Category Archives: Abstention

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); In re Wood, Wood, 2020 Cal. LEXIS 605 (Jan. 29, 2020). This habeas petitioner doesn’t show any likelihood of success to get appointment of … 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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CA7: USDC misapplies Heck by assuming challenged search was reasonable

The district court misapplied the Heck doctrine by assuming the search of plaintiff’s car was reasonable. The real question is whether the suit is to challenge the legality of the search. “On remand, the judge will need to resolve the … Continue reading

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CA11: A late discovered search claim doesn’t support a successor 2255 petition

“Wren cannot meet the statutory criteria for filing a second or successive § 2255 motion. First, even assuming that the search warrant is ‘newly discovered’ insofar as it had been sealed, it does nothing to establish by clear and convincing … Continue reading

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CA5: Home visitation and search condition not unreasonable (plain error review)

Defendant challenged his home visitation condition under the Fourth Amendment on appeal without having objected below. It is reviewed for plain error, and it’s certainly not. United States v. Dominguez-Villalobos, 2019 U.S. App. LEXIS 23184 (5th Cir. Aug. 2, 2019).* … Continue reading

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CA8: Not a 4A violation for school resource officer to handcuff sobbing second grader

It was not unreasonable for a school resource officer to handcuff for 15 minutes a 7-year-old sobbing second grader who he suspected of active resistance to going to the principal’s office. Aside from reasonableness, qualified immunity applies because the right … Continue reading

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D.S.C.: Failure to raise excessive force claim within search claim wasn’t IAC

Defense counsel’s failure to raise an excessive force claim as a part of his arrest wasn’t ineffective assistance of counsel on the merits of the arrest or subsequent search. Waters v. United States, 2019 U.S. Dist. LEXIS 128341 (D. S.C. … Continue reading

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CA10: While some might disagree with OCCA’s opinion on abandonment, it’s not “unreasonable” under AEDPA

This is a § 2254 habeas challenging via an IAC claim whether defense counsel properly litigated his motion to suppress over whether his backpack was abandoned. That was also resolved in the Oklahoma Court of Criminal Appeals. While people might … Continue reading

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D.Ariz.: Affidavit of another didn’t show offer of proof for standing

The declaration used to attempt to show defendant’s guest standing doesn’t tie defendant’s relationship to the property to the time of the search. Moreover, on the day in question, his truck was parked along a fence far enough from the … Continue reading

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CA11: Carpenter not retroactive for a successor habeas

Carpenter not retroactive for a successor habeas. In re Symonette, 2019 U.S. App. LEXIS 20428 (11th Cir. July 9, 2019):

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D.Conn.: Ptf’s § 1983 case over his search that led to his conviction is barred by Heck

Plaintiff’s suit against his search and seizure that led to his conviction is barred by Heck v. Humphrey. “The appropriate vehicle for such a challenge is not § 1983 litigation, but direct or collateral appeal.” Gonzalez v. Yepes, 2019 U.S. … Continue reading

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