Legal Mail Opened Outside Presence Of Inmate May Violate Sixth Amendment
“Prisoners have a Sixth Amendment right to be present when legal mail related to a criminal matter is inspected,” the U.S. Court of Appeals for the Ninth Circuit recently held. See: Mangiaracina v. Penzone, No. 14-15271 (9th Cir. 2017).Nick Mangiaracina, an Arizona prisoner, sued jail officials after his properly marked legal mail was opened twice.…
Elements of Attempted Illegal Reentry After Deportation
8 USC 1326 makes it illegal for any alien to reenter the United States after being deported. In order to be found guilty, a person must have the intention to reenter the United States and do so free from official restraint. There can be serious consequences for illegal reentry after deportation. One such case is…
Allocution Error Normally Constitutes Plain Error, Tenth Circuit Holds
Miguel Bustamante-Conchas was not afforded an opportunity to allocute showing plain error before being sentenced. Allocution is the right of a criminal defendant to tell the judge anything he or she wishes, with the hope the judge might impose a lesser sentence. The right is currently embodied in Federal Rule of Criminal Procedure 32( i)(4)(A)(ii),…
Certificate Of Appealability Standard Not The Same As Merits Determination, Supreme Court Holds
A certificate of appealability is required to appeal the denial of federal habeas relief. According to federal statute, a certificate of appealability may only be granted “if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). In some cases, prisoners can demonstrate probable success on the…
Delegation Of Judicial Authority To Probation Officer Over Supervised Release Conditions Improper
After George Yarbrough was sentenced, the court included in its written judgment two special conditions of supervised release that required the defendant to: “’participate in a vocational training program as deemed necessary and approved by the probation officer’ and ‘participate in a mental health program as deemed necessary and approved by the probation officer.’” Yarbrough…
Self Representation Erroneously Denied By State Court
Brian Foster unequivocally asked to represent himself at his state trial. The state trial court conducted a Faretta hearing to decide if it would allow Foster to represent himself. In Faretta v. California, 422 U.S. 806 (1975), the Supreme Court recognized the right of self-representation. The state district judge refused Foster’s request to represent himself,…
Hearsay Statements Not Automatically Admissible In Supervised Release Revocation Proceedings
Tremale Henry’ supervised release was revoked in part based on hearsay statements related to an alleged assault. Hearsay is an out of court statement that is offered for the truth of the matter asserted.Fed. R. Crim. P. 32.1(b)(2)(C) gives defendants in revocation proceedings the right to “question any adverse witness, unless the judge determines that…
Ineffective Assistance Of Post Conviction Counsel May Permit New Challenge To Conviction Or Sentence
In many states and at the federal level, claims of trial, sentencing, and appellate ineffectiveness must be raised through post-conviction proceedings. But what happens if your post-conviction lawyer fails to raise a claim of ineffective assistance that could have won? Or, what if you did not have a lawyer when you filed your post-conviction motion,…
What Is All This Holloway Stuff About?
Rumors can get around prison fast. A current hot topic is ” Holloway ” relief. But there are a lot of misconceptions about what “Holloway” is and how a federal prisoner may or may not be able to use it to get a sentence reduction.In 1995 Francois Holloway was convicted of three 18 U.S.C. § 924(c)…
Jones Act Prevents Enhanced Sentence Based On Spanish Language Document
The Jones, Act, 48 U.S.C. § 864, requires that “ all pleadings and proceedings in the United States District Court for the District of Puerto Rico … be conducted in the English language.” Violations of the Jones Act “will constitute reversible error whenever the appellant can demonstrate that the untranslated evidence has the potential to…