Wake Forest Law Review

By: Hailey Cleek & Mike Garrigan

In 2014, David E. Abbott, a detective with the Manassas City Police Department in Virginia, investigated allegations that seventeen-year-old Trey Sims used his cell phone to send sexually explicit photographs and video recordings of himself to his fifteen-year-old girlfriend.[1] Detective Abbott obtained a search warrant authorizing photography of Sims’ naked body, including his erect penis. When Abbott executed the warrant, he allegedly demanded that Sims manipulate his penis to achieve an erection. Sims unsuccessfully attempted to comply with Abbott’s order. Detective Abbott died before the present case was filed. Sims therefore initiated this action against Kenneth Labowitz, the administrator of Abbott’s estate.

Suspect Sims brought a 42 U.S.C. § 1983 action[2] against the administrator of Detective Abbott’s estate, alleging that this search violated his Fourth Amendment right of privacy and that, as result of search, he was victim of manufactured child pornography. Traditionally, public officials are granted either absolute or qualified immunity from lawsuits when performing their official duties.[3] Qualified immunity is generally extended to police officers or other officials. Yet, actions taken by these officials with a “deliberate indifference” may impose liability.[4] The district court determined that the administrator was entitled to qualified immunity on the § 1983 claims. The Fourth Circuit heard arguments on whether a reasonable police officer would have known that attempting to obtain a photograph of a minor child’s erect penis, by ordering the child to masturbate in the presence of others, would unlawfully invade the child’s right of privacy under the Fourth Amendment.

Plaintiff’s Arguments

Plaintiff argued that while the Fourth Amendment does at times protect sexually invasive searches, Detective Abbott clearly violated personal privacy rights. In examining sexually invasive searches under the Fourth Amendment, courts balance “the invasion of personal rights caused by the search against the need for that particular search.”[5] Factors to determine this balance are: (1) the scope of the particular intrusion; (2) the manner in which the search was conducted; (3) the justification for initiating the search; and (4) the place in which the search was performed.[6] Courts have described such sexually invasive searches, including strip searches, as humiliating and demeaning.[7] In  King v. Rubenstein,[8] the Fourth Circuit previously held that sexually invasive searches relate to deep “interest[s] of bodily integrity,” which “involves the most personal and deep-rooted expectations of privacy.”[9]

Using these factors, Plaintiff-Appellant Sims illustrated the severe Fourth Amendment violations by Detective Abbott. Although Detective Abbott sought to obtain photographs of Sims’ erect penis for an evidentiary purpose, the Commonwealth ultimately agreed not to use the photographs of Sims’ body as evidence.[10] There was no need to take these photographs. Instead, Detective Abbot executed the search warrant by ordering teenager Sims to masturbate to obtain an erection in the presence of three armed officers.[11] Such alleged conduct would necessarily invade Sims’ bodily integrity, regardless if Sims’ body was not penetrated or physically harmed.[12] Plaintiff was humiliated throughout the reckless disregard of his bodily privacy; he deferred applying for college, despite his outstanding academic and extracurricular records.[13] Throughout the investigation and prosecution, he was mortified to face his peers.[14]

Plaintiff strongly asserted that Detective Abbott was not entitled to qualified immunity. Qualified immunity only protects public officials from constitutional violations when resulting from “reasonable mistakes.”[15] It does not protect “the plainly incompetent or those who knowingly violate the law.”[16] A Virginia police detective is properly charged with knowledge of laws criminalizing the creation of child pornography.[17] There is no exception for police officers. While there were fortunately no other related cases on point to illustrate a lack of exception, the Fourth Circuit has previously held that some facts of abuse are so clear that they do not require case law justification.[18] Beyond a passive excuse of following orders, Detective Abbott had no reason to believe that this search was reasonable. Yet, even with a warrant, Detective Abbott was not bound to seek or execute a plainly unconstitutional warrant.[19] The request of a prosecutor for a search is not nullifying to the responsibility to act reasonably. An officer cannot receive the protections of qualified immunity when asking a teenager to masturbate in front of three armed guards.

Defense’s Arguments

Labowitz asserted that Sims failed to state enough facts to support a Fourth Amendment violation.[20] Here, Labowitz argued that Abbott’s search neither placed Sims at risk of bodily harm nor physically invaded Sims’ body,[21] and therefore fell outside of Fourth Amendment protection. The defense used four arguments to assert that this search fell outside of Fourth Amendment protection. First, Labowitz cited several cases where valid search warrants were issued in similar circumstances–namely involving identifying scars, moles, and/or tattoos on a suspect’s genitalia.[22] Second, Labowitz observed that Abbott took no action that aimed to bring about an erection by Sims.[23] Third, Labowitz cited multiple cases that validate warrantless custodial strip searches of juveniles.[24] Finally, Labowitz argued that a photograph is not invasive, but even if it were, case law supports warrantless searches of a defendant’s physical person in certain circumstances.[25]

Labowtiz also argued that the district court properly recognized Abbott’s immunity. Qualified immunity protects government officials from civil liability as long as their conduct does not “violate clearly established statutory or constitutional rights of which a reasonable person would have known.”[26] Here, the key question was whether Abbott “acted as an objectively reasonable police officer would have acted under similar circumstances.”[27]  Labowitz offered three reasons why Abbott behaved as a reasonable police officer.[28] First, a reasonable officer would rely on a warrant an attorney directed him to seek. Second, a reasonable officer would conclude that strip search conducted at a detention center under a warrant is appropriate. Third, no reasonable officer would have thought that he was producing child pornography when acting under a search warrant.

Sexually Intrusive Search Jurisprudence Addresses Questions for Immunity

While the majority for the Fourth Circuit strongly condemned Detective Abbott’s actions and held that such alleged conduct necessarily invaded Sims’ bodily integrity and privacy rights,[29] Judge King, in a dissenting opinion, notes that the case raises distinct questions for qualified immunity.[30] He notes that Detective Abbott was acting pursuant to the advice of counsel and adhering to a court order.[31] It is a foundational rule to the legal system and independent judiciary that court orders should be respected, complied with, and obeyed among law enforcement officers.[32] Court orders ensure compliance with the rule of law in society, and public officials are bound by both the cultural and institutional weight afforded to judge’s decisions.[33] When a judicial officer, Judge King suggests, has issued a search warrant upon probable cause, it is “unreasonable to require the officer charged with executing the warrant to reject the judicial decision and disobey the court’s directive.”[34] Generally, citizens want officers to comply and follow court orders in respect for the rule of law

Although the rule of law encourages officers to comply with and follow warrants accordingly, an entire body of sexual search jurisprudence has emerged to establish limits on sexually invasive searches. In Illinois v. Lafayette,[35] the Supreme Court held that an officer cannot disrobe an arrestee publicly without justifying factors. In United States v. Edwards,[36] the Fourth Circuit held that an officer’s sexually invasive search was unlawful because the dangerous manner in which he removed the contraband outweighed the interest in retrieving contraband. Likewise, in Amaechi v. West,[37] the Fourth Circuit found no justification for an officer’s pat-down search to include touching arrestee’s buttocks and penetrating her exposed genitalia. While these cases involved warrantless searches, they highlight the plainly unreasonable nature of the present case, as sexually invasive searches generally only happen in exigent circumstances.[38] Officers are encouraged to follow the boundaries of the search warrant, yet citizens cannot be expected to tolerate an officer acting beyond the guided parameters of sexual search warrants. Here, the warrant did not authorize Abbott’s conduct of requiring Sims to masturbate in the presence of the officers.[39] There was neither an evidentiary justification nor valid reason to demand Sims to masturbate in the presence of others.[40]

Conclusion

A little over a month after the Fourth Circuit heard Sims v. Labowitz, the Children’s Justice Fund (“CJF”), a nonprofit organization dedicated to aiding victims of child sex abuse, filed an amicus brief in support of a rehearing.[41] CJF argued that the Fourth Circuit panel erred by defining “sexually explicit conduct” in a way that could have “potentially profound implications for this case and future plaintiff victims.”[42] The Court, CJF argued, eschewed four objective terms for a subjective term. “Sexual intercourse,” “bestiality,” “masturbation,” and “sadistic or masochistic abuse” are more or less objective while “lascivious exhibition of the genitals or pubic area” relies on subjective “Dost factors.”[43] CJF contended that masturbation is per se explicit conduct under 18 U.S.C. § 2256(2)(A) and bringing Dost factors into the analysis was “unnecessary and unwarranted.”[44]

On March 14, 2018, the Fourth Circuit granted the motion for rehearing. While the rehearing will likely only correct the definitional scope of “sexually explicit conduct,” Sims reinforces the limits of police immunity. Moving forward, public officials in Maryland, South Carolina, North Carolina, West Virginia, and Virginia are officially on notice that such unreasonable sexual search conduct is not permissible. In line with previous sexual search jurisprudence, the Fourth Circuit has reaffirmed the bodily integrity of individuals.

 

 

 

[1] Sims v. Labowitz, 877 F.3d 171 (4th Cir. 2017).

[2] This refers to lawsuits brought under Section 1983 of Title 42 of the United States Code. See 42 U.S.C. § 1983. Section 1983 provides an individual the right to sue state government employees and others acting “under color of state law” for civil rights violations.

[3] Janell M. Byrd, Rejecting Absolute Immunity for Federal Officials, 71 Cal. L. Rev. 1707, 1713 (1983).

[4] See Farmer v. Brennan, 511 U.S. 825, 843 (1994).

[5] Bell v. Wolfish, 441 U.S. 520, 559 (1979).

[6] Id.

[7] See, e.g., Mary Beth v. City of Chicago, 723 F.2d 1263, 1272 (7th Cir. 1983).

[8] 825 F.3d 206 (4th Cir. 2016).

[9] Id. at 215.

[10] Brief for Appellant at 10–11, Sims v. Labowitz, 877 F.3d 171 (2017) (No. 16-2174).

[11] Id. at 8.

[12] Id. at 38 (“Manifestly, this amounts to ‘state intrusion[] into realms of personal privacy and bodily security through means so brutal, demeaning, and harmful as literally to shock the conscience of a court.’”)(quoting Hall v. Tawney, 621 F.2d 607, 613 (4th Cir. 1980)).

[13] Id. at 12.

[14] Id.

[15] Saucier v. Katz, 533 U.S. 194, 206 (2001).

[16] Malley v. Briggs, 475 U.S. 335, 341 (1986).

[17] Brief for Appellant at 36, Sims v. Labowitz, 877 F.3d 171 (2017) (No. 16-2174).

[18] Clem v. Corbeau, 284 F.3d 543, 553 (4th Cir. 2002) (“[W]hen the defendants’ conduct is so patently violative of the constitutional right that reasonable officials would know without guidance . . .  closely analogous pre-existing case law is not required to show the law is clearly established.”).

[19] See Graham v. Gagnon, 831 F.3d 176, 183 (4th Cir. 2016)(“I]f no officer of reasonable competence would have requested the warrant… [t]he officer then cannot excuse his own default by pointing to the greater incompetence of the magistrate.”).

[20] Sims v. Labowitz, 877 F.3d 171, 177 (4th Cir. 2017).

[21] Id.

[22] Response Brief for Appellee at 10, Sims v. Labowitz, 877 F.3d 171 (2017) (No. 16-2174).

[23] Id. at 11.

[24] Id. at 12.

[25] Id. at 13.

[26] Harlow v. Fitzgerald, 457 U.S. 800 (1982).

[27] Defendant Estate of David Abbott’s Memoradum in Support of Motion to Dismiss Second Amended Complaint at 17, Sims v. Labowitz, 877 F.3d 171 (2017) (No. 16-2174).

[28] Response Brief for Appellee at 30, Sims v. Labowitz, 877 F.3d 171 (2017) (No. 16-2174).

[29] Sims v. Labowitz, 877 F.3d 171, 178 (4th Cir. 2017).

[30] Id. at 183 (J. King, dissenting).

[31] Id.

[32] Id.

[33] See Stephen G. Breyer, Judicial Independence in the United States, 40 St. Louis U. L.J. 989, 994-96 (1996)

[34] Sims v. Labowitz, 877 F.3d 171, 184 (4th Cir. 2017) (J. King, dissenting).

[35] 462 U.S. 640 (1983).

[36] 666 F.3d 877 (4th Cir. 2011).

[37] 237 F.3d 356 (4th Cir. 2001).

[38] Sims v. Labowitz, 877 F.3d 171, 182 (4th Cir. 2017).

[39] Id. at 182, n. 3.

[40] Id. at 180.

[41] Under Federal Rule of Appellate Procedure 27(b)(2), “[t]he United States or its officer or agency or a state may file an amicus-curiae brief without the consent of the parties or leave of court. Any other amicus curiae may file a brief only by leave of court.”

[42] Amicus Brief of the Children’s Justice Fund and Child USA in Support of the Plaintiff-Appellant Trey Sims at *4, Sims v. Labowitz, 877 F.3d 171 (2017) (No. 16-2174).

[43] Id. at *3.

[44] Id. at *8.

On February 16, 2018, the United States Court of Appeals for the Fourth Circuit published an opinion for U.S. v. Cowden.

I. Facts and Procedural History

This case involves the appeal of Defendant Mark Cowden, who was charged with deprivation of rights under color of law under 18 U.S.C. § 242, and knowingly making a false statement to impede a federal investigation under 18 U.S.C. § 1519.

Michael Hoder, a West Virginia State Police Trooper, initiated a traffic stop of Ryan Hamrick, who was speeding and had a taillight violation. As Hoder attempted to arrest Hamrick, Hamrick engaged in a physical altercation with Hoder. Hoder called for additional law enforcement assistance, which arrived after Hoder had effectively placed Hamrick under arrest. Hamrick was then driven to the HCSO station for processing, without offering further resistance or speaking in any threatening manner to the officers.

Defendant Mark Cowden, an HCSO lieutenant, was waiting to process Hamrick when he learned that Hamrick resisted Hoder’s efforts in arresting him. Officers surrounding Defendant Cowden noticed that he was “unusually hostile” and stating threats against Hamrick for his behavior. When Hamrick arrived at the station, he was restrained in handcuffs securing his hands behind his back, and he was not threatening any officers physically or verbally. Hamrick did display a “loud and drunken demeanor,” but no other officers other than Defendant Cowden perceived him as a threat.

As Hamrick was entering the lobby of the HCSO, he attempted to pull away from Cowden and Sergeant Cline, who were escorting him in the building. Even though no other officers viewed this as a threat, Defendant Cowden “pulled Hamrick toward the elevator and threw him against the wall.” Cowden then slammed Hamrick’s head into the wall and told Hamrick that he was in “our house” and that Hamrick needed to “play by our rules.” Cowden continued to physically abuse Hamrick, until Sergeant Cline intervened and told Cowden to “back off.” After the altercation, Hamrick had injuries around his face and was bleeding from his nose and mouth. He was taken to a hospital to receive additional care, which costed $3,044.

At trial, the district court allowed the jury to hear evidence regarding Defendant Cowden’s previous use of force on two prior occasions during other criminal investigations. The district court instructed the jury that it “may not consider” that evidence “in deciding if the defendant committed the acts charged in the indictment.” Instead, the judge charged the jury that they should only use the evidence to show the state of mind or intent necessary to commit the crime charged in the indictment and to show that it was not due to mistake or accident. Cowden also submitted proposed jury instructions to the district court, which included a generic “Lesser Included Offenses” instruction, showing that a charge of Section 242 can qualify as a lesser offense depending on whether a victim suffered bodily injury. The district court, however, adopted the government’s proposed instructions of Section 242, and Cowden did not object to the court’s decision at the charge conference.

The jury acquitted Cowden of the false statement charge but found Cowden guilty on the deprivation of rights charge. Cowden appealed the decision.

II. Issues Presented

Four issues were presented on this appeal: (1) whether evidence of Cowden’s two prior uses of force were properly admitted by the district court; (2) whether the evidence was sufficient to support his felony conviction; (3) whether the jury was properly instructed on the elements of the Section 242 offense; and (4) whether Cowden was improperly held liable for injuries Hamrick sustained at the time he was arrested by another law enforcement officer.

III. Holding

The United States Court of Appeals for the Fourth Circuit held in the following manner for each issue on appeal: (1) evidence of Cowden’s two prior uses of force was properly admitted by the district court; (2) the evidence was sufficient to support his felony conviction; (3) Cowden failed to show plain error regarding the denial of a particular jury instruction; and (4) Cowden was properly held liable for injuries Hamrick sustained at the time he was arrested by another law enforcement officer.

IV. Reasoning 

The court reasoned that evidence of Cowden’s two prior uses of force was properly admitted by the district court because, although potentially constituting prior “bad acts,” the evidence was properly admitted under an exception to Rule 404(b). The evidence was used to help establish the defendant’s state of mind and not simply that he had a propensity for violence. In addition, the court concluded that any possible unfair prejudice did not “substantially outweigh” the probative value of this evidence.

Next, the court concluded that the evidence provided by the government was more than sufficient to support the jury’s determination that Cowden acted willfully. From the evidence presented, the jury could conclude that Cowden, while acting as a law enforcement officer, willfully used unreasonable force against Hamrick.

The court then determined that Cowden failed to show any error, let alone plain error, regarding the court’s denial of his requested jury instruction. The court reasoned that the instructions given by the district court correctly explained the statutory distinctions, permitting the jury to find Cowden guilty of a misdemeanor rather than a felony if the jury determined that Hamrick had not suffered a bodily injury as a result of Cowden’s actions. Thus, although the district court used different words, it instructed the district court as Cowden requested.

Lastly, the court reasoned that the government carried its burden of showing by a preponderance of the evidence “the amount of the loss sustained by a victim as a result of the offense.” Therefore, based on the overwhelming evidence regarding the injuries Hamrick sustained as a result of Cowden’s actions, the court held that the district court acted within its discretion in requiring Cowden to pay the full amount of Hamrick’s medical expenses.

 

 

By: Adam McCoy and Shawn Namet

Kenny v. Wilson

In this civil case, plaintiff-appellants, Kenny, argued the district court incorrectly dismissed their 42 U.S.C. § 1983 claim for lack of standing for failure to state an injury in fact.  The plaintiff-appellants challenge two South Carolina statutes as unconstitutionally vague that criminalize any person, including students, from disturbing any school or college.  The district court found fear of future arrest and prosecution under the vague statutes was not an injury sufficient to provide standing.  The Fourth Circuit overturned the district court decision and found the plaintiffs did have standing to challenge vagueness where they had been previously charged under the statute and did not know what future actions would be interpreted as violations.  The Fourth Circuit also found standing for claims that the statutes chill First Amendment speech because they were too vague to constitute what may be considered a violation.

Hodgin v. UTC Fire & Security Americas Corp., Inc.

In this civil case, the plaintiff-appellants, Hodgin, sued UTC Fire & Security Americas Corp., Inc., and Honeywell International, Inc., claiming they were vicariously liable for illegal calls made by telemarketers in violation of the Telephone Consumer Protection Act.  The district court granted summary judgment to UTC and Honeywell after denying plaintiffs’ motion to postpone the ruling on summary judgment until after the close of discovery.  The Fourth Circuit affirmed the district court’s denial of the motion to postpone because the plaintiffs failed to show the discovery allowed was not sufficient to allow them to find evidence to oppose summary judgment.  The plaintiffs had sufficient opportunity to depose the defendants and failed to identify what information they could have discovered to defeat summary judgment.

Sims v. Labowitz

In this civil case, the plaintiff-appellants, Sims, sued under 42 U.S.C. § 1983 alleging police detective Abbot’s search of his person violated the Fourth and Fourteenth Amendments by trying to force seventeen-year-old Sims to recreate a sexual explicit image he had sent a fifteen-year-old girl.  The district court dismissed the complaint based on Abbot’s qualified immunity.  The Fourth Circuit overturned the district court because a reasonable officer would have known that attempting to force a minor to recreate the sexually explicit image would invade the minor’s right to privacy.  Abbot would not be entitled to qualified immunity because a reasonable officer should have known the that action violated the constitution.

Sky Angel U.S., LLC v. Discovery Communications, LLC

This case involved a contract dispute between television distributor Sky Angel U.S. and media company Discovery Communications.  Discovery terminated its contract granting distribution rights to Sky Angel upon discovering that Sky Angel’s IPTV distribution system delivered content to consumers over the “public internet” without using a closed dedicated pathway.  The Fourth Circuit affirmed the District Court of Maryland’s finding that the contract was ambiguous on this point, and found that the District Court therefore properly considered extrinsic evidence.  The Fourth Circuit further agreed with the District Court that the extrinsic evidence established that Sky Angel had no reasonable expectation that it could distribute Discovery programming over the public internet because Discovery made its internal policy disallowing the distribution model clear to Sky Angel.

Int’l Brotherhood Local 639 v. Airgas, Inc.

In this labor dispute, the Fourth Circuit affirmed the District Court of Maryland’s issuance of a preliminary injunction preventing Airgas, Inc. from relocating some operations to nonunion facilities until the arbitrator in the case had issued a final decision regarding whether the relocation violated the collective bargaining agreement.  On appeal, however, the Fourth Circuit found the case to be moot because the arbitrator made a final decision in favor of the Union while Airgas’s appeal was pending.  The Fourth Circuit rejected Airgas’s argument that the case was still “live” because it would be entitled to damages in the event that the Fourth Circuit held the District Court had no jurisdiction to issue the injunction. Instead, the Fourth Circuit held that Airgas would not be entitled to damages because it had only been prevented from taking action it had no legal right to take under the collective bargaining agreement.  The Fourth Circuit added that while federal courts generally lack jurisdiction to issue injunctions in labor disputes, the case fell within the exception for cases in which the arbitrator would otherwise be unable to restore the status quo ante.

The dissent argued that the district court’s exercise of jurisdiction dangerously broadened a narrow exception.  According to the dissent, the case would set a precedent allowing courts to unduly interfere with labor disputes, noting that the extensive litigation surrounding the injunctive relief in this case was contrary to the purpose of the parties submitting to mandatory arbitration in the first place.  Further, the dissent argued that the case was not moot, as the district court’s lack of jurisdiction should have at least entitled Airgas to the $5,000 injunction bond paid by the Union.

U.S. v. Savage

In this criminal case, Defendant Savage appealed his convictions for banking fraud and identity theft on the basis that the district court did not conduct an in camera review of the prosecutor’s notes to determine whether information was being withheld that could impeach his accomplice’s testimony against him.  Savage enlisted an accomplice employed by the targeted bank to provide him with identifying information in customer’s accounts.  The accomplice agreed to testify against Savage.  Before the court is required to conduct in camera inspection under the Jencks Act, a defendant must establish a foundation for the request by stating with reasonable particularity a basis for his belief that material subject to required disclosure under the act exists.  Under the rule set forth in Brady v. Maryland, a defendant must show that “the non-disclosed evidence was favorable to the defendant, material, and that the prosecution had the evidence and failed to disclose it.”  373 U.S. 83 (1963).  The Fourth Circuit rejected Savage’s argument that the existence of some inconsistent statements properly disclosed by the prosecution required the district court to conduct in camera review of the prosecutor’s personal notes to determine if additional inconsistent statements were made.  Similarly, the existence of the disclosed inconsistent statements was insufficient to establish that the prosecution had additional material information it failed to disclose.

The Fourth Circuit rejected Savage’s argument that the district court erred in denying his requested jury instruction that would have instructed the jury to closely scrutinize accomplice testimony.  The jury found no error in refusing to distinguish accomplice witnesses from all witnesses and that the district court properly instructed the jury to closely scrutinize all witness testimony when determining credibility.

Savage also argued that the district court erred in permitting the jury to receive written jury instructions regarding aiding and abetting after declining to provide written copies of all jury instructions.  The Fourth Circuit rejected Savage’s argument, citing the strong deference afforded to trial courts in the use of jury instructions, finding no abuse of discretion.

U.S. v. Bell

This appeal arose from the district court’s order finding Respondent Kaylan Bell to be a “sexually dangerous person” under the Adam Walsh Child Protection and Safety Act of 2006, thereby civilly committing him to the custody of the Attorney General upon his release from prison.  Bell had a long history of numerous sexual offenses involving children, beginning in 1999, which were predominantly for repeatedly exposing himself to minors.  He challenged the district court’s finding that he would have serious difficulty refraining from child molestation upon release because it had been eighteen years since his last “hands-on” child molestation offense.  The Fourth Circuit affirmed the district court’s findings that, despite the time lapse, Bell’s repeated offenses established an inability to control his impulses.  The Fourth Circuit also found that the district court properly credited an expert who had twice prior declined to reach the conclusion that Bell was a sexually dangerous person as defined by the act because she had changed her position only after Bell reoffended just two weeks after his last release.

Schilling v. Schmidt Baking Company, Inc.

In this civil case, plaintiffs appealed the district court’s dismissal of their claims for overtime wages under the Federal Labor Standards Act (FLSA), the Maryland Wage and Hour Law, and the Maryland Wage Payment and Collection Law.  Under the FLSA, professional motor carriers, like Schmidt Baking Company, are generally exempt from the overtime wages requirement.  However, Congress recently waived this exemption for employees whose work affects the safety of vehicles weighing 10,000 pounds or less.  In concluding that the plaintiffs were protected by the FLSA waiver, the Fourth Circuit reversed the district court’s dismissal of the FLSA claims but affirmed the court’s dismissal of the claims brought under Maryland law.

Juniper v. Zook

In this criminal case, Anthony Juniper appealed the district court’s denial of his request for an evidentiary hearing concerning his claim that prosecutors failed to turn over exculpatory and impeaching evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963).  The Fourth Circuit vacated the district court’s decision as to Juniper’s Brady claim, concluding that the district court abused its discretion by dismissing the claim without an evidentiary hearing.  The case was remanded to the district court for further proceedings.

Hensley v. Price

In this civil case, Deputies Michael Price and Keith Beasley appealed the district court’s denial of their motion for summary judgment, which asserted federal qualified immunity and related North Carolina state law defenses.  The Fourth Circuit affirmed the district court’s judgment, concluding that the deputies were not entitled to qualified immunity because their use of force was objectively unreasonable under the circumstances described through plaintiffs’ evidence.  In addition, the Fourth Circuit concluded that the deputies’ related state law defenses failed under the evidence taken in the light most favorable to the plaintiffs.         

OpenRisk, LLC v. Microstrategy Services Corp.

In this criminal case, OpenRisk appealed the district court’s grant of summary judgment in favor of Microstrategy, in which the court held that Federal copyright laws preempted OpenRisk’s computer fraud claims. The Fourth Circuit affirmed the district court’s judgment, concluding that the plaintiff’s computer fraud claims were preempted by the federal Copyright Act since the plaintiff’s sought liability based upon claims that, at their “core,” are not “qualitatively different” from the federal claims.

Maguire Financial, et al. v. PowerSecure International, Inc., et al.

In this civil case, Maguire Financial appealed the district court’s dismissal of its amended complaint containing claims of securities fraud. The Fourth Circuit affirmed the district court’s dismissal, concluding that Maguire Financial’s complaint failed to adequately allege scienter since a comprehensive analysis of the facts within the amended complaint did not create a “cogent and compelling” inference of scienter.  

United States v. Banker

In this criminal case, Banker appealed his convictions for conspiracy to engage in sex trafficking of a minor, sex trafficking of a minor, and enticement of a minor for illegal sexual activity. The Fourth Circuit affirmed Banker’s convictions, concluding that the district court’s jury instructions did not misstate the law and that there was sufficient evidence concerning the elements that the defendant knew or recklessly disregarded that the minor was underage.

By: Adam McCoy & Shawn Namet

U.S. v. Palin
In this criminal case, the defendants argued the government did not sufficiently prove the materiality requirement of health care fraud to convict for submitting to the insurance company medically unnecessary and more expensive tests to increase profits.  Materiality requires showing the misrepresentation effected the insurance company’s decision to pay the claim.  The Fourth Circuit affirmed the conviction and found there was sufficient evidence of materiality because insurers would not have paid for the more expensive tests submitted by the defendants if they had known the tests were not medically necessarily.

U.S. v. Ali
In this civil case, Melina Ali appealed the district court’s order holding her in contempt after she failed to produce certain documents in response to an administrative summons issued by the IRS, arguing that the Government failed to establish her possession or control of additional responsive documents.  The Fourth Circuit affirmed the district court’s judgment, finding sufficient evidence in the record to establish that Ali’s production was presumptively incomplete, and that the burden shifted to Ali to demonstrate her good faith efforts to produce responsive documents.

Weekly Roundup: 10/23-10/27
By: Hanna Monson and Sarah Spangenburg

United States v. Julian Zuk
In this criminal case, the Government appealed the district court’s sentencing of defendant Julian Zuk as being “substantively unreasonable” after he had pled guilty to possessing child pornography as part of a plea agreement. The Fourth Circuit vacated the sentence and remanded for resentencing, reasoning that the 26 month time served sentence was not sufficient “to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment.” 18 U.S.C. § 3553(a)(2)(A).

Campbell McCormick, Inc. v. Clifford Oliver
In this civil case, Campbell McCormick, Inc appealed an order of a federal district court that severed and remanded Oliver’s asbestos exposure claims against it. The Fourth Circuit dismissed the appeal for lack of appellate jurisdiction and also held that the elements for jurisdiction under the collateral order doctrine were not met.

SAS Institute, Inc. v. World Programming Limited
In this copyright case, SAS alleged that WPL breached a license agreement for SAS software and violated copyrights on that software. The Fourth Circuit agreed with the district court that the contractual terms at issue were ambiguous and that SAS had shown that WPL violated the terms. However, on the copyright claim, the Fourth Circuit vacated the district court’s judgment and remanded with instructions to dismiss as moot.

United States v. Shawntanna Lemarus Thompson
In this criminal case, Thompson pled guilty to a drug offense and being a felon in possession of a firearm. Thompson appealed his sentence after the district court increased his sentence when it found that Thompson’s previous state conviction for assault inflicting serious bodily harm constituted a “crime of violence” under § 4B1.2 of the U.S. Sentencing Guidelines. The Fourth Circuit affirmed the sentence because the residual clause of § 4B1.2 authorized the district court’s increased sentence.

Weekly Roundup 10/9-10/13
By: Evan Reid & Ashley Collette

United States v. Salmons
In this criminal case, the defendant appealed the district court’s decision, which found his prior crime of aggravated robbery was a predicate crime under the force clause of U.S.S.G.§ 4B1.2, thus requiring a longer minimum sentence. The Fourth Circuit affirmed the judgment of the district court, holding that aggravated robbery was categorically violent.

Fawzy v. Wauquiez Boats SNC
In this admiralty and maritime case, the plaintiff appealed the district court’s decision dismissing the case for lack of jurisdiction. The Fourth Circuit dismissed the appeal for lack of appellate jurisdiction, finding that the district court’s decision was not final because the plaintiff had filed an amended complaint prior to the court’s dismissal of the case.

Lucero v. Early
In this First Amendment case, the plaintiff appealed the district court’s decision dismissing his claim challenging the constitutionality of a protocol that he was arrested for violating. The Fourth Circuit vacated the judgment of the district court and remanded the case, finding the district court did not consider all relevant facts and law in determining whether the protocol was content neutral.

Siena Corporation v. Mayor and City Council of Rockville, Maryland
In this civil case, the plaintiff appealed the district court’s dismissal of its claim that the City Council violated its constitutional rights when it passed a zoning amendment prohibiting the construction of a self-storage facility based on its proximity to a school. The Fourth Circuit affirmed the dismissal, holding that the plaintiff did not have a constitutionally-protected property right.

By Adam McCoy

On Monday, September 25, 2017, the Fourth Circuit issued a published opinion in a criminal case, United States v. Marshall.  Andracos Marshall (“Marshall”) was found guilty of several crimes including conspiracy to commit money laundering.  The Government filed motions for forfeiture and district court entered an order for forfeiture in amount of $51,300,000, including $59,000 in untainted funds in Marshall’s credit union account as substitute assets.  Marshall filed a motion to use the $59,000 in untainted funds to hire appellate counsel.  The Fourth Circuit denied his motion to use forfeited funds to hire appellate counsel.

Facts and Procedural History

In 2014, the Government indicted Marshall for several crimes, including conspiracy to distribute a controlled substance, possession of a controlled substance with intent to distribute, and conspiracy to commit money laundering.  In the indictment, the Government indicated it would seek forfeiture of substitution assets if property from Marshall’s crimes could not be found.  Under 21 U.S.C. § 853(a), the Government may seek forfeiture of tainted property connected to certain felonies, and § 853(p) allows forfeiture of substitute property if the tainted property is not available.  Marshall was eventually convicted on all counts, and the Government sought forfeiture of $108 million of criminally obtained proceeds.  The district court entered an order of forfeiture for $51,300,000.  In a second motion for forfeiture, the Government requested forfeiture of $59,000 in Marshall’s credit union account as substitute assets under § 853(p).  The district court granted the motion, but the Fourth Circuit stayed it until the Court could hear Marshall’s motion to use the untainted $59,000 to hire appellate counsel.

Defendant Does Not Have Right to Forfeited Funds to Pay for Appellate Counsel

Marshall argues he has a Constitutional right to substitute assets forfeited after his conviction if the funds are needed for his appellate representation.  The Fourth Circuit relied on Supreme Court precedent regarding the right to appellate counsel to make its decision in this case.  The right to appellate counsel is statutory, not constitutional. However, courts have held that when right to appellate counsel is granted, counsel must be provided.  The Supreme Court did recognize in United States v. Gonzales-Lopez, 548 U.S. 140, 144 (2006) that defendants who do not require court-appointed counsel have the right to choose who will represent them.  However, the Supreme Court has never recognized a right to choose one’s counsel on appeal.  Even assuming Marshall had the right to choice of counsel on appeal, he still did not have right to use forfeited funds to hire appellate counsel.  In Caplin & Drysdale, Chartered v. United States, 491 U.S. 617 (1989), the Supreme Court held the Sixth Amendment right to counsel does not allow a defendant to use forfeited funds connected to the crimes charged to pay trial counsel’s fees after conviction.  The Court reasoned property connected to a crime that was forfeited became the Government’s property  “at the time of the criminal act giving rise to forfeiture.” Id. at 627.  The Supreme Court did allow access to untainted assets that were frozen pretrial and needed to hire an attorney. Luis v. United States, 136 S. Ct. 1083 (2016).  However, the focus of this decision was on the pretrial nature of the assets and their lack of connection to the crime.  The Court said the defendant still had a clear ownership of the assets because there was no conviction, as opposed to the post-conviction setting when forfeiture gives the Government a clear interest.

The Fourth Circuit used the Supreme Court’s approach to pretrial restrictions of untainted assets in Luis and the approach to post-conviction assets in Caplin & Drysdale to determine that Marshall could not use his forfeited untainted assets to hire appellate counsel.  The ability of defendants to use assets to pay for counsel depends on who clearly owns the property.  According to Luis, if the defendant clearly owns the property he has a right to use it to pay for his counsel of choice. 136 S. Ct. at 1091.  However, the Government takes title to forfeited property, including § 853(p) substitute property, at the time of conviction. 136 S. Ct. at 1101.  The Fourth Circuit applied this to mean Marshall’s substitute property, the $59,000 credit union funds, became the Government’s property when the district court issued the forfeiture order after Marshall’s conviction.  This means Marshall no longer owns the property.  The Fourth Circuit further held that the Government’s ownership of the property was enough to override Marshall’s Sixth Amendment right to use those funds to hire appellate counsel of his choice. 491 U.S. at 631.  Relying primarily on Caplin & Drysdale and Luis, the Fourth Circuit held the $59,000 forfeited untainted assets were the property of the Government, and therefore Marshall had no right to use them to hire his appellate counsel of choice.

Conclusion

The Fourth Circuit denied Marshall’s motion to use his forfeited funds to hire his appellate counsel of choice.

By Ali Fenno

On November 23, 2016, the Fourth Circuit issued a published opinion in the criminal case of Rodriguez v. Bush.  In Rodriguez, the Fourth Circuit addressed whether the failure of Nicanor Perez Rodriguez’s (“Rodriguez”) trial counsel, James Ervin (“Ervin”), to object to a trial judge’s rejection of Rodriguez’s plea agreement constituted “ineffective assistance of counsel” that justified relief under 28 U.S.C. § 2254.  After applying a deferential review standard for ineffective assistance and state-adjudicated § 2254 claims, the Fourth Circuit held that Ervin’s conduct did not constitute “ineffective assistance of counsel” because the alleged omitted objection would have been meritless and thus did not prejudice Rodriguez’s case.  Accordingly, the Fourth Circuit affirmed the trial court’s denial of Rodriguez’s § 2254 petition.

Factual and Procedural Background

In 2006, a South Carolina trial court convicted Rodriguez on multiple counts of drug trafficking and sentenced him to 45 years’ imprisonment.  He had accepted a plea agreement on the first day of trial that recommended a 20-year sentence, but the plea agreement had been rejected by the trial judge without explanation the very same day.

In 2010, Rodriguez filed a motion for post-conviction relief (the “PCR Motion”), alleging that the rejection of the plea agreement constituted a violation of his federal due process rights and that Ervin provided ineffective assistance of counsel by failing to object to the rejection and thus preserve the issue for appeal.  The state court denied the PCR Motion, holding that Rodriguez failed to show that (1) Ervin should have objected to the plea deal, and (2) Ervin’s failure to object prejudiced Ervin’s case.  The Supreme Court of South Carolina affirmed.

Rodriguez then filed this § 2554 petition in the United States District Court for the District of South Carolina.  The district court denied the petition, and Rodriguez appealed.

Issues on Appeal and Standard of Review

In deciding whether Rodriguez’s § 2254 petition should have been granted, the Fourth Circuit first identified a de novo standard of review for § 2554 issues.  But it then noted that § 2254(d) only permits a federal court to grant a § 2254 petition previously adjudicated by a state court on the merits when the state court adjudication:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

The court then reasoned that because the trial court addressed whether Ervin’s conduct constituted “ineffective assistance of counsel” to deny Rodriguez’s PCR Motion, the § 2254 petition could only be granted if the Fourth Circuit determined that the state court unreasonably applied the “ineffective assistance of counsel” standard.  The Fourth Circuit identified the correct standard as a two-pronged test articulated in Strickland v. Washington, which enables a party to prevail on an ineffective assistance of counsel claim if he or she demonstrates that (1) “counsel’s performance was deficient” and (2) “the deficient performance prejudiced the defense.”  Accordingly, the single issue on this appeal was whether any reasonable argument could be made that Ervin satisfied the Strickland test.

Failure to Meet Strickland’s Prejudice Prong

To address this issue, the Fourth Circuit first noted that pursuant to Harrington v. Richter, review of the Strickland test is highly deferential to the state court, and “doubly” deferential when applied in conjunction with § 2554.  The court then looked at the prejudice prong of the Strickland test, reasoning that it did not need to first address the issue of a deficiency because it would be so easy to dispose of the ineffectiveness claim on prejudice grounds.  It articulated that to demonstrate prejudice, a petitioner “must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”  The court further defined a reasonable probability as “a probability sufficient to undermine confidence in the outcome,” and noted that, pursuant to Lockhart v. Fretwell, a petitioner will not show prejudice if the “omitted objection” is “wholly meritless under current governing law.”

In applying these rules to the facts of Rodriguez, the court concluded that the Ervin’s “omitted objection” to the rejection of the plea agreement was “wholly meritless.”  To come to this conclusion, it noted that in Missouri v. Frye, Santobello v. New York, and Lafler v. Cooper the Supreme Court clearly articulated that there is no federal due process right that a plea agreement be accepted by a judge.  Thus, the Fourth Circuit determined that any objection made by Ervin asserting that the plea agreement’s rejection violated Rodriguez’s federal due process rights would have been entirely without merit.  Accordingly, Rodriguez was not prejudiced by Ervin’s failure to make a meritless claim, and Ervin’s omission did not amount to an “ineffective assistance of counsel” justifying relief under § 2254.

Conclusion

Because Ervin’s omitted objection was wholly meritless, the Fourth Circuit determined that it was reasonable for the district court to conclude that Rodriguez did not demonstrate the requisite prejudice for an ineffective assistance of counsel claim.  Accordingly, the Fourth Circuit affirmed the district court’s judgment, holding that the district court did not err when it denied Rodriguez’s request for relief under 28 U.S.C. §2254.

By Ali Fenno

On March 13, 2017, the Fourth Circuit issued a published opinion in the criminal case of United States v. Lara.  In Lara, the Fourth Circuit addressed whether the district court violated the psychotherapist-patient privilege and the Fifth Amendment privilege against self-incrimination when, during a sentencing hearing, it considered statements the defendant, Juan Lara (“Lara”), made while participating in a compulsory Sex Offender Treatment Program (“Treatment Program”) that had been a condition to his probation. After examining the knowing and voluntary nature of Lara’s consent to his probation terms and the voluntary nature of the statements Lara made during the Treatment Program, the Fourth Circuit concluded that the district court did not err in considering the self-incriminating statements.

Factual and Procedural Background

In February 2008, Lara was convicted for the aggravated sexual battery of a mentally incapacitated victim under Virginia Code Section 18.2-67.3(A)(2) and sentenced to 20 years’ imprisonment with 17 years suspended. In addition, upon his release from confinement, Lara was to serve 20 years’ supervised probation and was required to complete a Treatment Program, allow the Treatment Program provider to have “unrestricted communication with the probation and parole department,” and “submit to any polygraph . . . deemed appropriate by [his] supervising officer.” Lara acknowledged and consented to these conditions before his release by signing a form that listed the conditions.

Lara’s probationary period started immediately upon his release in December 2009. He was referred to a Treatment Program, Flora Counseling Services Corporation (“Flora), and met with one of Flora’s licensed clinical social workers for an interview in April 2010. During the interview, Lara detailed his past sexual conduct with minors, commission of forcible sexual assaults, and involvement in two murders. He later confirmed these incidents in a polygraph examination and signed a written statement describing the incidents. Then, in July 2010, he signed a document entitled “Sex Offender Program Acknowledgment of Confidentiality Waiver” to acknowledge that all information he relayed to Flora’s therapists and group leaders “is not privileged or private” and that Lara “waive[d] any and all such rights of confidentiality which may exist by statute or rule of law.”

Lara successfully completed Flora’s Treatment Program, but in March 2014, in violation of his conditions of probation, he moved from Virginia to Texas without notifying his probation officer or updating his registration with the Virginia State Police’s Sex Offender and Crimes Against Minors Registry. Several months later, he was arrested and indicted by a federal grand jury for violating the Sex Offender Registration and Notification Act (SORNA).

Lara pleaded guilty to the SORNA violation and filed a motion to exclude from consideration at sentencing the statements he made during Flora’s Treatment Program interview that detailed his past criminal incidents. The district court denied his motion, holding that he had voluntarily waived any psychotherapist-patient privilege and that the Fifth Amendment did not protect him from the government’s use of voluntary disclosures of incriminating information. The court then concluded that Lara more likely than not committed the crimes he admitted to during Flora’s Treatment Program interview, and sentenced him to 120 months’ imprisonment.

Issues on Appeal and Standard of Review

The first issue on appeal was whether Lara knowingly and voluntarily waived the psychotherapist-patient privilege. The second issue was whether the incriminating statements Lara made during his intake interview invoked his Fifth Amendment privilege against self-incrimination.  A district court’s determination of whether a privilege should be recognized is a mixed question of law and fact. Accordingly, the Fourth Circuit reviewed both issues de novo.

Waiver of the Psychotherapist-Patient Privilege

Lara first argued that he did not waive the psychotherapist-patient privilege because he was “compelled to participate” in Flora’s Treatment Program. In rejecting this argument, the Fourth Circuit first noted that the psychotherapist-patient privilege is strictly construed, and a defendant has the burden of showing that he did not waive the privilege by knowingly and voluntarily relinquishing it. The court then recognized that, especially when the probationary period is used as an alternative to incarceration, courts administering probation as a punishment may deprive a criminal offender of certain freedoms. The Fourth Circuit further identified multiple courts that had found a criminal defendant’s consent to court-imposed conditions of release to be voluntary despite the alternative of incarceration.

Here, Lara chose to agree to the terms of his supervised probation as an alternative to incarceration. Those terms explicitly authorized Treatment Program providers to have “unrestricted communication” with the state probation and parole department as an alternative to incarceration. Accordingly, the Fourth Circuit concluded that the alternative of incarceration did not eradicate the voluntary nature of Lara’s consent to the terms of his probation, and held that Lara waived any psychotherapist-patient privileges that may have applied to the incriminating statements he made while participating in Flora’s Treatment Program.

Failure to Invoke Fifth Amendment Privilege

Next, Lara argued that his Fifth Amendment privilege against self-incrimination was violated because the probation conditions required him to disclose incriminating information. The Fourth Circuit rejected this argument as well. It first noted that the Fifth Amendment privilege “generally is not self-executing” and that a defendant “ordinarily must assert the privilege rather than answer if he desires not to incriminate himself.” But it then looked to Minnesota v. Murphy, where the United States Supreme Court recognized that the threat of revocation of probation could “trigger self-executing Fifth Amendment protections.” However, this could only occur when direct evidence indicated that the defendant only confessed because it was nearly certain that his silence would cause probation to be revoked.

The Fourth Circuit then examined the factual record and could not find any direct evidence that Lara made the incriminating statements during Flora’s Treatment Program interview under the threat of revocation of his probation. Indeed, the state court could not have revoked his probation if he had asserted his Fifth Amendment privilege during the interview. Thus, the Fourth Circuit held that the statements were voluntarily made and did not invoke Lara’s Fifth Amendment privilege against self-incrimination.

Conclusion

Because Lara’s incriminating statements were knowingly and voluntarily made, the Fourth Circuit concluded that he waived the psychotherapist-patient privilege and did not invoke the Fifth Amendment privilege against self-incrimination.  Accordingly, the Fourth Circuit affirmed the district court’s judgment, holding that the district court did not err when it considered at the sentencing hearing the incriminating statements Lara made during Flora’s Treatment Program.

 

By M. Allie Clayton

Today, in the criminal case of United States v. Powell, a published opinion, the Fourth Circuit affirmed the District Court in holding that a juror’s statement of “everything would be alright” and that the father needed to give his son “a good kick in the butt” was too ambiguous to establish actual juror bias.  Because the statement was ambiguous, Powell’s counsel’s response was within the range of competent representation, and thus not a violation of Powell’s Sixth Amendment right.

Facts and Procedural History

In June 2005, Powell was convicted by a jury of numerous drug and firearms charges. The district court sentence of 300 months’ imprisonment was affirmed by the Fourth Circuit on direct appeal. The Supreme Court vacated the judgment and remanded for resentencing due to Kimbrough v. United States. On remand, the District Court resentenced Powell to the same term.  Powell again appealed the judgment, which was affirmed by the Fourth Circuit, and the Supreme Court denied certiorari.

In this case, Powell has filed a 28 U.S.C. § 2255 with 16 different challenges to his conviction and sentence, most of which allege ineffective assistance of counsel. The specific claim as to ineffective assistance of counsel in this case is that his trial counsel’s performance was deficient because she did not bring to the attention of the trial court the fact that a juror approached Powell’s father and told him “everything would be alright” and that “he needed to give his son ‘a good kick in the butt.’” Powell alleged that the statement by the juror demonstrated that the juror was biased against him and if his counsel had brought this to the attention of the court, the court would have inquired about the juror’s prejudgment, and possibly removed the juror and replaced her with an alternate.

The Issue

Is the juror’s statement of “everything would be alright” and that “[Powell’s father] needed to give his son ‘a good kick in the butt’” sufficient to demonstrate a juror’s actual bias—thus requiring Powell’s counsel to bring that to the court’s attention?

Sixth Amendment Right to Effective Assistance of Counsel

Under Strickland v. Washington, there are two requirements for a defendant to prove a violation of the Sixth Amendment right to effective assistance of counsel: (1) the counsel’s performance was deficient and (2) the deficient performance prejudiced the defense.

Under the first prong, the defendant must meet a high bar. The defendant must prove that his counsel’s representation fell below an objective standard of reasonableness, and that counsel’s errors were “so serious that counsel was not functioning as ‘counsel.’” The court is required to give a great amount of deference to the counsel’s decision-making and must be careful to eliminate any hindsight distortion and evaluate the decision from the counsel’s perspective at a time.

Sixth Amendment Right to an Impartial Jury

There is a presumption that jurors are impartial, unless there are indications to the contrary.  To be impartial, under the Sixth Amendment, the jury must be able to decide the case based on the evidence before it.  The question regarding juror impartiality is whether a juror can lay aside her opinion and render a verdict based on the evidence presented in court.

Reasoning

As it relates to this specific case, the “question is whether the juror’s statement to Powell’s father indicated that the juror was biased and unable to decide the case solely on the evidence.” The next question is “whether counsel’s failure to bring the statement to the attention of the court amounted to constitutionally deficient representation.”

In this case, the statement’s meaning is not clear. A reasonable lawyer who was told of the statement could conclude that the juror’s statement was “so ambiguous that it could not be taken as indicating that the jury was actually incapable or unwilling to base a verdict solely on the evidence presented at trial.”  The actions of the lawyer in not bringing the matter up were reasonable not only due to the ambiguous content of the statement, but also the risk of alienating the juror based on the mere act of inquiring about the juror’s bias. A reasonable lawyer could have concluded that the client’s interests were best served by not bringing the statement to the attention of the court.

The record further established that the lawyer was reasonable in not bringing the matter up because of how unsure she was as to the significance, if any, of the statement.  Even Powell and his father only described the statement as “troubling” or “strange.”  Powell and his father never stated that they felt panicked when they realized the person who made the statement was a juror in Powell’s trial. Those facts alone indicate that even Powell and his father did not take the juror’s statement as demonstrating a “clear and unmistakable bias against Powell.”

Disposition

While it might have been more prudential to bring the matter to the attention to the court, the failure to pursue the issue with the court was not so problematic as to make defendant’s counsel’s performance constitutionally deficient.  Therefore, the district court’s order denying Powell’s § 2255 motion is affirmed.

By Kelsey Hyde

Today, the Fourth Circuit issued a published opinion, In re William Robert Gray, Jr., deciding on a motion for authorization to file a second or successive application for a writ of habeas corpus. The movant (“Gray”) had sought the Court’s approval to file a second petition under 28 U.S.C. § 2254, as would be necessary under 28 U.S.C. §2244(b), but the Fourth Circuit held this action was unnecessary based on finding that Gray’s petition was in fact a “first challenge” to a new or intervening judgment. By way of this ruling, the Fourth Circuit joined the Third, Sixth, Ninth, and Eleventh Circuit Courts in their treatment of habeas petitions filed after a new, intervening judgment as not second or successive within the meaning of §2244(b).

Factual Background & Procedural History of Gray’s Claims

            In 1993, Gray was convicted in North Carolina of first-degree murder and sentenced to death. Gray then filed a 28 U.S.C. §2254 petition—an application for a writ of habeas corpus for a person in custody based on the judgement of a State court—in federal district court, which was dismissed. However, the Fourth Circuit reversed in part, finding that Gray’s counsel had been ineffective at his sentencing and ordering the district court to grant the writ of habeas corpus, unless the State were to afford Gary a new sentencing hearing within a reasonable period of time. When resentencing still had not occurred after five years, Gray filed his own pro se motions challenging both this delay and his underlying conviction, which were all denied by the district court and affirmed by the Fourth Circuit. Then, the State decided it would not seek the death penalty and finally resentenced Gray to life in prison. Gray then filed this motion under 28 U.S.C. § 2244(b) for approval to file a second or successive § 2254 petition regarding his underlying criminal conviction.

Gray’s Contentions & Issue Presented to the Fourth Circuit

            Ultimately, Gray contended that the Fourth Circuit’s approval under § 2244(b) was not necessary because his resentencing acted as a new, intervening judgment, and therefore his petition was not “second or successive.” The issue for the Court’s consideration was whether, following a successful habeas petition regarding sentencing, Gray could then challenge his underlying conviction without triggering the “second or successive” requirements, and therefore not requiring court of appeals approval.

“Second and Successive Petitions” for Habeas Relief

            Per 28 U.S.C. §2244 and the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”), a petitioner incarcerated based on a State judgment cannot bring “second or successive” motions for habeas relief, and such claims shall be dismissed unless authorized by the appropriate court of appeals. §2244(b)(1), (3). However, authorization to file may be found unnecessary if the court of appeals determines that the petition in question is not in fact second or successive. Thus, a court must first determine whether a petition is second or successive, and only then if it is found to be second or successive should the court review the claim for satisfaction of the §2244(b) requirements. Magwood v. Patterson, 561 U.S. 320, 334-35 (2010). The Supreme Court in Magwood also emphasized that this second or successive distinction must be made with respect to the particular judgment being challenged, and resentencing a defendant is an “intervening judgment” such that a subsequent petition regarding this new sentencing would not be second or successive. Id. at 339, 342. However, the Court in Magwood only decided the issue in regards to another petition following a new sentencing judgment, and did not have occasion to determine whether this result also applied when the subsequent petition went to the defendant’s underlying conviction and adjudication of guilt, rather than sentencing. Id. at 342. The Third, Sixth, Seventh, Ninth, and Eleventh Circuits all had occasion to decide this precise issue, and all but one (the Seventh Circuit) determined that where a defendant received a new judgment as a result of a habeas petition relating to resentencing, a subsequent petition relating to their underlying conviction would not be considered “second-in-time” such that §2244(b) applied and required authorization. The issue presented in Gray’s claim had yet to be addressed by the Fourth Circuit.

Petition Not Considered “Second or Successive” Where Defendant Received Intervening Judgment on Sentencing But Now Seeks to Challenge Conviction

            The Fourth Circuit sided with the majority of the other circuits mentioned, and found that a movant in Gray’s situation—filing a habeas petition relating to underlying conviction after a successful habeas petition relating to sentencing—would not be submitting a second-in-time petition such that § 2244(b) would apply. The Court believed that, in the Magwood ruling, the Supreme Court made clear that an intervening judgment wholly resets the “habeas counter” at zero. Additionally, the Court also found this conclusion fitting in light of other Fourth Circuit precedent. See In re Wright, 826 F.3d 774 (4th Cir. 2016) (finding §2244(b)’s “second and successive” requirements did apply where prisoner’s first §2254 petition was dismissed, there was no intervening judgment, and the subsequent petition was challenging the same judgment yet merely setting forth an argument that had not been included in his original.) Moreover, the Court found this interpretation of Magwood to be consistent with the AEDPA’s goal of limiting the ability to make these successive petitions to these narrowly-defined circumstances, and further emphasized that this ruling in no way inhibits the other procedural safeguards that effectively bar excessive and redundant claims.

Fourth Circuit Orders District Court to Hear Petition as First Challenge, Not Second-in-Time

Because Gray’s §2254 petition was not second or successive, the Fourth Circuit found that review under §2244(b) was unnecessary, and thus directed the district court to hear the petition as a first challenge to this new judgment.