JoNell: February 2010 Archives

It's a long, but interesting read:  Doody v. Schriro.  My favorite paragraph, at page 30 of the pdf:

"The Miranda warnings provided to Doody were defective because Detective Riley downplayed the warnings' significance, deviated from an accurate reading of the Miranda waiver form, and expressly misinformed Doody regarding his right to counsel. In view of clear, convincing and contrary evidence, the Arizona Court of Appeals' conclusion that the Miranda warnings were "clear and understandable" constituted both an unreasonable determination of the facts and an unreasonable application of clearly established federal law. See Siebert, 542 U.S. at 608.

Our colleagues in dissent chastise us for reaching these conclusions, accusing the majority of "once again pay[ing] mere lip service to AEDPA and then proceed[ing] as though it did not exist." See Dissenting Opinion, p. 3032. The dissent would prefer that we simply parrot the findings made during the state court proceedings and call it a day. However, if we succumb to the temptation to abdicate our responsibility on habeas review, we might as well get ourselves a big, fat rubber stamp, pucker up, and kiss The Great Writ good-bye."

Well said, Judge Rawlinson.

Nevada Supreme Court issues 3 opinion

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In Foster v. Dingwall, the Nevada Supreme Court clarifies the procedure set forth in Honeycutt v. Honeycutt, which concerns NRCP 60(b)(2) motions.  The filing of a notice of appeal does not toll the time for a NRCP 60(b) motion.

The Court also issued a second opinion in Foster v. Dingwall, which concerns the strikingo of a pleading as a discovery sanction and the burden of proof for an NRCP 55(b) prove-up hearing to establish a default.

The Court issued an opinion in NAIW v. Nevada Self-Insurers Association.  It addresses NRS 616C.110 and whether activities of daily living are proper considerations in workers' comp. actions.


I have a brief due today, so you're on your own for reading these.  If anyone sees anything with application to criminal cases, please let me know.

The US Supreme Court issued one opinion today.  In Maryland v. Shatzer, the Court issued an opinion, authored by Justice Scalia, in which it found an exception to the 1981 decision in Edwards v. Arizona.  In Edwards, the Court held that once a suspect invokes the Miranda right to the presence of counsel, there is a presumption that any waiver of that right in response to police interrogation, while the suspect is in custody, is involuntary.  The defendant here invoked his right to counsel in 2003.  Investigation of the case closed and the defendant was returned to general population in prison pursuant to his conviction on another charge.  In 2006, another detective reopened the investigation.  The defendant waived his Miranda rights and gave an inculpatory statement.  The US Supreme Court creates a new rule in Shatzer by finding that if there is a break in Miranda custody of more than two weeks between the first and second attempts at interrogation, Edwards does not apply.  The defendant here was released back into the general prison population and the Court finds this to be a break in Miranda custody.  The continued detention, pursuant to a judgment of conviction, is disconnected from a custodial interrogation.  Justices Stevens and Thomas concur in the judgment but not the opinion.

Supreme Court grants cert in 2 cases

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The Supreme Court granted certiorari in two cases this week.  Scotusblog provides a summary and links to relevant documents:

Title: Los Angeles County v. Humphries
Docket: 09-350
Issues: (1) For a claim for declaratory relief against a local public entity, must the plaintiff demonstrate that the constitutional violation was the result of a policy, custom or practice attributable to the local public entity; and (2) if the plaintiff has not made such a showing, may he or she be a "prevailing party" under 42 U.S.C. § 1988 for purposes of a fee award?

Title: Harrington v. Richter
Docket: 09-587
Issue: Does a defense lawyer violate the Sixth Amendment right to the effective assistance of counsel when he does not investigate or present available forensic evidence supporting the theory of defense he uses during trial and instead relies on cross-examination and other methods designed to create reasonable doubt about the defendant's guilt?

In Florida v. Powell, a 7-2 decision authored by Justice Ginsburg, the Court finds that Miranda warnings were sufficient and did not mislead the accused into believing that he could not have an attorney present during questioning.  The Court notes that it has not required specific language for the warnings, so long as the warnings reasonably convey to a suspect his rights as required by Miranda. The Court also finds that a federal question is presented despite the Florida Supreme Court's citation to its state constitution as a basis for its holding.

The Court also issued an opinion in Hertz Corp. v. Friend.  The opinion concerns diversity-of-citizenship jurisdiction and finds that a corporation's principal place of business is the place where the corporation's high level officer's direct, control and coordinate the corporation's activities - it's nerve center.

Yesterday, the Court issued a per curiam, summary decision in Thaler v. Haynes.  The Court found that, under AEDPA, a trial judge need not personally observe a potential juror's behavior in later deciding whether the prosecutor used a peremptory challenge based upon the juror's race.  The prosecutor here claimed that the peremptory was used because of the juror's demeanor.  No prior ruling of the Court has required that the judge be present during jury selection in order to evaluate a Batson claim under these conditions.

The Court also issued a summary decision in Wilkins v. Gaddy.  The Court found that claims of excessive force on a suspect must be evaluated on the basis of the nature of the foce used, not on whether the plaintiff suffered an injury during the incident.

Nevada Supreme Court issues opinions

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The Nevada Supreme Court has issued its third and fourth opinions of the year.  One opinion addresses a child support issue and the other addresses the law-of-the-case doctrine in the context of an insurance action and also addresses a choice-of-law issue.

Fernandez v. Fernandez - "This is an appeal by the father of minor children from an order denying a motion to modify child support under NRS 125B.145.  The trial court held that it was "not bound" by NRS 125B.145 because the parties "previously agreed in a stipulation and order modifying the Decree of Divorce that neither party [would] seek modification of child support."  In the trial court's view, this made the child support order nonmodifiable, so long as the father had "sufficient means (assets and/or income) to meet the agreed upon child support obligations."

            The motion to modify alleged that the father's monthly gross income had dropped more than 80 percent, to the point his child support obligation exceeded it.  The mother's circumstances, meanwhile, had improved to the extent that her assets and gross monthly income equaled or outmatched his.  Declining to apply NRS Chapter 125B's modification provisions to these facts was error.  Stipulated or not, the obligation the father sought to modify was incorporated and merged into the decree as an enforceable child support order.  State and federal statutes give child support orders super-legal reach.  Because children's needs and parents' circumstances can change unpredictably over the life of a child support order, NRS Chapter 125B provides for their periodic review and modification--up or down--as changed circumstances dictate.  The statutory scheme does not admit a child support order that cannot be modified based on a material change in circumstances.

            The father's motion presented facts that, if true, qualified for relief.  He did not need to wait until he was missing court-ordered child support payments or in financial peril before being heard under NRS 125B.145 and its related statutes, NRS 125B.070 and NRS 125B.080.  We therefore reverse and remand."

Dictor v. Creative Management -  " In this appeal, we consider two legal doctrines: first, the application of the law-of-the-case doctrine, and second, the proper choice-of-law analysis for defenses to the subrogation of underlying tort claims.

            When an appellate court explicitly or by necessary implication determines an issue, the law-of-the-case doctrine provides that the determination governs the same issue in subsequent proceedings in the same case.  Because our unpublished order in a previous appeal involving these same parties and stemming from the same lower court case narrowly addressed a single issue, we conclude that the district court did not violate the law-of-the-case doctrine and the district court was not precluded from applying the Missouri Property and Casualty Insurance Guaranty Association Act, Missouri Revised Statute section 375.772 (Mo. Rev. Stat. § 375.772), and other alternate legal defenses on remand.  We also affirm the district court's choice-of-law conclusion, that the Missouri statute barring tort claims against an insured of an insolvent insurer precludes appellant CPCI's subrogation claims." 

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