Category Archives: Issue preclusion

TX11: No spousal privilege in recorded jail calls

Defendant’s jail calls to his wife were not privileged because he knew from the recording at the start of the call that it was being recorded. Newman v. State, 2021 Tex. App. LEXIS 293 (Tex. App. – Eastland Jan. 14, … Continue reading

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CA4: Ptf’s claim the statute he was arrested under was unconstitutional is barred by DeFillippo

Plaintiff’s claim that his arrest and search was invalid because the statute under which he was stopped and arrested was unconstitutional is barred by Michigan v. DeFillippo. Quigley v. City of Huntington, 2021 U.S. App. LEXIS 760 (4th Cir. Jan. … Continue reading

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E.D.Tenn.: Address wasn’t required where picture of property was in SW

Defendant’s address wasn’t included in the affidavit for the search warrant, but its picture was and there was no mistake on the place searched. That was sufficient. United States v. Lingo, 2021 U.S. Dist. LEXIS 3861 (E.D. Tenn. Jan. 8, … Continue reading

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CA10: Ptf’s conviction barred his 1983 claim because it established facts against him under Heck

“Mr. Birch’s convictions preclude him from establishing a genuine issue of material fact as to his Fourth Amendment excessive force claims against Officers Sinclair, Page, and Stout, Fourteenth Amendment malicious prosecution claims, and Fourth Amendment false arrest claims. In dismissing … Continue reading

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CA11: Successor habeas over detention that led to confession not based on newly discovered evidence

Petitioner’s 2254 successor petition is denied on his claim that his detention was unreasonable that led to his confession. “Nero’s claims do not meet the statutory criteria. He indicates that his claims do not rely on a new rule of … Continue reading

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CA5: Ptf’s underlying conviction is attacked by his 4A claim and thus barred by Heck

“We begin with Price’s Fourth Amendment excessive force claims as alleged in his proposed amended complaint. The district court concluded that Price’s claims, even as amended, remained ‘inseparable’ from his conviction for battery of an officer and, thus, were barred … Continue reading

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E.D.Pa.: State court’s suppression of evidence is a fact question for trial on underlying facts and findings and not preclusive

Plaintiff was charged in state court with possession, and the state court credited his version over that of the officers on the basis for the stop because their testimony was contradictory and confusing. Still, that doesn’t have preclusive effect in … Continue reading

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CA10: Heck bars excessive force claim where it attacks ptf’s guilty plea

“Heck bars Mr. Hooks from recovering damages based on the first four alleged uses of force. Mr. Hooks’s no contest plea to two counts of assault and battery of a police officer means he admitted repeatedly hitting the officers before … Continue reading

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CA6: State court’s failure to remand for more factfinding was still a “full and fair opportunity to litigate” his 4A claim

Habeas petitioner’s CoA request is denied. His claim that he was denied a “full and fair opportunity to litigate” his Fourth Amendment claim because the state appellate court didn’t remand for fact finding is rejected. He had the opportunity to … Continue reading

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S.D.N.Y.: “Unconscionable breakdown” in SW litigation process can state habeas claim, but petitioner doesn’t plead or show one

“Petitioner does not argue that he was not provided a correct procedure to redress his Fourth Amendment claim. And indeed, there is no basis for such an argument, as the Second Circuit has indicated that New York’s procedure for litigating … Continue reading

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E.D.Tenn.: Issue preclusion applies in criminal cases but state’s dismissal of criminal case after motion to suppress doesn’t preclude feds

Issue preclusion applies in criminal cases, too, and the state’s dismissal of a case in the face of a successful motion to suppress doesn’t preclude the federal government from prosecuting afterward. This is a recognition of dual sovereignty. United States … Continue reading

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N.D.Cal.: Failure to mention denial of a TRO in civil litigation over similar issue material enough to get Franks hearing

The fact a TRO had been denied in a civil case involving some of the same facts was potentially material under Franks, and he gets a Franks hearing. Also, defendants have no standing in the search of a co-conspirator’s home. … Continue reading

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CA6: GPS tracking warrant litigated in state court couldn’t be habeas issue

Defendant’s habeas claim that the application for the GPS tracking warrant was based on false information was barred by Stone v. Powell. Neil v. Forshey, 2020 U.S. App. LEXIS 34461 (6th Cir. Oct. 30, 2020).* Defendant’s successive habeas petition raises … Continue reading

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CO: Hearing shots and seeing only one person running away from it was RS as to him

“Here, Officer Guagliardo heard multiple shots coming from an apartment complex and seconds later saw Oliver, and only Oliver, fleeing the area. When instructed to stop, Oliver ran faster. Officer Guagliardo heard screams coming from the complex. Based on the … Continue reading

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S.D.N.Y.: ShotSpotter alert from a rooftop led to encounter then RS

A ShotSpotter report was specific as to a shot coming from a rooftop in the Bronx. That house was the subject of many police calls. This led to defendants being encountered by officers who discussed with them what was going … Continue reading

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CA11: That state court’s 4A ruling was wrong isn’t ground for habeas relief

Habeas petitioner’s allegation state court decision on his Fourth Amendment claim was erroneous isn’t enough to get appellate review under Stone. CoA denied. Cisneros v. Sec’y, Dept. of Correction, 2020 U.S. App. LEXIS 30618 (11th Cir. Sept. 24, 2020).* There … Continue reading

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