6th Circuit Published Decisions for Weekof Sept 9-14, 2007

 

Opinion	Pub Date	Short Title/District
07a0368p.06	2007/09/10	USA v. Hairston     OHS - Southern District of OH at Columbus BOYCE F. MARTIN, JR., Circuit Judge. The United States appeals Joseph Hairston’s 60- month sentence, which was re-imposed by the district court on remand in light of United States v. Booker, 543 U.S. 220 (2005). The government contends that the sentence is substantively unreasonable. We disagree, and thus AFFIRM Hairston’s sentence.
07a0369p.06	2007/09/11	USA v. Jones     Eastern District of Kentucky at London RICHARD MILLS, District Judge. Alice Jones appeals the district court’s judgment of forfeiture as to real property and a mobile home that she owned with her husband. Because we conclude the Government did not establish that there was a nexus between Jones’s criminal activity and the property after she acquired title, we must reverse
07a0370p.06	2007/09/11	Garner v. Mitchell     Southern District of Ohio at Columbus KAREN NELSON MOORE, Circuit Judge. Petitioner-Appellant William Garner (“Garner”) appeals from the district court’s order denying his petition for a writ of habeas corpus. In 1992, Garner was convicted and sentenced to death in Ohio state court on five counts of aggravated murder, one count of aggravated burglary, two counts of aggravated arson, one count of theft, and one count of receiving stolen property. His convictions and death sentence were affirmed on direct appeal and collateral review in state court. Garner then filed a petition for a writ of habeas corpus in the federal district court raising twenty-three grounds for relief. Garner raises four of those issues here on appeal, arguing that: (1) he did not knowingly and intelligently waive his Miranda rights before speaking with the police; (2) his state trial counsel were ineffective for failing to investigate and argue his Miranda claim; (3) the state trial court erred by not providing Garner with experts to assist with his Miranda claim; and (4) the process by which his petit jury venire was selected discriminated against African-Americans. Because we conclude that Garner did not knowingly and intelligently waive his Miranda rights, we REVERSE the judgment of the district court and GRANT Garner a conditional writ of habeas corpus.
07a0371p.06	2007/09/11	USA v. Roach; USA v. Sheldon     Eastern District of Tennessee at Greeneville RONALD LEE GILMAN, Circuit Judge. In 2006, a jury convicted former Newport, Tennessee Police Officer James Wendell Roach of depriving two Hispanic men of their civil rights under color of law, in violation of 18 U.S.C. § 242, and convicted former Newport, Tennessee Police Officer Patrick James Sheldon of being an accessory after the fact, in violation of 18 U.S.C. § 3. Roach was sentenced to 10 months of imprisonment and Sheldon was given two years of probation. The district court also denied Roach’s motion for bond pending appeal. For the reasons set forth
07a0372p.06	2007/09/11	USA v. Hearn     Western District of Tennessee at Jackson ROGERS, Circuit Judge. Can the government, for the purpose of establishing the heart of the government’s case, repeatedly solicit testimony regarding confidential informants’ statements to the effect that a defendant had the intent to distribute illegal drugs, when the defendant does not have an opportunity to cross-examine the informants and when the government is on notice of a potential Sixth Amendment problem? That question is central to Chad M. Hearn’s challenge to his convictions. Because the government relied extensively on confidential-informant statements to prove key elements of its case without providing Hearn an opportunity to cross-examine those informants, the admission of the confidential informants’ statements violated Hearn’s right to confront witnesses against him.
07a0373p.06	2007/09/11	USA v. Carter     Middle District of Tennessee at Nashville McKINLEY, District Judge. This matter is before the Court upon Defendant Wayne Carter’s appeal of the district court’s denial of his Motion to Amend Sentencing pursuant to 18 U.S.C. § 3582. Finding no error, the decision of the lower court is affirmed.
07a0374p.06	2007/09/11	Varner v. Stovall     Eastern District of Michigan at Ann Arbor SUTTON, Circuit Judge. A jury convicted Janniss Varner of assault with intent to commit murder after she hired a third party to shoot her abusive boyfriend. In her federal habeas petition, she claimed that the state courts (1) violated her rights under the Religion Clauses of the First and Fourteenth Amendments by admitting into evidence several journal entries that included prayers and an acknowledgment that she had tried to kill her boyfriend and (2) violated her Sixth and Fourteenth Amendment rights by refusing to allow her to introduce evidence of Battered Women’s Syndrome in support of her theories of self-defense and provocation. Because she has not shown that the state courts unreasonably applied relevant Supreme Court precedent, we affirm the district court’s denial of the petition.
07a0375p.06	2007/09/12	USA v. Powers     Eastern District of Michigan at Ann Arbor ALGENON L. MARBLEY, District Judge. Defendant-Appellant Jethro Rene Powers appeals his conviction for possession with intent to distribute a controlled substance in violation of 21 U.S.C. § 841(a)(1). The Sixth Amendment’s Confrontation Clause, as interpreted by the Supreme Court in Crawford v. Washington, 541 U.S. 36 (2004), requires that a defendant be able to confront his accuser if the accuser’s “testimonial” statements are introduced at trial. Powers contends that the district court violated his Sixth Amendment rights by allowing police officers to testify regarding statements made by their Source of Information (“SOI”)1 relating to “Powers’s drug-selling background, the type and weight of the narcotics, the identification of the vehicle driven by Powers, the time and location of meeting places and most importantly, the SOI’s eventual identification of Powers.” (Def.’s Brief at 5.) The Government did not call the SOI as a witness at trial and thus, Defendant could not cross-examine him. Defendant also contends that the district court abused its discretion and acted in a biased manner when it consistently interrupted, derided, and truncated defense counsel’s cross-examination of witnesses. Defendant asks this Court to reverse his conviction and remand this case for a new trial. For the reasons discussed below, we AFFIRM Defendant’s conviction.
07a0376p.06	2007/09/13	USA v. Lee     Western District of Tennessee at Memphis BOYCE F. MARTIN, JR., Circuit Judge. Defendant Sean William Lee pled guilty to using a computer and telephone for purposes of persuading a minor to engage in sexual acts, in violation of 18 U.S.C. § 2422(b). Lee was sentenced to 188 months’ imprisonment, to be followed by supervised release for life. Lee was ordered to comply with several conditions of release. One of these conditions, which he challenges in this appeal, is the requirement that he participate in a specialized sex offender treatment program that may include the use of a penile plethysmograph. For the reasons that follow, we decline to review the conditions of Lee’s supervised release at this time.
07a0377p.06	2007/09/14	Taylor v. MI Dept Nat Res     Western District of Michigan at Grand Rapids KENNEDY, Circuit Judge. Alan Taylor seeks review of the district court’s grant of summary judgment for the defendants, asserting that the trial court erred (1) in concluding that the conservation officer’s conduct did not constitute a search or an invasion of privacy, (2) in finding that the conservation officer was entitled to qualified immunity, and (3) in determining that plaintiff lacked standing to seek prospective injunctive relief against the director of the Department of Natural Resources in her official capacity. We find that the property check at issue was not a warrantless search in violation of the Fourth Amendment and, for the reasons that follow, affirm the district court.