habeas case, district court denial of funds for attorney to pursue clemency is reversed.

United States v. Desmond Ra’Keesh White, No. 15-4096 (4^th Cir., September 9, 2016): Federal Sentencing Guidelines (ACCA): Sentence under the ACCA is vacated in light of Johnson v. United States, 135 S.Ct. 2251 (2015).

Marion Wilson, Jr., v. Warden, Georgia Diagnostic Prison, No. 14-10681 (11^th Cir., August 23, 2016) (en banc): Habeas Corpus (General): This case deals with an obscure aspect of habeas law where a state appellate court issues a summary opinion, which prompts the question of whether a federal habeas court must “look through” that summary denial to the last reasoned decision issued in the case. Here, the en banc court held that federal courts do not have to do this. NOTE: The court split on this issue 6-5, and the dissent also noted the circuit split on this issue; thus, this case may be headed to the Supreme Court.

Theodore Washington v. Charles L. Ryan, No. 05-99009 (9^th Cir., August 15, 2016) (en banc): Jurisdiction (Appellate); Habeas Corpus (Equitable Tolling): In this federal habeas case, Washington filed his notice of appeal one day late. He used Rule 60(b) to move to vacate and re-enter the judgment as a get-around. In this opinion, the en banc court approved it over a sharp dissent.

 

 

MICHAEL MOREHEAD, OIDS, scored a spectacular win in the United States Supreme Court in the Bosse opinion, featured above, which vacated the opinion of the OCCA unanimously in a per curiam opinion regarding victim impact statements that recommend a sentence. Terrific job, Michael!

JUDGE BILL MUSSEMAN, Tulsa, deserves some recognition for his decision to declare a defendant indigent—even though she posted a $250,000.00 bond in a First Degree Murder case.

 

 

TRAFFIC STOPS: The Admore Police Department advises motorists to keep calm and wait for instructions when stopped for traffic violations.

OFFICER ARRESTED: A 10-year veteran of the Oklahoma City PD has been arrested for aiding prostitution; also, a former police officer from Perry has been arrested and accused of lewd acts with a child.

MONEY RECOVERED: Deputies in Ada recovered $30,000.00 being scammed from a resident in Arizona through Oklahoma.

DEWEY COUNTY: The Dewey County Courthouse is state of the art, in Taloga, Oklahoma. I have been to most of the courthouses in our state, but not this one. The county is named after Admiral George Dewey.

ADDICTION: In this Oklahoma Watch report, it seems that heroin is becoming more popular.

SPEAKER: Judge Robert Bacharach of the Tenth Circuit will be the guest speaker at the Interfaith Alliance Annual Meeting and Dinner in Oklahoma City on October 20.

NEW CHIEF: The McAlester Public Schools have hired a new chief of police. I was unaware that public schools had police forces.

PROGRAM EXPANDS: Northeastern Oklahoma State University is expanding its criminal justice department.

SMUGGLERS: Two inmates, a girlfriend, and parents were arrested for smuggling contraband into the Delaware County Jail.

AGREEMENT: The police department in Sand Springs has become the first PD to agree that officer involved shooting deaths will be investigated by the OSBI.

RESIGNATION: The Chief of Police in Boswell has resigned; also, embattled Love County Sheriff Joe Russell has resigned.

NEW DUI RULES: Governor Fallin has issued emergency rules in light of the Sample decision.

MISIDENTIFICATION: Two men testified recently at a judiciary committee on the dangers of eyewitness identification. The two had spent years in prison after being wrongly identified.

 

WACKY CRIME

 

BURGLED: A burglar in Chickasha entered a dry cleaners, apparently to steal clothing and a power drill.

HIDEY HOLE: A correctional officer at the Dick Conner Correctional Center in Hominy has found a hidey-hole of contraband buried on the yard.

BAD PLAN: A man who met an underage girl on-line and went to meet her was met, not by cops—but by the irate family members of the girl, and he found himself stuffed into the trunk of his car.

 

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OKLAHOMA CRIMINAL DEFENSE WEEKLY

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