Week Nine

Week of February 27, 2017 through March 3, 2017

In Re: William Robert Gray, Jr., (Gregory 2/28/2017): The Fourth Circuit found Gray’s § 2254 petition challenging his conviction for first-degree murder was his first petition to challenge the new judgment and was not within the meaning of a second or successive motion within 28 U.S.C. § 2244(b) because his resentence was a new judgment and the petition was the first challenge to the new judgment. The court denied Gray’s motion for leave to file a second or successive § 2254 petition and directed the district court to consider Gray’s second-in-time § 2254 petition as the first challenge to the new judgment. Full Opinion

Wann Robinson v. Jason Worley (Wilkinson 2/28/2017): The Fourth Circuit held that the undervaluation of an asset was a false oath when the debtor had a significant level of training and experience with valuation methods. The court further concluded denial of discharge was appropriate because the asset was material to the estate and the undervaluation of the debtor’s interest “sent a message” to not conduct any additional investigation into the asset. The court affirmed the judgment of the United States District Court for the Middle District of North Carolina at Greensboro. Full Opinion

Lord & Taylor, LLC v. White Flint, L.P. (Harris 2/28/2017): The Fourth Circuit held that the testimony on construction costs was properly admitted as lay opinion testimony because the testimony was drawn from on-the-job experience and knowledge. The court further concluded the award was reasonable when it was consistent with both the estimate of construction costs or the estimate of lost profits. The court affirmed the judgment of the United States District Court for the District of Maryland at Greenbelt. Full Opinion

Winfred Muchira v. Halah Al-Rawaf (Traxler 3/2/2017): The Fourth Circuit held that long work hours, cultural “house rules” and verbal reprimands were not considered forced labor by means of serious psychological harm. The court affirmed the judgment of the United States District Court for the Eastern District of Virginia at Alexandria. Full Opinion

Blue Cross Blue Shield of NC v. Jemsek Clinic, P.A. (Motz 3/3/2017):  The Fourth Circuit held dismissal without prejudice was not warranted because litigants do not have a duty to prevent their opponents from losing their claims or help them maximize their recovery. The Court also concluded the severe sanction of dismissal without prejudice was not warranted even though Blue Cross Blue Shield of NC failed to inform the Bankruptcy Court of the injunction. The court vacated and remanded the judgment of the United States District Court for the Western District of North Carolina at Charlotte. . Full Opinion

 

Highlight Case:

United States of America v. Marvin Wilbert Powell, No. 15-6232

Decided: March 1, 2017

The Fourth Circuit affirmed the United States District Court for the Eastern District of North Carolina at Raleigh.

Powell was charged and convicted of possession of a firearm during and in relation to a drug trafficking crime, possession of a firearm after having been convicted of a felony, possession with intent to distribute 50 grams or more of cocaine base and a quantity of cocaine, possession with the intent to distribute marijuana and conspiracy to possession with intent to distribute more than 50 grams of cocaine base and a quantity of cocaine after a three day trial. He was then sentenced to 300 months’ imprisonment. The Fourth Circuit affirmed Powell’s conviction and sentence but the Supreme Court vacated the Fourth Circuit’s judgment and remanded for further consideration. The district court resentenced Powell to 300 months imprisonment.

Powell filed a motion under 28 U.S.C. § 2255 to vacate his conviction and sentence based on ineffective assistance of counsel; therefore, violating his Sixth Amendment right to counsel. He alleged his counsel was ineffective because she did not inform the trial court that a juror spoke with Powell’s father and told him he should “give his son ‘a good kick in the butt.’” Powell argued the juror demonstrated bias against Powell and Powell’s counsel should have informed the trial judge of this conversation so that the trial judge could follow up with the juror. The district court denied Powell’s § 2255 motion because he failed to allege an ineffective-assistance claim. Powell appealed.

On appeal, Powell argued that his counsel’s failure to disclose the juror’s comment “prevented the court from asking the juror about the incident and assessing her ability to determine guilty or innocence based solely on the evidence.” This failure violated his Sixth Amendment right to counsel because counsel’s performance was deficient. The government argued that the juror’s statement would not have warranted the juror’s removal so Powell’s counsel’s assistance was not ineffective. Powell must prove that “‘[his] counsel’s performance was deficient’” and “‘ that the deficient performance prejudiced the defense’” in order to prove a violation of his Sixth Amendment right to counsel. Strickland v. Washington, 466 U.S. 668, 687 (1984). Powell must show that his counsel’s performance was below the “‘objective standard of reasonableness.’” Id. at 688.

The Fourth Circuit concluded that Powell’s counsel could have concluded that not informing the trial court about the juror’s statement was in the best interest of Powell because the comment was ambiguous. The Court noted Powell and his father’s reaction to the comment and that they were not immediately concerned that the statement could indicate “‘a clear and unmistakable bias against’ Powell.” The Court concluded that Powell’s counsel was not sure of the significance of the juror’s comment and that counsel could have reported it to the trial court. However, the failure to report the comment did not render her assistance constitutionally deficient. Therefore, the court concluded Powell failed to satisfy the ineffective-assistance presumption that counsel’s decision not to report the comment fell “‘within the wide range of reasonable professional assistance.’”

Accordingly, the Fourth Circuit affirmed the decision of the District Court for the Eastern District of North Carolina at Raleigh.

Full Opinion

Alicia E. Morris

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