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APPELLATE ALERTFor those of you who file motions for err 6nf1c reco~~~iderxlio~~ of a COXs decisio~~ p~usuantto TRAP 47.9, be aware Illat such a motion may not preseme your right to file a PDR.OnlJ' n tirirelJ'filed rirotios for rehenring iiruokirig TIM'49.1 (or Rule 49.5, if theCOA takes some further action, such as issuing a supplemeoral opinion) III~N esterrd thetirrrepc1.iod. The reason is e~idently the difiererenr ti~ue periods involved: Rule 49.1 requiresthe "regular" ll~otio~~ lor rel~rnring to be filed rnill~i~~ 15 days from the date the COA handsdo~r.11 its decision, wl~ile Rule 49.7 pro\~ides oslytl~at the motion for ar lxrrrc reco~~~ideratio~~111us1 be filed while the COA has "plenaq jurisdiction." Thus, if such motion is not filed witllinthe 15 dqs, the CCA rrrill disrniss~'orrrPDR as rrnrfrrreI)'. This situatioll has occurre11with COXs that 11:lve been treating reconsideration inations as "regular" notions, even if filedoutside the 15 da)s. Because there really is no provision for fi~ga "hlotios for RehearingEn Rnnc," if you \vant to ask for en banc rel~eari~~g or recomideration, it is therefore :I goodidea to file a "Motion tor Relle:lring and Reconsideration En Hanc," invoki~~g Rules 49.1 and49.7, and be sure it is filed witl~is the 15 days required by Rule 49.1.FIFTH CIRCUITSLEEPING LWYER IS NO W\VSEK Lr ALL: OILI'IV JEIIOLD BURDINE K JOHN-SON, No. 99-21034, Opi~lion on Rellc~ring En Ila~~c, Grant of Relief Afh~e~l, 8/13/01;Opinion: Benavides; Concurring Opi~lion: Higgu~botham, joined by King, Ibis 8 \\'einer;1)isseots: Joll~ joined by Smith, 8 Barksdale, joined by Jaws, Slnitl~ & Garza.DECISIONSREPORTSDR, for. October 2001Burdine \ms cowicred of capitd murder and sentenced to death bwk in 1984, and CGIaffir~netl. After a writ I~caring, although the state trial court recon~n~endetl granting reliefbecause Burdine's lanyer 11ad slept tl~rougl~ signific:mt portions of his trial, CCA denied relief.The federal district court gra~~ted relief l~asetl on the state 11abe.u court's findings, conclutlingtlut "sleeping couosel is eqoimle~~l to no cou~~sel at all." A Viftl~ Circuit panel disagreed, howevel; and reversed the grant of relief, holding tht: (I) district court l~atl created a new rule,so~netl~ing forbidde~~ u~~der Tiygrto I). Lm~c's retroactivity doctrine, and; (2) the prcsumptio~~of prejudice did not apply to Burdine's case. Beoavides, the aull~or of his opinion, wrotc adissent. Rehearing en banc was granted to rleternline \\.bether this inling \\as correct.Held: A rlefe~~da~~t's 6"' Aa~eod~nent richt to co1111se1 is violated w11e11 that defeodaot'scou~~sel is repeatedly onco~~scious tl~rougli oot iw~bstantial portioos of thedefendant's capital murder trial. Under such circ~~msmnc~:s, U.S I , Cmsic, 466 U.S.648, 104 S.Ct. 2039 (1984) requires Court to presume th:tt the 6'11 hnendo~cnt violation prejudicedthe defendant. After a le~~gtl~g analpis, the Court rejects :dl the State's arguments andco~~clutles Illat "Burdine seeks the benefit of a rule well-eslablisl~cd at the lim Illat his convictionbecame fieal: when a defenrlant does not hare cor~nsel at evey critical stngc of a crininidp~weeding, the coort IIIUSI IIESLIIIIC tlut such egregious deficiency prejudiced the fairnessof the trial. Bec:~~~se Burdine does not seek the benefit of a acw role, we need llot discussthe e;~rioas erceplior~s to 1eng11e." At the time Burdine's conriction beca~ne film1 (1987.whea the Supren~e Court denied cert), application of 6'" r\mendmeot priaciples firmly esrablisl~etlby 1987 (in Cmrric and Slricklrr~rd, both l~anded do\m in 1984), entitled l~im to effectiveassisko~ce of counsel at e\wq stngc of the proceeding, and con~pel such a presumption ofprejndice on the facts of tl~is case. 111 bolh Crorric :ml Stricklnrrrl, the Sup~r~nes recognizedtllat ahse~lce or denial of counsel at a critical stage of a criminal proceeding represents oneof the egregio~~s circu~nsrnnces that requires the presu~nptio~~ of prejudice. B~~rtline seeksapplication of this n~le to the facts of his case, arguing he nas repe:~tetlly\\~itlloul coul~sel duringthe most critical part or trial: guilllionocence. And hecause he was without coullsel, Courtsl~ould presunle prejudice in sccortl wit11 Crorlic. The rule Burdine seeks to benefit is0111 isnot mi\: should not have llreen su~yrising to the Sktte in 1987, and is not basred 11)' X?(rgr~e's28 VOICE FOR IRE DEFENSE WWW.TCOLA.COM OCTOBER 2001
SIGNIACANT DECISIONS REPORTnon-retroactivity mandate.lbing to the merits, Court agrees w~th the ~ ~~trict Court that anunconscious attorney equates to no counsel at all. Once the Courtaccepts (as the State and CCA did) as presumptively correct the statecourt's finding that counsel slept during portions ofthe trial, particularlythe guilthnnocencephase when the prosecutor was questioningwitnesses and presenting evidence, there is no need to attempt to furtherscrutinize the record. An unconscious attorney cannot exercisejudgement on behalf ofhis client, and when the Court has no basis forassuming that counsel exercised such judgment during critical stagesof trial, there is an insufficient basis for tmthtg the fairness of trial,and consequently must presume pejudice. (Court declines to adopt aper se rule that any dozing by counsel during h'ial me& a presumptionof prejudice.) Based on the state court's Wings, accepted by allas presumptively correct, the Court affirms the district court's grant ofrelief, md vacates Burdine's conviction.BNAANCEMENT FOR AGGRAVATED FBLONY HBLD NOTPROPBR: UNITBD $lX%S 1! LANDERIOS-GONZ.UW, No 01-10066,08/14/01.Defendant plead guilty to illegal reentry. The court imposed a 16-levelincrease under the guidelines, based on a prior conviction for anaggravated felony. The aggravated felony was criminal mischief, whichinvolved painting graffiti an a building and fence. The conrt concludedit wasnot a crlme of violence, which is defined as any offense which byits natmeinvolves a substantialiisk that physical force against the personor property of another may be used m the course of committingthe offense. The critical term was force, dich the court construed tobe synooylnous with destnwti~e or violent force. There is not a substantialrisk that a vandal will use destructive or violent force in thecourse of a conuuifting an offense such as the one here. Therefore, theenhancen~ent was not proper, and thesentence wasvamtedNO PROBABLE CAUSE FOR SEARCH OF CAR: UNW STXl2SF? HUhT NO. 00-60333,06/01/01,In this case the defendant was stopped for a t&c violation. He gotout of Ms car to meet the trooper, instead of waiting for the trooper toapproach him. Based on that action, the frooper looked inside the car,and uncovered guns and eventually drugs. The only basis for the searchw.u that the trooper testified he always searched a carforweapo~andcontraband whenever anyone got out instead of waiting for him. Courtholds that was not asu£Ecient basis for asearch. Court rejects the argumentsthat this was standard and accepfahle practice, the decision toleave the car was not com~on and that the defendmt was nervous. Ina specially conc~uring opmion, Justice King noted that the search couldbe supported heed on the dcers own experience or the specific factsof the stop. However, since no such evidence wasprcsented, the searchwas not proper.DURATION OF BORDER STOP NOT UNRBASONABIB: UNIT-Ba SlXfJ?S K nt4CHUC4-BARRBR4, NO. 00-50531,08/02/01.The defendant was stopped at a border check point, and questionedabout his citizenship. He was also asked whether he was anyingfirearms or drugs, which he denied. A consent to search was thenrequestedand obtained. The issue was whether the detention was law-ful. Court focused on the duration of the smp, and rejkted any focuson the specific questioning. Thus, as long as the dumtion of the stop isreasonable, an officer is free to ask questions unrelated to the initialpurpose of the stop, which in this w e was checking on immigrationviolations. Court concludes fhat the permissible duration of an immigrationcheckpoint stop is the themsonably necessary to determinethe ciUzenship status of the person stopped, which must be brief. Thestop here tookno more than a iew minnres, which was not unreasonable.Therefore, the search pursuant to consent was proper.SBhTBNCE IN EXCESS OF MAXIMUM VIOLATBD DEFBN-DAhl"S SuSSfAM1AI. RIGiE3 UNDED JYXBS t? GONZ41BS,No. 00-50406,07/09/01.The defendant plead guilty to conspiracy to possess with the intentto distribute marijuana. The factual basis indicated that he agreed todeliver approximately 500 pomds of marijuann The sentence wasbased on a total of 777 pounds of marijuana,md he was sentencedto78 months imprisonment. The defendant argued that this sentenceexceeded the mawimum sentence under the indictment, which wouldbe 5 years since no mounts were alleged Court initially addresseswhether the defendant waived his right to appeal. Court holds themerwas pxoper, and prevented the appeal of d~ug quantity and roleatljushnent issues. The waiver did not preclude an appeal of theAppredi issue tl~ou~gh. Court reviews the test for plain error, and COPch~des the defendant's substantial rights uae affected, since he wassentenced to more than the stmtory maximum. The court notes thatthere are two classes ofqppmdi errors which it has reviewed. Thefinst is a situation in which the indictment alleges drug quantity but theju~y was not instnicted on that element; the other is where the indictmentfailed to allege drug quantity. The latter could have been corrected,but not be former. Co~~rt goes on to suggest that the court has nojurisdichon in those cases. Where the indictment does not allege anenhanced amount, the court has no jurisdiction to impose anythingabove the normal sentence nus was reiterated in United Stafes u.Longoria, No. 00-50405 (5e Cir 7/19/01], which was also a guiltyplea case. There, the court held that aguiltyplea does not waive jurisdictionaldefects, wlich is the me when theindictment doesnot allegean enhanced amount.ERROR NOTTO AJAOW SEVERANCE OF UM(BLATBD COUlWtUiWIHI STXlW is SINGH, No. 00-40946,08/10/01.In this case, the defendant was charged with and convicted of harboringaliens for commercial gain. He was l o charged with being afelon in possession of a hearm, but was acquitted of that offense. Onappeal$ he alleged error in the failure to sever the possession count.Court agrees, noting that the count was not connected or related to theother charges. Because of that, the government was allowed to provethat the defendant had a prior conviction, and that he had beeninvolved in trafncking illegal weaprms. Bis credibility was a criticalissne, since he claimed he did not know be aliens wew working illegally.Since the prior conviction went to his credibility, court holds hewas prejudiced, and reverses the conviction.OClOBlR 2001 WWW.1CDLA.COM VOICE FOR M E DEFENSE 29
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