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Ashish Sijapati v. Boente (4th Cir, filed 2/1/17), Visa Holders Should Take Care in Travelling Abroad

February 1st, 2017
Elizabeth Franklin-Best

This is another published immigration case out of the Fourth Circuit this week and highlights the dangers of non-citizens travelling abroad while seeking residency in the United States.  Here Sijapati was found to be removable under 8 USC 237(a)(2)(A)(i) because he was convicted on December 12, 2007 of a crime involving moral turpitude that occurred more than five years after he was first admitted to the United States which occurred on January 2

Ihar Sotnikau v. Lynch (4th Cir., filed 1/24/17), Involuntary Manslaughter NOT a Crime of Moral Turpitude re: Removal Proceedings. Also, Appreciate How the Rule of Law Protects Immigrants in Practice.

January 30th, 2017
Elizabeth Franklin-Best

Sotnikau, a native of Belarus, was a lawful permanent resident of the US.  He was subjected to a removal proceeding because authorities decided that his conviction, for involuntary manslaughter, was a crime of "moral turpitude."  He sought asylum, withholding of removal, and protection under the Convention Against Torture ("CAT").  After various hearings, he lost these claims, the lower courts finding that involuntary manslaughter, under Virgi

US v. Kofi Agyekum, No. 15-4479 (4th Cir, filed 1/24/17), Disagreement on Enhancement Based on Abuse of Position of Trust

January 25th, 2017
Elizabeth Franklin-Best

Mr. Agyekum found himself in a whole bunch of trouble due to his criminal plan to illegally sell oxycodone pills out of his pharmacy in West Virginia.  In addition to simply illegally filling fraudulent prescriptions, he also fudged his bank deposits to hide this activity (by making a number of deposits at a level below $10,000 which triggers certain federal notice provisions).  Much of this opinion details the sp

US v. Robinson (4th Cir. 2017) (en banc) (filed 1/23/17) — Liberal gun carry laws do not impact police authority to conduct stop and frisks.

January 23rd, 2017
Elizabeth Franklin-Best

The full court took up this case which initially had been decided by a three judge panel in United States v. Robinson, No. 14-4902 (filed February 23, 2016).  The dissent in that opinion, Judge Niemeyer, wrote the majority opinion for the en banc decision.   The question here is:

Whether a law enforcement officer is justified in frisking a person whom the officer has lawfully stopped and whom the officer reasonably believ

State v. Zuber (A-54-15, A-63-15) (filed 1/11/17) New Jersey Supreme Court finds “functional equivalent” of Life sentence violates Graham and Miller.

January 13th, 2017
Elizabeth Franklin-Best

Another state gets on board with this unanimous opinion (following in the footsteps of California, Ohio, Florida, Louisiana, Iowa, Wyoming, Connecticut, and Illinois) and holds that an inmate's sentence of 110 years with 55 years of parole ineligibility, imposed on him for crimes committed when he was 17, violates Graham v. Florida, 560 U.S. 48 (2010) and Miller v. Alabama, 567 U.S. __, 132 S. Ct. 2455(2012). The New Jersey Sup

United States v. Brandon Tate (4th Cir. 2017, filed 1/11/17): District court’s job to determine “applicable Guideline range” not the Gov’t’s.

January 12th, 2017
Elizabeth Franklin-Best

So, Mr. Tate raises a breach of plea agreement issue.  He agreed to plead guilty to some drug charges and the Government agreed in the plea agreement to "seek a sentence at the lowest end of and either party may seek a departure or variance from the 'applicable guideline range.'  Tate also agreed to waive his "rights to contest the conviction except for: 1) claims of ineffective assistance of counsel or 2) prosecutorial misconduct." Tate disag

State v. Cain, Appellate Case No. 2015-001983– Excellent SCSCt Win in “Theoretical Weight” Drug Trafficking Case (filed January 5, 2017)

January 9th, 2017
Elizabeth Franklin-Best

This is an excellent result for Mr. Cain, but practitioners need to beware because the Court offers guidance on how these cases can be prosecuted in the future without running into the problem here that necessitated the reversal. The facts are straightforward-- law enforcement searched a house where Cain was present. They did not find any methamphetamine, but they did find a number of precursors, including packages of Sudafed.  The State relied

Ramirez v. State, Appellate Case No. 2015-002063 (filed 1/5/17), SC Supreme Court Clarifies Law for Incompetent Guilty Plea

January 6th, 2017
Elizabeth Franklin-Best

The petitioner here is severely intellectually disabled.  His plea counsel failed to request an independent competency evaluation prior to his guilty plea.  Initially, the PCR judge denied relief.  The South Carolina Court of Appeals disagreed and found that trial counsel was ineffective but denied relief finding itself constrained under the "any evidence" standard that typically applies when the appellate courts review a PCR judge's findings

Happy New Year from the Ohio Supreme Court! Mandatory Waiver Provisions for Kids to Adult Court Violates the Constitution (State v. Aalim, Slip Op. No. 2016-Ohio-8278). Time to fix this injustice in SC, too!

January 3rd, 2017
Elizabeth Franklin-Best

Time to make this happen in South Carolina, too!  One feature of the insidious School to Prison Pipeline is that, pursuant to statutes like the one we have in South Carolina, see below, kids who are charged with certain felonies are automatically waived up to Big People Court.  That is, they’re treated like adults, even though they’re still obviously children.  The Ohio Supreme Court, in an opinion issued December 22, 2016, has found those

Cruz v. Marshall, App. No. 15-6130 (filed 12/19/16), Unpublished 4th Circuit HABEAS REMAND

December 29th, 2016
Elizabeth Franklin-Best

Excellent work by the Appellate Litigation Project, Georgetown University Law Center!  Cruz, a habeas petitioner, filed a petition alleging 5 grounds of relief.  The State moved to dismiss the petition as untimely.  The magistrate court recommended granting the State’s motion.  Cruz then filed objections to the Report and Recommendation (R&R), and the district court summarily rejected those objections, adopted the recommendation, and di

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