Week 51 (2017)
Week of December 18, 2017 through December 22, 2017
Paul Thompson, Jr. v. Commonwealth of Virginia (Gregory 12/18/2017): The Fourth Circuit held that law enforcement officers are not entitled to qualified immunity when they intentionally fail to fasten an inmate’s seatbelt before transporting him and give him a “rough ride.” The plaintiff inmate asserted that the correctional officers in question violated the 8th Amendment by using excessive force and the 1st Amendment by using that force in retaliation for filing legal actions. Viewing the evidence in the light most favorable to the inmate appellant, the Fourth Circuit concluded that the appellant pleaded sufficient facts for this claim and that the officers had fair warning that their actions were unconstitutional. Therefore, the court overturned the district court’s grant of summary judgment for the two officers and the district court’s dismissal of state law claims, affirmed summary judgment on all other claims, and remanded for further proceedings. Full Opinion
United States v. Marcus Harris (Floyd 12/19/2017): The Fourth Circuit held that a district court has jurisdiction to revoke a defendant’s second supervised release because the first supervised release term continues to exist after it is revoked. The defendant argued that because his first supervised release term had already been revoked no additional charges could be asserted, but the Fourth Circuit held that that interpretation would be detrimental to the current supervisory release scheme because it would leave the court powerless to act upon newly discovered information or charges. Further, the defendant asserted that the court exceeded the statutory maximum for a revocation sentence because the aggregate sentence of his two supervised releases exceeded the maximum of 60 months, but the court held that it was improper to aggregate the sentences and that the district court therefore applied a term within statutory limits. Consequently, the Fourth Circuit affirmed the district court’s supervised release revocation and sentence. Full Opinion
US v. Leonard Oliver (Gregory 12/20/2017): The Fourth Circuit held that it has the authority to dismiss untimely criminal appeals sua sponte but that it should only do so in extraordinary circumstances. The defendant appealed his criminal conviction 44 months after the filing deadline, but the Government failed to object to his untimeliness. The court determined that it had a strong interest in protecting the finality of criminal judgments and the efficiency and fairness of the justice system, and that those interests were stronger than the principles of party presentation. Consequently, the Fourth Circuit dismissed the present appeal as untimely. Full Opinion
Westmoreland Coal Company v. Herskel D. Stallard (amended, Wynn 12/21/2017): The Fourth Circuit held that an Administrative Law Judge (“ALJ”) may properly find a retired mine worker eligible for federal disability benefits under the Black Lung Benefits Act when substantial evidence supports that decision. The ALJ found that plaintiff Stallard’s condition was caused by his employment as a mine worker rather than his history of smoking, and the court concluded that substantial evidence supported the ALJ’s finding. The court also held that Stallard’s claim was timely brought before the ALJ because it was brought within 3 years of Stallard becoming aware that black lung disease caused his permanent disability, even though the claim was brought roughly twenty years after he retired. Consequently, the Fourth Circuit denied the appellant’s petition for review of the ALJ’s judgment. Full Opinion
United States v. Jolon Carthorne, Sr. (Keenan 12/21/2017): The Fourth Circuit held that a criminal defendant’s trial counsel renders ineffective assistance by failing to understand the required legal analysis and by failing to make an obvious objection to the career offender designation, resulting in prejudice to the defendant by increasing his sentence. Furthermore, because the standards for ineffective assistance of counsel and plain error are different, a ruling on plain error does not adjudicate the ineffective assistance of counsel issue. Consequently, the Fourth Circuit vacated the defendant’s sentence and remanded for resentencing. Full Opinion
John Nanni v. Aberdeen Marketplace, Inc. (King 12/21/2017): The Fourth Circuit held that a handicapped plaintiff has standing to bring a civil action against a store for violation of the Americans with Disabilities Act (ADA) when the plaintiff visits the defendant store at least 3 times and asserts that he will return to the store as an “ADA Tester” at some date in the future. The court found that the injury-in-fact requirement of standing had been met because the defendant’s failure to meet the ADA standards subjected the plaintiff to a possible injury. Further, a real and immediate threat of repeated injury existed for the plaintiff, despite living 40 miles away from the shopping center. Finally, the Fourth Circuit concluded that the plaintiff’s status as an “ADA Tester” and his history of litigation did not strip him of standing to pursue his claims. Consequently, the Fourth Circuit vacated the district court’s judgment and remanded for further proceedings. Full Opinion
William O’Hara v. NIKA Technologies, Inc. (Duncan 12/22/2017): The Fourth Circuit held that qualifying whistleblowing activity is protected by the “whistleblower-protection provisions” of the False Claims Act (FCA) even when it is directed at an entity other than the whistleblower’s employer. The National Institute of Standards and Technology (“NIST”) contracted with NIKA Technologies (“NIKA”) for project design and cost-estimating services for a project and hired Northern Taiga Ventures, Inc. (“NTVT”) to perform construction work for the project. O’Hara, an employee of NIKA, found inaccuracies in NTVT reports and reported them to NIST. O’Hara was later terminated after failing to meet deadlines and argued that his termination was done in response to his whistleblowing activity. The district court granted summary judgment for NIKA because it held that the FCA only protects whistleblowing activity directed at the whistleblower’s employer. The Fourth Circuit held that the district court applied the wrong analysis, but still upheld the grant of summary judgment because O’Hara did not disclose any conduct that could lead to a viable FCA action. The Fourth Circuit also affirmed summary judgment on plaintiff’s American Recovery and Reinvestment Act argument on the grounds that NIKA would have fired O’Hara absent any whistleblowing activity. Consequently, the Fourth Circuit affirmed the district court’s judgment. Full Opinion
United States v. Jolon Carthorne, Sr., No 16-6515
Decided: December 21, 2017
The Fourth Circuit held that a criminal defendant’s trial counsel renders ineffective assistance by failing to understand the required legal analysis and by failing to make an obvious objection to the career offender designation, resulting in prejudice to the defendant by increasing his sentence. Furthermore, because the standards for ineffective assistance of counsel and plain error are different, a ruling on plain error does not adjudicate the ineffective assistance of counsel issue. Consequently, the Fourth Circuit vacated the defendant’s sentence and remanded for resentencing.
Jolon Devon Carthorne, Sr. (the “Defendant”), a criminal defendant, pled guilty to possession with intent to distribute cocaine base and possession of a firearm in furtherance of a drug trafficking crime. The Defendant had previously been convicted for assault and battery on a police officer (“ABPO”) when he spit in the officer’s face. Based on that conviction, the Defendant’s probation officer recommended that the Defendant be designated as a career offender. The Defendant’s counsel raised no objection to this, and the Defendant was therefore designated a career offender and sentenced to 300 months’ imprisonment. If an objection had been raised, the Defendant would have served somewhere between 181 and 211 months’ imprisonment.
The Defendant then appealed the district court’s judgment, arguing that he was not a career offender. For the Defendant to qualify as a career offender, his earlier crime of ABPO must have categorically qualified as a crime of violence, and the Defendant argued that his earlier ABPO charge did not categorically qualify as a crime of violence. The Fourth Circuit, in a 2013 decision, reviewed the district court decision for plain error and determined that the district court did not commit plain error. The Fourth Circuit reasoned that existing precedent on the issue of whether an ABPO charge categorically qualified as a crime of violence did not require a different conclusion than what the district court reached and that a circuit split existed on the issue.
The Defendant then filed a motion to vacate his sentence under 28 U.S.C. § 2255 for ineffective assistance of counsel. He argued that his counsel failed to object to his classification as a career offender and that that constituted deficient performance, which resulted in prejudice to him. The district court rejected this argument, concluding that there was no deficient performance because the Fourth Circuit had previously found that there was no plain error on direct appeal.
On the present appeal, the Fourth Circuit held that plain error and ineffective assistance of counsel are two different inquiries that may lead to different results. While they typically serve complementary purposes, the plain error inquiry focuses on correcting egregious errors by the trial court while the ineffective assistance of counsel inquiry focuses more broadly on the duty of counsel to raise critical issues for the court’s consideration. While the plain error rule does not focus on the objective reasonableness of counsel’s performance, ineffective assistance of counsel does.
To prove ineffective assistance of counsel, a defendant must show that: (1) counsel provided deficient performance; and (2) the deficient performance resulted in prejudice to the defendant. In determining whether counsel’s performance was deficient, the performance is judged according to prevailing professional norms or duties. Here, the issue was whether counsel provided deficient performance by failing to raise an objection to the defendant being classified as a career offender. While counsel may have strategic reasons not to object in some instances, ignorance of a point of law on a fundamental issue in a defendant’s case is “a quintessential example of unreasonable performance.” Precedent strongly suggested that ABPO did not qualify as a crime of violence at the date of the trial, and defendant’s counsel had a duty to object to the defendant’s classification as a career offender as a result. This deficient performance prejudiced the defendant as his sentence was at least 89 months longer as a result.
Accordingly, the Fourth Circuit vacated the district court’s judgment and sentence, and remanded for resentencing.
Jonathan D. Todd