Thursday, July 28, 2016

Rosenbaum/Jill Pryor: we're trying to be nice here but our colleagues are really really wrong

That's the message in this -- yet another Johnson -- concurrence (which Jordan did not join).  From the intro and then the conclusion:
To err is human; to forgive, divine; but to correct? Well ... after In re
, No. 16-13959, _ F.3d _, 2016 WL 3752118 (I Ith Cir. July 13, 2016),
that's not something we do in this Circuit, when it comes to wrongly denied
inmates' requests for authorization to file a second or successive habeas petition.
So some inmates with sentences unconstitutionally enhanced under the Armed
Career Criminal Act may sit in prison for years beyond their constitutionally
authorized sentences. Though we deeply respect our colleagues, we think this is
just wrong.

Arnold Bennett said that "[a]ll wrong doing is done in the sincere belief that
it is the best thing to do." We do not doubt our colleagues' intentions in issuing
Baptiste. But their good intentions do not make their conclusions in that case, in
our view, any less wrong.

Wednesday, July 27, 2016

News & Notes

1.  FNU is not the same as FIU.  That was easy.  But it took the 11th Circuit 50 pages.  KMW affirmed.

2.  Bar complaints were filed in the Miccosukee case against Bernardo Roman and Jose "Pepe" Herrera. From the DBR:
The Florida Bar filed formal complaints against two Miami lawyers who represented the Miccosukee tribe, alleging they knowingly made false and frivolous claims against former counsel for the tribe.
The complaints against Bernardo Roman III ( read the Roman complaint here) and Jose "Pepe" Herrera ( read the Herrera complaint here) ask the Florida Supreme Court to consider disciplining the attorneys for pursuing meritless claims, withholding evidence and even making a false 911 call during litigation against Miami lawyers Guy Lewis and Michael Tein and their firm, Lewis Tein.
The Thursday filings are the latest development in a nasty saga that led to the tribe agreeing in May to pay $4 million to cover Lewis and Tein's attorney fees in three racketeering and malpractice lawsuits Roman pursued. The tribe cut ties with Roman last year.
"Each court that has examined this issue has determined that Roman's actions resulted from the bad blood, or personal animosity, held by Roman and the new tribal leadership against the former tribal administration and its associates, including Lewis and Tein," states one of the complaints filed by Florida Bar lawyer Jennifer Falcone in Miami.

3.  Bitcoin is not money.  From the MH:
But Miami-Dade Circuit Judge Teresa Mary Pooler ruled that Bitcoin was not backed by any government or bank, and was not “tangible wealth” and “cannot be hidden under a mattress like cash and gold bars.”
“The court is not an expert in economics; however, it is very clear, even to someone with limited knowledge in the area, the Bitcoin has a long way to go before it the equivalent of money,” Pooler wrote in an eight-page order.
The judge also wrote that Florida law — which says someone can be charged with money laundering if they engage in a financial transaction that will “promote” illegal activity — is way too vague to apply to Bitcoin.
“This court is unwilling to punish a man for selling his property to another, when his actions fall under a statute that is so vaguely written that even legal professionals have difficulty finding a singular meaning,” she wrote.

Read more here:

Tuesday, July 26, 2016

HRC's VP nominee Tim Kaine clerked on the 11th Circuit

Back in 1983-84, Tim Kaine clerked for Judge Lanier Anderson.  Here's a portion of the wiki entry for now Senior Judge Anderson, who assuredly had an impact on Kaine:
On April 18, 1979, President Jimmy Carter nominated Anderson to a newly created seat on the United States Court of Appeals for the Fifth Circuit. The United States Senate confirmed Anderson on July 12, 1979, and he received his commission on July 13, 1979.[1]
On October 1, 1981, the federal government created the United States Court of Appeals for the Eleventh Circuit, and Anderson was one of a group of judges reassigned to the new circuit.
In 1986, Anderson became the subject of an impeachment drive after a three-judge panel on which he sat ordered retrials for several convicted murderers because, they ruled, pretrial publicity had unfairly tainted their trials.[4]
In 1999, Anderson penned a noted ruling in favor of the estate of Martin Luther King, Jr. in a copyright fight with CBS over King's famous "I Have a Dream" speech.[4]
Anderson became a chief judge of the Eleventh Circuit on May 17, 1999, serving in that capacity until May 31, 2002.[5][6]
In July 2008, Anderson told President George W. Bush of his intention to take senior status effective January 31, 2009. However, word did not become public of his decision until November 2008.[4] Anderson told a local newspaper that he still planned to work "almost full-time" but that he hoped to take more vacation time—probably four to six weeks a year—to visit grandchildren in New York and Connecticut. And while Anderson could have taken senior status in November 2001, he chose not to do so, he told the paper, because "I was having so much fun, I didn't want to."[4]
In 2008, Anderson described himself as a judicial "moderate," and added that he "would like to be thought of as a judge who had no particular agenda and who took each case on the facts and applied the law that the Supreme Court laid down," regardless of his own personal view on it. "And I think that’s what I attempt to do, and I think every judge on our court does."

Monday, July 25, 2016

11th Circuit now being ridiculed for its Johnson jurisprudence (UPDATED)

Noah Feldman has this essay in Bloomberg about the Johnson mess in the 11th Circuit, and it's not a pretty picture.  The conclusion, in support of Judge Martin and her frequent dissents on the Johnson orders:
Yet no other court of appeals appears to be engaging in this kind of case-by-case analysis. They’ve been approving the requests automatically and allowing a federal district court to sort out the details.
Judge Beverly Martin of the Eleventh Circuit issued an unusual and stirring opinion this week declaring that the process in her court wasn’t working.
Martin asserted that among the thousands of applications and hundreds of denials, her court has been making mistakes -- mistakes that, by their legal nature, can't be appealed. “A court of appeals is simply not equipped to construct a new basis for a prisoner’s old sentence in this way,” she wrote.
To make matters worse, the Eleventh Circuit gives itself 30 days to rule on each request. The presentence report can be inadequate or misleading, and there are no attorneys involved to explain what it means. And most prior convictions are under state law, which varies from place to place and have technical details that are hard for the court to determine without a lawyer’s help.
What's more, the Eleventh Circuit had rejected petitions for reconsideration before the Supreme Court said its Johnson ruling applied retroactively.
The upshot is that something very like a travesty of justice is happening in the Eleventh Circuit. And as you know if you’re still reading this, the issue is sufficiently technical that it’s hard to draw attention to the problem.
But real people are spending potentially many extra years in prison on the basis of an unconstitutional law. That’s wrong. In the spirit of Justice Scalia, the Eleventh Circuit should change course and start allowing district courts to review post-Johnson ACCA petitions the way the other circuits do.

UPDATED -- You can get some pretty interesting stuff just about every day from the slew of Johnson orders coming out.  Here's Judge Ed Carnes' concluding paragraph from a concurrence today in In Re Emilio Gomez:
And, as the order states, “[s]hould an appeal be filed from the district court’s
determination, ‘nothing in this order shall bind the merits panel in the appeal.’”
Maj. Opn. at 8. Nothing.

Friday, July 22, 2016

Ferguson building being evacuated (updated)

Not sure what's going on over there other than a fire alarm went off and everyone is milling around outside. Will update if any further information becomes available.

Update (2pm) -- Apparently the King building has been evacuated as well.

Update 2 (2:40pm) -- back to business. The buildings have been reopened. The Atkins building was never evacuated.