Thursday, January 28, 2010

Who owns logs at the bottom of the river?

Continuing its discussion of off-the-beaten-track issues, the Eleventh Circuit found that Georgia could not claim Eleventh Amendment immunity in a suit brought over old growth logs lying at the bottom of the Flint and Alapaha Rivers since Georgia lacked actual possession of the res (i.e., the logs). Check out Aqua Log, Inc. v. State of Georgia for an interesting discussion of deadhead logs, ownership of submerged cultural resources, the Eleventh Amendment, and admirality proceedings.

Wind load standards for tower cranes and hoists

Yes, you read the title of this post correctly. The Court held in Associated Builders and Contractors v. Miami-Dade County, Florida, that the Occupational Safety and Health Act, 29 U.S.C. §651-§678, preempted a section of a local ordinance mandating wind loads for tower cranes and hoists. In doing so, the Court rejected various arguments from Miami-Dade about the focus of its ordinance, whether the federal act set a "federal standard," and whether the federal act constitutes an unconstitutional delegation of legislative power.

2254 opinion

Since 2254 is such a specialized area, I will recite the Court's holding in Thompson v. Secretary, Department of Corrections, and let you, dear reader, figure out if it's pertinent to your practice: "we conclude that the district court incorrectly dismissed Thompson's federal habeas petition as untimely based on its erroneous determination that Thompson's September 2004 and December 2005 state habeas corpus petitions were not 'properly filed' within the meaning of §2244(d)(2). As the latter petitions met all the state procedural and filing requirements on their face, Thompson was entitled to statutory tolling of the one-year limitations period under §2244(d)(2) during the pendency of those petitions."

2241s and restitution

Can a prisoner use 28 U.S.C. §2241 to challenge only the restitution portion of his sentence? The answer is "no," according to Arnaiz v. Warden. The Court rejected a savings clause analysis of §2241 in light of its recent decision in Mamone v. United States, 559 F.3d 1209 (11th Cir. 2009)(finding that petitioner could not use §2255 to challenge restitution, even if coupled with claim seeking release from custody). As for §2241 itself, a successful challenge to the restitution portion of a sentence would not provide relief from physical confinement -- which is the hook necessary for §2241 jurisdiction. Without a "signficant connection between Arnaiz' factual custody and the legal relief he seeks," §2241 could not provide a procedural vehicle for this claim.

Monday, January 25, 2010

Batson and Miranda issues

The Eleventh Circuit issued United States v. Bernal-Benitez today, one of those soup-to-nuts opinions that covers a variety of issues -- here, sufficiency, Batson, prosecutorial remarks during closing argument, suppression, and the role in the offense enhancement at sentencing. Two discussions are particularly interesting.

As to the Batson claim, the prosecutor said that he struck a black juror because he was less educated than other members of the venire and the government wanted a more educated panel; the defense pointed out that the prosecutor accepted a postal worker, a bus driver, and an airport parts mechanic. The Eleventh Circuit affirmed the judge's overruling of the Batson objection, saying that the judge identified that the challenged venire person's style of communication and demeanor set him apart from other blue-collar workers on the panel. The Court rejected a plain error defense argument that after the trial judge upheld this strike, he should have revisited the Batson objection to the prosecutor's strike of another juror; the Court refused to find that the trial judge had a duty to review sua sponte any prior Batson ruling based upon the same grounds.

Second, the Court affirmed the finding that a co-defendant's statement had been voluntarily given despite the fact that the agents wrote it down in English, which that defendant did not speak. (A Spanish-speaking FBI agent testified that he orally translated the statement for the defendant before the defendant signed it.) The Court acknowledged that "it seems unusual to have a suspect sign a statement written in a language he cannot read," but found that the situation did not involve police overreaching.

Friday, January 22, 2010


Congratulations to Brian Tanner, the new appellate chief for the United States Attorney's Office for the Southern District of Georgia.


Here's a link to United States v. Marquez, an extradition case that the Eleventh Circuit decided today. Marquez held that "a claim that the extradition violates the rules of specialty and dual criminality is a challenge to the court’s personal jurisdiction over the defendant and must be raised in a pretrial motion pursuant to Rule 12." Thus, Marquez waived his challenges in this regard by making them three years after the pretrial motions deadline.

Thursday, January 21, 2010

Beware of jurors bearing gifts

Who among us can't remember the first time we read the Wellons case? Chocolate shaped like male genitalia and female breasts presented to the trial judge and bailiff in a murder case? Huh? On Tuesday, the SCOTUS summarily granted cert., vacated, and remanded (GVR) Wellons to the Eleventh Circuit for an evidentiary hearing, relying on its intervening decision in Cone v. Bell. Here's a link to SCOTUSblog's discussion of the case, as well as to the Eleventh Circuit's initial opinion.

Senate votes to confirm Judge Martin

Yesterday, the Senate voted 97-0 to confirm Judge Beverly Martin to a seat on the Eleventh Circuit. Here's a link from