The 11th Circuit Appeals Blog

Footnote 7

2010-06-16T12:17:00.000-07:00

In his characteristically snappy writing style, Judge Carnes summarized conflicting opinions with parentheticals that read "Bull!" and "au contraire." Read footnote 7 of United States v. Harris to see what I mean. But also read the rest of the opinion; it adds to the emerging body of law about what is a violent felony under the Armed Career Criminal Act. Here, Harris was convicted of sexual battery on a child under the age of 16 under Florida statute §800.04(3) (1996). The Court found that that conviction was not a violent felony under the residual clause of the ACCA. Why? "Because the Florida statute, viewed categorically, imposes strict liability and covers such a broad range of conduct, we cannot say that a violation of it typically involves 'purposeful,' 'violent,' and 'aggressive' conduct" under Begay.

The need to file a timely motion for reconsideration

2010-05-24T06:38:00.000-07:00

Reminding the reader that a timely notice of appeal is a jurisdictional requirement in a civil case, the Eleventh Circuit dismissed as untimely an appeal where the motion for reconsideration was filed a week late. It never hurts to check the rules, and if you need a little something to scare you into doing that, check out Green v. DEA, No. 07-15334.

Categorical approach;one type of agg assault not a crime of violence

2010-05-24T06:27:00.000-07:00

The Eleventh Circuit addressed yet another "crime of violence" issue under Shepard and Taylor in United States v. Garcia, No. 09-10534. There, in the context of the 16 level enhancement under U.S.S.G. §2L1.2(b)(1)(A)(ii), the Court found that an Arizona conviction for aggravated assault was not a crime of violence. First, the Court rejected the government's argument that the name of the conviction was determinative: "We . . . hold that the label a state attaches to an offense is not conclusive of whether a prior conviction qualifies as an enumerated offense under §2L1.2." Second, after considering opinions from the 5th, 6th, and 9th Circuits, the Court addressed the elements that a generic aggravated assault must contain -- it "involves a criminal assault accompanied by the aggravating factors of either the intent to cause serious bodily injury to the victim or the use of a deadly weapon." The Arizona statue of conviction did not require either serious bodily injury or the use of deadly weapon; it only required a simple assault with an aggravating factor that the victim was a law enforcement officer. Third, as for the "use of physical force" consideration under §2L1.2, the Court determined that the Arizona statute's mens rea could be satisfied by recklessness, which was insufficient.

Other cases (week of March 29, 2010)

2010-04-01T07:02:00.000-07:00

LeBlanc v. Unifund CCR Partners considered a Fair Debt Collection Practices Act issues under 15 U.S.C. §§1692e(5) and 1692f, reversed the grant of partial summary judgment to plaintiff, and remanded the matter for trial.

Mid-Continent Casualty Co. v. American Pride Building Company, LLC addressed duty to indemnify provisions in an insurance contract under Florida law.

SFM Holdings, Ltd. v. Bank of America Securities, LLC affirmed the dismissal with prejudice of a complaint seeking damages for breach of fiduciary duty and constructive fraud in a securities case.

Class action decision

2010-04-01T06:54:00.000-07:00

In Sacred Heart Health Systems v. Humana Military Healthcare Services, the Court reversed the district court's determination under Fed. R. Civ. P. 23 to certify a class in a case brought by 260 hospitals against Humana. Why? The Court agreed with Humana that "many important uncommon questions raised by this litigation overwhelm the one common issue and render the case unsuitable for class treatment." For instance, breach of contract claims are "peculiarly driven by the terms of the parties' agreement, and common questions rarely will predominate if the relevant terms vary in substance among the contracts." (The Court noted that a form contract would better suit class certification.) The Court also noted the differences in the applicable state laws governing those contracts. The Court acknowledged the disparity in power between Humana and "even the largest of the class members here." Nonetheless, it remanded the case to the district court to determine whether any subset of the claims or class members might be suspectible of fair and efficient class treatment.

1983 opinion -- deliberate indifference to medical need

2010-04-01T06:43:00.000-07:00

In Townsend v. Jefferson County, the Court considered the actions of deputies in responding to the medical needs of a pregnant detainee who used crack cocaine daily. The undisputed evidence showed that both deputies knew that a nurse at jail and seen and spoken with the detainee, and it was undisputed that the nurse determined that the detainee's medical need was not an emergency. The detainee later suffered a miscarriage while incarcerated. She sued the deputies, claiming that they violated her civil rights under the 14th Amendment by acting with deliberate indifference to her medical needs. The district court denied the deputies' motion for summary judgment on qualified immunity grounds, and the Eleventh Circuit reversed and rendered a judgment in favor of the deputies.

New false arrest case

2010-03-23T08:06:00.000-07:00

In Rushing v. Parker, the Court considered a §1983 false arrest claim and affirmed the district court's grant of qualified immunity to the defendants. There, two Polk County sheriff's deputies misidentified and arrested Rushing based upon a citizen's complaint that a roofer had ripped him off. After an investigation, the deputies arrested Rushing although the state later dropped charges when it determined that Rushing had been misidentified. The victim filed a complaint against the plaintiff by name and identified the plaintiff as the perpetrator in a phot line-up, although fingerprint evidence later exonerated the plaintiff. Given these facts, the Court found that the deputy's arrest affidavit, although mistaken, was sufficient to establish probable cause to arrest Rushing.

Court upholds 922(g) against constitutional challenge

2010-03-04T08:24:00.001-08:00

In United States v. Rozier, the Court rejected a challenge that 18 U.S.C. §922(g) unconstitutionally infringed on Rozier's Second Amendment right to keep and bear arms. Analyzing Heller, the Court noted that the conduct fell within the longstanding prohibitions of possession of firearms by felons, and as a felon, Rozier fell within a prohibited class. The fact that he may have possessed a firearm in his home for self-defense was irrelevant. The Court also upheld Heller's ACCA sentence, reminding the reader that Almendarez-Torres remained good law.

Appellate courts in popular culture

2010-02-18T14:30:00.000-08:00

On behalf of appellate lawyers everywhere, I salute Domino's Pizza for filming its latest (and widely-played) ad in front of the courthouse of the United States Court of Appeals for the Fifth Circuit. Why? A dispute with Papa John's, apparently involving "puffery," must have led it there. Double pepperoni all around!

Who owns logs at the bottom of the river?

2010-01-28T12:25:00.000-08:00

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

2010-01-28T07:16:00.000-08:00

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

2010-01-28T07:02:00.000-08:00

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

2010-01-28T06:57:00.000-08:00

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.

Batson and Miranda issues

2010-01-25T11:04:00.000-08:00

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.

Congratulations!

2010-01-22T08:28:00.001-08:00

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

Extradition

2010-01-22T08:22:00.000-08:00

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.

Beware of jurors bearing gifts

2010-01-21T06:39:00.000-08:00

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

2010-01-21T06:38:00.000-08:00

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

Insider-outsider political discrimination

2009-11-16T11:59:00.000-08:00

In Corey Airport Services v. Decosta (Edmonson, Birch, Cox), Corey, "a self-proclaimed political outsider," claimed that the City rigged the bidding for advertising services at the Atlanta airport so as to favor the "political elite." According to Corey, this decision violated the equal protection clause by differentiating among bidders based upon their political clout. The individual defendants successfully claimed qualified immunity. Reversing the district court's denial of summary judgment, the Eleventh Circuit held that precedent did not make clear that the defendants' actions violated any clearly established constitutional right. Indeed, the Court noted that Corey's "claims of insider-outsider political discrimination present not only novel factual circumstances, but also a novel question of law."

The third time is not the charm

2009-11-16T11:30:00.000-08:00

In United States v. Livesay (Dubina, Birch, and 6th Circuit visitor Siler), the Court held that a probationary sentence for a former executive at Health South was an unreasonable sentence. Since this appeal represented the third government appeal (and remand), the Eleventh Circuit clarified that any probationary sentence in this case would be unreasonble in light of the magnitude and seriousness of Livesay's conduct. Wonder what will happen on remand . . . .

Capital habeas petition denied

2009-11-10T11:23:00.000-08:00

In Pardo v. Sec'y, Florida Dept. of Corrs., the Eleventh Circuit (Birch, Black, Wilson) affirmed the denial of Pardo's capital habeas petition. Pardo, a former police officer, testified at trial that he killed the victims because they were drug dealers, "parasites" and "leeches" who had no right to be alive. Pardo also testified that after he killed each victim, he took a picture of the body to capture the victim's spirit and then burned the picture in a special ash tray. At the penalty phase, Pardo called himself a "soldier" and asked for the death penalty to be imposed. After considering the jury's verdict and the aggravating and mitigating circumstances, the trial court imposed the death penalty. On 2254 review, the Court rejected Pardo's competency claims, a claim of ineffective assistance of counsel premised on the competency claims, an ineffective assistasnce claim based on a severance argument, and a Brady claim.

Drugs don't grow on trees

2009-11-10T11:12:00.000-08:00

In United States v. Brown, the Eleventh Circuit (Carnes, Fay, and 9th Circuit visitor Alarcon) analyzed a drug conspiracy centered around local marketplaces called "trees." In rejecting a severance argument, the Court found that Brown had forfeited that argument by failing to raise it before the district court. The Court next examined Brown's conspiracy conviction, set forth the law in the Eleventh Circuit surrounding conspiracies, and stressed that conspirators need not know each other but must only facilitate the conspiracy. Third, the Court found that Brown's convictions six years before the conspiracy charged in the indictment were not too remote for 404(b) purposes. The Court also upheld Brown's 924(c) conviction. As for co-defendant Hall, the Court rejected his material variance argument and affirmed on authentication grounds the district court's decision allowing the admission of a copy of a tape of a controlled buy.

A little something about everything

2009-11-02T10:45:00.000-08:00

In United States v. Tate (Oct. 30, 2009, Carnes, Fay, and 9th Circuit visitor Alarcon), the Court addressed issues involving probable cause to search, the proper way to preserve a Batson challenge, and sufficiency of the evidence. It also concluded that Segarra -- which rejected the argument that section 924(c)'s "except" clause "means that if [a defendant's] mandatory minimum sentence for the drug offenses is greater than the mandatory minimum for the firearm offense, the two sentences cannot run consecutively" -- applies to a crime of violence, like bank robbery. (Note that Segarra rejects the Second Circuit's view and sides with every other circuit to have decided the issue.) Finally, the Court rejected Tate's substantive reasonableness challenge to his sentence.

Reservation of rights . . . the certified questions

2009-11-02T10:32:00.000-08:00

In World Harvest Church v. GuideOne Mutual Insurance Co. (Oct. 30, 2009; Carnes, Fay, Alarcon, a 9th Circuit visitor), the Court certified to the Georgia Supreme Court three questions about the reservation of rights under an insurance policy. Here, GuideOne defended a lawsuit for almost a year, and then determined that there was no coverage under the policy. It stopped defending the suit, and the policy holder hired its own attorney. The plaintiff in that suit and the policy holder eventually settled for $1 million, and the policy holder then filed suit against GuideOne to treat the earlier judgment as covered under the policy. The Court needed answers to three questions: 1) Did the insurer effectively reserve its rights? (The Court believed that it did not.) 2) Does the waiver and estoppel doctrine require a showing that the insured was actually prejudiced by the insurer's assumption of the defense? and 3) If actual prejudice must be shown, does this case show it?

Inquiring minds may want to know what the World Harvest Church did. Gause, a member of that church, ran a Ponzi scheme with another man, causing investors to lose about $165 million. Gause donated a great deal of money to the church, including a $1 million wire transfer to a Cayman Islands bank account. A receiver in the criminal case against Gause sought return of $1.8 million in donations, and when the church declined, this case ensued.

The question is moot

2009-11-02T10:22:00.000-08:00

In Beta Upsilon Chi v. Machen (Oct. 27, 2009, Tjoflat, Edmonson, Hill), the Court discussed at length the University of Florida's nondiscrimination policy for registered student organizations and Beta Upsilon Chi's Christian focus . . . and then found that the controversy was moot when UF changed its policy and allowed Beta Upsilon Chi to become a registered student organization. The case contains a nice summary of the law of justiciable controversies, including voluntary cessation.

No qualified immunity for excessive use of Taser

2009-10-27T07:29:00.000-07:00

In Oliver v. Fiorino, the Eleventh Circuit (Marcus, Hill, D.J. Vorhees) affirmed the denial of summary judgment on qualified immunity grounds to officers participating in the Taser-related death of Carl Oliver. Oliver, who had been using cocaine, flagged down Officer Fiorino as he stood on a median in the highway. When Fiorino stopped, Oliver tried to get in her squad car; she told him to move away, and he did. From 23 feet away, Fiorino asked Oliver what the problem was, and a "very fidgety" Oliver said that someone was shooting at him. Oliver first started to walk away, and then approached Fiorino, who raised her Taser and said to step back. He did. A back-up officer, Burk, arrived, to find Oliver shouting again in the median. The officers conferred about taking Oliver into custody under Florida's mental health laws, but they did not. Oliver complied with the officers' request for identification, but when Burk tried to force Oliver across the street (and out of traffic), Oliver struggled and pulled away from him; Burk held onto Oliver's shirt. Oliver did not swing at Burk or try to grab him.

Without warning, Fiorino tased Oliver for the first time, a jolt that brought him to the ground. Once Oliver was on the pavement, he never tried to get up, and he never kicked, hit, or threatened the officers. Nonetheless, Fiornio continued to tase Oliver -- somewhere between 8 and 12 times -- and paused to reload her Taser after one of the wires became stuck in Oliver's chest. Oliver began foaming at the mouth, and the paramedics who arrived recorded his temperature as 107 degrees. He died a few weeks later from the Taser-related injuries. Oliver's estate brought Fourtheenth Amendment-based claims for excessive force against various defendants, including the officers.

The Court found that the use of the Taser was not objectively reasonable. A single tase may have been, but the repeated tasering (resulting in Oliver's incapacitation) was not. While no binding precedent had clearly established that repeated use of a Taser constituted excessive force under these circumstances, the Court found that a reasonable officer would have realized that her use of force was excessively disproportional to the circumstances so as to make it unlawful: Again, Oliver was not accused of a crime, did not act aggressively, and complied with the officers' directives.

Money laundering and legal fees

2009-10-26T13:11:00.000-07:00

In United States v. Velez (Barkett, Hull, D.J. Quist), the government lost its appeal about the meaning of the plain language of 18 U.S.C. §1957(f)(1), which excludes from the scope of §1957(a) "any transaction necessary to preserve a person's right to representation as guaranteed by the sixth amendment to the Constitution." Here, the defendants were a Miami attorney, a Columbian attorney, and a Columbian accountant. They had been hired by an accused Colombian drug dealer's legal defense team to determine whether funds earmarked for legal fees were derived from criminal proceeds. After his review, the Miami attorney issued an opinion letter that the funds from the accused dealer to him, as an intermediary, were not comprised of the proceeds of criminally derived property.

The Court held that the district court was "eminently correct" in holding that the defendants (the Miami attorney, the Colombian attorney, and the Colombian account) were not subject to criminal prosecution under §1957(a) in light of the plain language of the exemption in §1957(f)(1). In doing so, the Court distinguished the discussion of attorney's fees in Caplin & Drsydale as involving a statute involving civil forfeiture of criminally derived proceeds; indeed, the Court believed that Caplin & Drysdale supported the conclusion that such proceeds had been statutorily exempted from criminal penalties.

Law.com has more about this case at this link.

Post-Begay and Chambers, walkaway escape is not a crime of violence

2009-10-26T13:03:00.001-07:00

In United States v. Lee (Edmonson, Birch, Cox), the Court held that walkaway escape was not a crime of violence (career offender) or violent felony (ACCA) after the Supreme Court's decisions in Begay v. United States, 128 S. Ct. 1581 (2008), and Chambers v. United States, 129 S. Ct. 687 (2009). The Court also held that Lee, a passenger in an automobile who claimed no property or possessory interest in the car, lacked standing to challenge the search of that car. (Lee holds a soft spot in the heart of your blogger: It was my last argument as an Assistant United States Attorney.)

A police citizen encounter based upon apparent ethnicity

2009-10-26T12:52:00.000-07:00

In United States v. Quintana, the Court (Carnes, Fay, 9th Cir Judge Alarcon) affirmed the denial of motions to dismiss and suppress based upon the defendant's contention that police initiated a consensual encounter with him solely because they believed he was of Pakistani or Middle Eastern descent. (He was Mexican.) The Court discussed United States v. Avery, 137 F.3d 343 (6th Cir. 1997), which concluded that a Fourteenth Amendment violation may occur if a person is stopped solely because of his race or ethnicity. Nonetheless, the Eleventh Circuit determined that it did not need to decide the question presented in Avery since the record showed that Quintana's apparent ethnicity was not the sole reason the officers initiated the consensual encounter.

More Flores-Figueroa

2009-10-21T12:41:00.000-07:00

In United States v. Ross, the Court (Barkett, Pryor, Kravitch) found that a defendant's stipulation that she "used a social security number belonging to an M.D." and her confession that she "used my name and someone else's social security number" satisfied the willfulness requirements imposed on aggravated identity fraud convictions under §1028A by Flores-Figueroa.

Court shoots down application of Flores-Figueroa to 922(g)

2009-10-21T12:19:00.000-07:00

In an unpublished opinion, the Court (Tjoflat, Marcus, Anderson) rejected the notion that Flores-Figueroa overruled circuit precedent about the mens rea requirement of §922(g)(1). For full details, see United States v. Coney.

I demand a jury trial! (But not correctly, it turns out)

2009-10-19T14:12:00.000-07:00

In a diversity action over the proceeds of a life insurance policy, the Eleventh Circuit (Carnes, Pryor, and district judge Dowd) found that a jury demand made in the amended answer by the insured was not timely under Fed. R. Civ. P. 38, and that the insured's counterclaim raising the same issues and making a jury demand did not constitute "new issues" under Rule 38 so as to make a timely jury demand. Among other things, the Court goes on to discuss the law of the case doctrine. For all the details, see Mega Life v. Pieniozek, No. 08-14414 (Oct. 19, 2009).

Bench trial vs. jury trial: The mash-up

2009-10-19T14:01:00.000-07:00

What's a district judge to do when one defendant wants a jury trial and the other defendants want a bench trial as to drug quantities only? Run them simultaneously, with all defendants present; the jury not being told that the other defendants had pleaded guilty and sought a bench trial as to quantity only; the bench trial defendants' lawyers cross-examining quantity witnesses; and the verdict form relating to the jury trial defendant only. Although the Eleventh Circuit (Edmonson, Birch, and district judge Hodges) was not prepared to endorse this tactic, it found no reversible error especially in the absence of prejudice to the defendants. Check out the opinion at United States v. Chavez, No. 08-12683 (Oct. 16, 2009).

FDCPA and your answering machine

2009-10-19T13:53:00.000-07:00

With a preamble referencing a quote about the Vietnam War -- "we had to destroy the village to save it" -- Judge Carnes (joined by Judge Fay and Judge Alarcon, a 9th Circuit visitor) found that a creditor could not receive the protection of the bona fide error defense under the Fair Debt Collection Practices Act where it failed to inform the debtor in an answering machine message that it was a debt collector calling to collect a debt. The reason for the omission? The creditor was concerned that including this information in an answering machine message could be heard by the debtor's roommate, thereby leading to a violation of the FDCPA. Read the full opinion in Edwards v. Niagra Credit Solutions, No. 08-17006 (Oct. 14, 2009).

We meant what we said in Ambert.

2009-10-19T13:42:00.000-07:00

Not that there was any doubt, but the Eleventh Circuit this week upheld another Commerce Clause challenge to SORNA, relying on its prior decision in Ambert. For good measure, the Court cites its prior precedent rule, which reminds the reader that Ambert is good law unless and until reversed en banc or by the SCOTUS. For full details -- although there aren't many more -- check out the opinion in United States v. Myers, No. 09-10228 (Oct. 13, 2009).

Cert. grant in Holland v. Florida

2009-10-13T08:33:00.000-07:00

In August 2008, the Eleventh Circuit (Edmonson, Marcus, Pryor) held that "no allegation of lawyer negligence or of failure to meet a lawyer's standard of care -- in the absence of an allegation and proof of bad faith, dishonesty, divided loyalty, mental impairment, or so forth on the lawyer's part -- can rise to egregious attorney misconduct that would entitle the Petitioner to equitable tolling" under the AEDPA. For equitable tolling, pure professional negligence was not enough; instead, the Court looked for something more -- like affirmative misrepresentations about the filing time (see Downs v. McNeil) to justify equitable tolling.

This isn't the final word: The Supreme Court granted cert. in Holland today. Habeas lawyers, be governed accordingly.

And so it begins . . . .

2009-10-13T08:29:00.000-07:00

After a large public outcry -- okay, the inquiry of three or four friends who asked whether I was ever going to begin blogging -- I present the Eleventh Circuit blog. Check back here for summaries of opinions and news from and for appellate practitioners.