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. 

Former Miami AUSA and Bachelorette contestant still making news

This time Mike Garofola makes news for dating habits in NYC.  From the New York Post:
Ever since Michael Garofola, 36, moved to New York in October, his calendar has been packed with different women penciled in for dinner or drinks.
As a former “Bachelorette” contestant, Garofola knows he has no problem scoring with women — he goes on up to five first dates a week, which he says usually include a drink or two and nothing beyond a goodnight smooch on the cheek. But in the past two months, he’s been feeling spent by the mating game.
“In New York, everyone has this feeling that they have limitless options,” the Gramercy-based lawyer tells The Post. “We have this mentality of, ‘Why should I settle for Susan, who’s beautiful and smart, when I could turn the corner and meet Jessica, who’s just as smart and beautiful?’”
Garofola meets most of the women he dates on Tinder, Bumble and the League. But while he claims he only swipes right on less than 10 percent of profiles, his good looks still net him more than 100 matches a week — and it’s tiring trying to keep up.
“It can be mentally and physically exhausting, and I start to question the time and money I’ve spent,” he says.

Thursday, July 21, 2016

Michelle Obama wins the Republican Convention

First, she gave the best speech of the convention.

But then this.  She is the coolest First Lady ever:

Meantime, Cruz is already running for 2020.  Woweee:

Can't we all just hug it out?

Tuesday, July 19, 2016

Johnson showing huge divides in the 11th Circuit*475/012709+William+Shatner.jpgJust today, there were a bunch of orders with very different results and very passionate concurrences/opinions. Without getting into the weeds of the holdings, this post will point out some of the really powerful writing that's going on in the 11th Circuit. For example, here's Judge Rosenbaum citing one of the great all-time TV shows in In Re: Charles Clayton:

Imagine a sentencing guideline that read, “A defendant is a career offender if ‘[p]uddles do not ask for why not? It is cheese! Breath and wind. It is cheese.’” Boston Legal, “Word Salad Days” (2006), /quotes (last visited Apr. 28, 2016). Now imagine that based on the Guidelines range that that indecipherable language required, a district court sentenced a defendant to twice as much time as it otherwise would have. How could the sentencing court know that the guideline applied? How could the reviewing court know that the correct Guidelines calculation included an enhancement under that guideline? Surely doubling a defendant’s sentence based on nonsense would violate due process. But in United States v. Matchett, 802 F.3d 1185 (11th Cir. 2015), we allowed defendants to continue to be sentenced to much more severe sentences than they would otherwise receive, based on the residual clause of the career-offender guideline, a guideline that the Supreme Court has found hardly more scrutable than the hypothetical one above.
No doubt criminal defendants do not have a due-process right to a sentence within a particular Sentencing Guidelines range. But Congress can, and essentially has, required courts to begin the sentencing process by correctly calculating the Guidelines range. The question here is whether, when the Supreme Court strikes language from a statute because it is unconstitutionally vague language and that same language also appears in a guideline, we are constitutionally able to continue to apply that language in the sentencing process that Congress has mandated. The answer, unlike the challenged part of the career-offender guideline, is clear: we are not.
I concur in all but Section I.A of Judge Martin’s well-reasoned concurrence. I agree that the Supreme Court’s decision in Johnson v. United States, 576 U.S. __, 135 S. Ct. 2551 (2015), holding the Armed Career Criminal Act’s (“ACCA”) residual clause unconstitutionally vague renders the exact same language in the Sentencing Guidelines unconstitutional as well.
Denny Crane!

And here's Judge Martin, who has been at the front of criticizing the 11th Circuit for its post-Johnson rulings:
The Matchett panel gave no heed to these admonitions against “arbitrary enforcement.” Zero. Instead, the panel addressed only Johnson’s “notice” rationale, without ever mentioning the Court’s concern about “arbitrary enforcement by judges.” This matters because we have been instructed that the “arbitrary enforcement” concern is “the more important aspect of vagueness doctrine.” Kolendar v. Lawson, 461 U.S. 352, 358, 103 S. Ct. 1855, 1858 (1983). Perhaps reflecting this lesson, every time Johnson told us why the residual clause is not lawful, it underscored the problem that the vague language of the clause led different judges to give similarly situated defendants widely varying sentences. But again, the panel made no effort to address this concern about arbitrariness, which the Supreme Court told us is “the more important aspect of vagueness doctrine.”
On the topic of this court’s singular approach, I add one more observation. Last month the Supreme Court granted certiorari in the case of a Texas prisoner named Duane Buck. See Buck v. Stephens, No. 15-8049, __ S. Ct. __, 2016 WL 531661 (U.S. June 6, 2016). The Court took the case even though the lower court ruled that Mr. Buck’s appeal was so meritless that he couldn’t even file it. Mr. Buck’s petition for certiorari asked: “did the United States Court of Appeals for the Fifth Circuit impose an improper and unduly burdensome Certificate of Appealability (COA) standard?” Our treatment of applications for successive § 2255 motions may be even more troubling than the issue raised in Buck. Unlike for the denial of a COA, AEDPA provides that “denial of an authorization . . . to file a second or successive application shall not be appealable and shall not be the subject of a petition for rehearing or for a writ of certiorari.” 28 U.S.C. § 2244(b)(3)(E). This means no motion for reconsideration, no motion for en banc review, no appeal, and no petition for certiorari. The decisions we make in these cases are therefore, as a practical matter, not reviewable.
A month after AEDPA became law, the Supreme Court held that these “new restrictions on successive petitions . . . do not amount to a ‘suspension’ of the writ.” Felker v. Turpin, 518 U.S. 651, 664, 116 S. Ct. 2333, 2340 (1996). Three Justices filed a concurrence warning that “the question whether the statute exceeded Congress’s Exceptions Clause power” might need to be revisited “if the courts of appeals adopted divergent interpretations of the gatekeeper standard.” Id. at 667, 116 S. Ct. at 2342 (Souter, J., concurring). I hope someone better equipped than me will take this opportunity to look at whether the divergent views taken by this court require reexamination of this question asked by these Justices so soon after AEDPA was enacted. Twenty years later, I worry that our court’s harsh view of our § 2244(b) gatekeeping role brings us perilously close to a suspension of the writ.
 In another order, In Re William Hunt, we see some more concurrences with all three judges (Wilson, Rosenbaum, and Jill Pryor).  I like the concurrence by Judge Jill Pryor (joined by the other two judges), which ends this way:
When it comes to Matchett, we soon may be told we are wrong again. On the
last day of this year’s term, the Supreme Court accepted certiorari in Beckles v.
United States, No. 15-8544, 2016 WL 1029080 (U.S. June 27, 2016). Beckles is yet
another Johnson case that originated in this Circuit. This time, the petitioner was
sentenced as a career offender under the advisory guidelines rather than under the
ACCA. So the Supreme Court, in deciding Beckles, will decide the very issue that
Matchett concerns.
If we simply asked whether, on our existing precedent, the applicant has made
a prima facie showing that his sentence was based on crimes that met the definition
of “violent felony” before Johnson but no longer do, we undoubtedly would be
granting authorization to file second or successive § 2255 motions in more cases.
At least then these many individuals who may be serving unconstitutional sentences
would have a shot at meaningful review, first in the district court and then in this
Court on appeal (and maybe even ultimately in the Supreme Court).
I recognize that the number of requests for authorization we have received in
the wake of Johnson has been extremely taxing on our Court. We have been
inundated with thousands of filings in addition to our regular court work. And I
understand that published orders from this Court that categorically foreclose relief to
whole groups of individuals, like Matchett and Griffin, may lessen that burden on
district courts, too. But such prudential concerns are not reasons to refuse to
remedy constitutional violations. As judges we are not sworn to shield district
courts; rather, we are sworn to uphold the Constitution and vindicate the individual
rights that the Constitution protects.
If the Supreme Court decides in Beckles that the residual clause in the career
offender guideline is void for vagueness, there may be new hope for the scores of
inmates who have tried to obtain relief since Johnson, only to be turned away by this
Court based upon Matchett. I hope next time around we will avoid the mistakes I
have identified. And I hope that, rather than being behind the march of justice, we,
as our nation’s designated guardians, will be at the front.
Most of the criticism from these judges, I believe, is directed at Judge Hull, who continues to issue orders, like this one, denying successive petitions. 

The greatest form of flattery?

Lawyers are used to it...  but this is incredible:

The discarded logo was a sight to see. And now this. Fun times.

Monday, July 18, 2016

At least he got an hour for lunch.

Even though this order is a few months old, it is making the rounds right now... H/t @bradheath from USA Today for posting it on Twitter.  According to Heath, this juror was late for jury duty, which resulted in this order:

Thursday, July 14, 2016

That was fast: Kosher meals case decided two days after argument.

Judge Pryor, writing for a unanimous 11th Circuit after oral argument earlier in the week, upheld Judge Seitz' order granting summary judgment to the United States, requiring Florida to make kosher meals available to Jewish inmates.  The writing was on the wall after the OA.  From the intro:
 This appeal requires us to decide whether the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc et seq., prevents the Secretary of the Florida Department of Corrections from denying kosher meals to inmates whose sincere religious beliefs require them to keep kosher. After the United States sued the Secretary to compel the Department to provide kosher meals, but before the entry of an injunction, the Secretary voluntarily created a religious diet program. Even so, the Secretary continues to insist that the Department need not provide kosher meals because denying them is the least restrictive means of furthering a compelling governmental interest in containing costs. But the Secretary’s argument lacks any support in the record. We affirm the summary judgment for the United States and the permanent injunction requiring the Secretary to provide kosher meals to the inmates.

Judge Federico Moreno named to Executive Committee

What a big (and well-deserved) honor.  Chief Justice John Roberts has formed the executive committee of the Judicial Conference to include:

Judge Paul J. Barbadoro, Chair   District of New Hampshire
Judge Robert James Conrad Western District of North Carolina 
Chief Judge Merrick B. Garland DC Circuit
Federico A. Moreno Southern District of Florida
Chief Judge William Jay Riley Eighth Circuit
Chief Judge Sidney R. Thomas Ninth Circuit
Martha Vazquez District of New Mexico
James C. Duff AO Director

Wednesday, July 13, 2016


That was Judge Rosenbaum in this concurrence yesterday.  Here's the whole intro:
Johnny Marshall has already spent seventeen years in jail for a $261 robbery that he very well may not have committed. And after our decision today, he may spend the rest of his life there. But Marshall’s attorney almost certainly could have prevented Marshall’s conviction, had he done what any other competent attorney would have on this record: pursued a motion to suppress the illegally obtained sole eye-witness’s identification of Marshall, an identification that the same witness’s earlier description of Marshall squarely contradicted.
I write separately because I believe that Marshall was denied effective assistance of counsel, in violation of the Sixth Amendment. Nevertheless, despite the weak evidence underlying Marshall’s conviction and the substantial error his trial counsel made, I agree with the Majority’s ultimate conclusion that 28 U.S.C. § 2254 offers Marshall no relief. Whether because of § 2254’s strict statutory exhaustion requirements or its highly deferential standard of review of state-court decisions, we have no choice but to deny Marshall’s claim. At this point, any potential relief Marshall might obtain must come from the state, such as an act of clemency by the state’s executive branch.
Thin. That’s a generous way to describe the evidence against Marshall. The only evidence tying Marshall to the robbery consists of Geraldine Jenkins’s identification of him. But Jenkins—the Pizza Hut employee who was present during the robbery—identified Marshall within about an hour of providing a description of the robber that bore about as much resemblance to Marshall’s actual appearance as broccoli does to carrots. Both are in the same general category—men and vegetables, respectively—but that’s where the similarities end.

Tuesday, July 12, 2016

"You haven't litigated much against the State of Florida then."

 That was Judge William Pryor this morning in the argument regarding kosher meals in the prison system.  A tipster told me the exchange went something like this:
Pryor: [to lawyer arguing for the prisoners]  You should quit while you are ahead [and sit down with 5 minutes left during your argument].

Lawyer: I've never been in this position before.

Pryor:  You haven't litigated much against the State of Florida then.

OUCH!  Maybe that will change now that Florida has a new SG.

Monday, July 11, 2016

B-Girls convictions reversed with citations to the Bible, Vulcans and Pappy's Bourbon

Wow, big opinion today by the 11th Circuit, reversing the B-girls convictions.  The blog covered (and frequently criticized) the prosecution and lengthy trial, which involved bar girls getting guys drunk and running up tabs at bars. Welcome to Miami!

The 11th Circuit held that the court should have instructed the jury as follows: that they must acquit if they found that the defendants had tricked the victims into entering a transaction but nevertheless gave the victims exactly what they asked for and charged them exactly what they agreed to pay.

The panel was Ed Carnes, Martin and visiting district judge Amul Thapar (EDKY).

The appellate defense team included Howard Srebnick, Richard Klugh, Marcia Silvers, and John Bergendahl.

The opinion, written by Judge Thapar, is awesome and includes all sorts of fun references (to the Bible, Star Trek, Whiskey, Holmes and more).  Here's the intro:
The wire-fraud statute, 18 U.S.C. § 1343 does not enact as federal law the Ninth Commandment given to Moses on Sinai.* For § 1343 forbids only schemes to defraud, not schemes to do other wicked things, e.g., schemes to lie, trick, or otherwise deceive. The difference, of course, is that deceiving does not always involve harming another person; defrauding does. That a defendant merely “induce[d] [the victim] to enter into [a] transaction” that he otherwise would have avoided is therefore “insufficient” to show wire fraud. See United States v. Starr, 816 F.2d 94, 98 (2d Cir. 1987).
Here, the defendants feared that the jury might convict them of wire fraud based on “fraudulent inducements” alone. Hence they asked the district court to give the jurors the following instruction: that they must acquit if they found that the defendants had tricked the victims into entering a transaction but nevertheless gave the victims exactly what they asked for and charged them exactly what they agreed to pay. The district court refused to give that instruction, and the jury ultimately convicted the defendants of wire fraud and other crimes, most of which were predicated on the wire-fraud convictions. The question presented in this appeal is whether the district court abused its discretion when it refused to give the requested instruction.

*See Exodus 20:16 (“Thou shalt not bear false witness against thy neighbor.”) (KJV).

Some other good stuff:
  • The question before us, however, is not whether the proposed instruction was “logically entailed” by the given instruction, but whether it was “substantially covered”; and those are meaningfully different concepts. After all, the average juror is not Mr. Spock. If he were, then a trial-court judge’s job would be much easier. He could instruct the jury in broad strokes—instructing only as to the bare elements of the crime, perhaps—and be confident that the jury would deduce all of the finer-grained implications that must logically follow. As it stands, however, the vast majority of American juries are composed exclusively of humans. And humans, unlike Vulcans, sometimes need a bit more guidance as to exactly what the court’s instructions logically entail.
  • Now imagine another, more common scenario: a young woman asks a rich businessman to buy her a drink at Bob’s Bar. The businessman buys the drink, and afterwards the young woman decides to leave. Did the man get what he bargained for? Yes. He received his drink, and he had the opportunity to buy a young woman a drink. Does it change things if the woman is Bob’s sister and he paid her to recruit customers? No; regardless of Bob’s relationship with the woman, the businessman got exactly what he bargained for. If, on the other hand, Bob promised to pour the man a glass of Pappy Van Winkle** but gave him a slug of Old Crow*** instead, well, that would be fraud. Why? Because the misrepresentation goes to the value of the bargain.  

    ** “Pappy’s,” as it is often called, is a particularly rare bourbon varietal: nearly impossible to find, and nearly impossible to afford when one finds it.

    ***Although Old Crow has a venerable pedigree—reportedly the go-to drink of Mark Twain, Ulysses S. Grant, Hunter Thompson, and Henry Clay—it is not Kentucky’s most-expensive liquor. Its “deluxe” version, “Old Crow Reserve,” retails for approximately $15 per bottle.

    Thus, a “scheme to defraud,” as that phrase is used in the wire-fraud statute, refers only to those schemes in which a defendant lies about the nature of the bargain itself. That lie can take two primary forms: the defendant might lie about the price (e.g., if he promises that a good costs $10 when it in fact costs $20) or he might lie about the characteristics of the good (e.g., if he promises that a gemstone is a diamond when it is in fact a cubic zirconium). In each case, the defendant has lied about the nature of the bargain and thus in both cases the defendant has committed wire fraud. But if a defendant lies about something else—e.g., if he says that he is the long-lost cousin of a prospective buyer—then he has not lied about the nature of the bargain, has not “schemed to defraud,” and cannot be convicted of wire fraud on the basis of that lie alone.
  • Similarly, in Hill, the court instructed the jury that the defendant was guilty of credit-application fraud only if he made false statements to the bank knowingly and willfully. The defendant asked the court to instruct the jury that he was not guilty if he believed the statements were true. United States v. Hill, 643 F.3d 807, 852–54 (11th Cir. 2011). Thus, to get from the given instruction to the requested one, the jury needed to infer only one thing: that a person cannot lie “knowingly and willfully” if he speaks what is in his view the truth. That inference, too, hardly requires Holmesian feats of deduction.****
  • ****Sherlock or Oliver Wendell: either Holmes will do here.
This is just some of the really fun stuff in the opinion.  Check it out.

“Now it’s time for us to move to New Zealand.”

That was Justice Ginsburg in an interview with the NYT saying what would happen if Trump won:

Unless they have a book to sell, Supreme Court justices rarely give interviews. Even then, they diligently avoid political topics. Justice Ruth Bader Ginsburg takes a different approach.
These days, she is making no secret of what she thinks of a certain presidential candidate.
“I can’t imagine what this place would be — I can’t imagine what the country would be — with Donald Trump as our president,” she said. “For the country, it could be four years. For the court, it could be — I don’t even want to contemplate that.”
It reminded her of something her husband, Martin D. Ginsburg, a prominent tax lawyer who died in 2010, would have said.
“‘Now it’s time for us to move to New Zealand,’” Justice Ginsburg said, smiling ruefully.
Last week, I posted about the 3-judge concurrence in the 11th Circuit.  Professor Bascuas has criticized the practice in the comments:
By definition, there is no such thing as a majority, much less a unanimous, concurrence. That essay is either the rationale for the holding or obiter dicta. Since we can assume that these judges know what a "concurrence" is, the question is, why deliberately mislabel this writing in a way guaranteed to draw maximal attention to it? The sub-text may be an awakening to the fact that the court has fetishized the superfluous and redundantly named "prior precedent" rule to the point where the first opinion on an issue is treated as legislation rather than as a precedent. The reach of a precedent in a common-law system is limited by the case's facts and the judges' analysis, subject to revision under different facts or a more complete analysis. Given that, what need is there for a "rule"? If the first panel is convincing, its opinion controls. Why should an unconvincing opinion control? The first-panel-makes-law rule is harmful to litigants. It encourages judges to overreach the facts and the law so as to "bind" the whole court (the way Matchett did). In that way, later litigants are "bound" by the first brief on an issue, even if it was not very well researched or presented. Hopefully, this writing is a sign that this insidious and unnecessary rule's days are numbered.

Thursday, July 07, 2016

11th Circuit issues 3 judge concurrence

This opinion is interesting. Judges Jordan, Rosenbaum, and Jill Pryor denied a motion for a second habeas petition based on existing law in the 11th Circuit (which is way out of whack with the rest of the circuits).  But then they issued a 3-judge concurrence saying that the existing law is wrong. From their joint concurrence:

Although the mandatory Sentencing Guidelines operated to cabin the discretion of judges, just like sentencing statutes passed by Congress, a panel of our Court recently held that the Supreme Court’s decision in Johnson v. United States, 135 S. Ct. 2551 (2015), which struck down the residual clause of the Armed Career Criminal Act, 18 U.S.C. § 924(e), as unconstitutionally vague, does not apply to the identical residual clause of the mandatory career offender guideline, U.S.S.G. § 4B1.2(a)(2) (2003). See In re Griffin, No. 16-12012, __ F.3d __, 2016 WL 3002293 (11th Cir. May 25, 2016). The Griffin panel also concluded that, even if Johnson did apply to the residual clause of the mandatory career offender guideline, the Supreme Court’s decision in Welch v. United States, 136 S. Ct. 1257 (2016)—which held that Johnson was retroactive to cases on collateral review—did not make Johnson retroactive in cases involving challenges to the Sentencing Guidelines. Although we are bound by Griffin, we write separately to explain why we believe Griffin is deeply flawed and wrongly decided.

Sad day.

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Tuesday, July 05, 2016

Welcome back.

We start year 12 with this cool article from the Herald about Fane Lozman, who has this message for his town:  Fane Lozman returns, Thank you... U.S. Supreme Court 

From the article:
“I want to make a statement,” he said. “I want people to see who I am and then they can look up the case to find out more.”
Lozman’s troubles began when Riviera Beach “arrested” his houseboat in April 2009 and later destroyed it. Lozman, a former Marine Corps officer, argued that the city couldn’t regulate his home as a maritime vessel.
His houseboat had been moored at the Riviera Beach marina after Hurricane Wilma destroyed his former marina in North Bay Village in 2005. The structure did not have an engine and was equipped to be connected to sewer lines on dry land.
In 2013, the Supreme Court, by a 7-2 vote, overturned an 11th Circuit Court of Appeals ruling, deciding that Riviera Beach didn’t have the jurisdiction to have his boat seized. He said he still hasn’t recovered his financial losses — including the cost of the boat — from the city, and hopes he will soon.

Meantime, Justice Sotomayor is kicking some ass (via NYT):

The Supreme Court term had barely gotten underway in early November when Justice Sonia Sotomayor issued her first dissent. A police officer’s “rogue conduct,” she wrote, had left a man dead thanks to a “‘shoot first, think later’ approach to policing.”
Justice Sotomayor went on to write eight dissents before the term ended last week. Read together, they are a remarkable body of work from an increasingly skeptical student of the criminal justice system, one who has concluded that it is clouded by arrogance and machismo and warped by bad faith and racism.
Only Justice Clarence Thomas wrote more dissents last term, but his agenda was different. Laconic on the bench, prolific on the page and varied in his interests, Justice Thomas is committed to understanding the Constitution as did the men who drafted and adopted it centuries ago.
Justice Sotomayor’s concerns are more contemporary and more focused. Her dissents this term came mostly in criminal cases, informed as much by events in Ferguson, Mo., in 2014 as by those in Philadelphia in 1787.
She dissented again in January, from Justice Antonin Scalia’s final majority opinion. Joined by no other member of the court, she said the majority in three death penalty cases might have been swayed by the baroque depravity of the crimes. “The standard adage teaches that hard cases make bad law,” she wrote. “I fear that these cases suggest a corollary: Shocking cases make too much law.” 

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Friday, July 01, 2016

Happy 11th birthday to the blog

Tomorrow the blog turns 11 years old, which is very old in blog years!  It's been pretty cool covering the District ... we are at 3000 posts and counting. 

The very first post 10 years ago asked for President Bush to appoint a Floridian to the Supreme Court.  Although the Court did get its first Hispanic jurist, it did not get a Floridian.  Hopefully one day soon!

Thanks to all of you for reading, sending me tips, and commenting.