Category Archives: Abstention

D.Utah: Defendant in prior dismissed federal action by state consumer protection agency refiled in state court won’t prevent state from using evidence obtained for that action

The state sued in federal court for relief, and it got a TRO, but the claim was later dismissed. Copies of records were made and originals returned. After the state sued in state court, the defendants sought application of the … Continue reading

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D.Haw.: USMJ’s prior civil case involving defendant didn’t make him not “neutral and detached”

The USMJ was involved in a prior qui tam civil case by defendant. Defendant in a later criminal case argues that the USMJ should have been disqualified from considering a search warrant affidavit for her property that led to the … Continue reading

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CA7 (en banc): Heck bar overcome by pardon, which started SOL

Plaintiff sued for malicious prosecution after he was imprisoned for a 1977 murder, paroled, and finally pardoned by the Governor. The pardon overcame the Heck bar, and the claim became ripe with the pardon. The court takes the occasion to … Continue reading

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CA11: No Heck bar for § 1983 false arrest claim over dismissed criminal count

The district court erred in dismissing plaintiff’s § 1983 false arrest claim against the deputy on Heck grounds because Heck did not apply–the charge that formed the basis for his § 1983 claim was dismissed, and his § 1983 suit … Continue reading

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D.Md.: Conviction at trial despite reversal on appeal forecloses § 1983 false arrest case

Plaintiff was charged with OVI and was convicted at trial. On appeal to the next level he was found not guilty of that but convicted of evading an interlock device. He sued over the OVI arrest, and it is dismissed … Continue reading

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D.Nev.: Omission of CI’s felony conviction and motive to provide information justifies Franks hearing

“As further explained below, because the investigating detective’s omission of a tipster’s felony conviction for an offense bearing on his truthfulness in her affidavit supporting her application for a search warrant that led to the discovery of evidence on that … Continue reading

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4A claims not permitted on habeas

Habeas doesn’t recognize Fourth Amendment claims. In re Lopez, 2019 Cal. LEXIS 8819 (Nov. 20, 2019). This habeas petitioner doesn’t show any likelihood of success to get appointment of counsel or a certificate of appealability. He had an opportunity to … Continue reading

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E.D.Wash.: Def’s Franks claim is barred on habeas where he knew of it all along

Defendant in his 2255 alleges a Franks violation, but he had the ability and method to do it in the district court before conviction and habeas isn’t the place. United States v. Youker, 2019 U.S. Dist. LEXIS 196001 (E.D. Wash. … Continue reading

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TN: Defense counsel’s failure to object to officer’s testimony of def’s confession during suppression hearing violated Simmons but was harmless

Defendant on post-conviction showed that defense counsel’s performance was deficient for not objecting under Simmons to a state investigator’s testimony that he confessed to the crime in his suppression hearing testimony. Defendant, however, can’t show prejudice because of the other … Continue reading

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W.D.Mo.: Officer’s limited knowledge of Spanish still enabled her consent

Defendant claimed a lack of consent due to a language barrier. The court finds one officer was proficient enough in Spanish to effectively communicate the request for consent. United States v. Molina-Lopez, 2019 U.S. Dist. LEXIS 191087 (W.D. Mo. Sept. … Continue reading

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E.D.Va.: Request for consent within 20 seconds of handing over tickets didn’t unreasonably extend stop

A request for consent within 20 seconds of handing the tickets to the defendant did not unreasonably extend the stop. The court finds the consent voluntary. United States v. Perez-Almeida, 2019 U.S. Dist. LEXIS 144705 (E.D. Va. Aug. 26, 2019). … Continue reading

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CA7: After state court affirms denial of motion to suppress, issue preclusion and abstention bar damages suit

Issue preclusion and full faith and credit deny federal courts the ability to determine a Fourth Amendment damages claim in an action after the state court denied suppression. Wade v. Barr, 2019 U.S. App. LEXIS 24723 (7th Cir. Aug. 20, … Continue reading

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