The Heck bar to § 1983 relief doesn’t apply if the plaintiff loses his habeas remedy because of release without a decision on the merits. Here, he pled to a lesser, but that may not bar the claim. Poventud v. City of New York, 2013 U.S. App. LEXIS 7851 (2d Cir. April 19, 2013):
Since Jenkins and Leather, we have repeatedly affirmed that Heck's favorable-termination requirement applies only to plaintiffs who are in custody, and that all other claimants—those who have no remedy in habeas—may pursue their claims under § 1983. See McKithen v. Brown, 481 F.3d 89, 101 (2d Cir. 2007) ("Over time, [Heck's] implicit exception [to § 1983's otherwise broad coverage] has been carefully circumscribed."); Huang ex rel. Yu v. Johnson, 251 F.3d 65, 75 (2d Cir. 2001) ("In light of our holding in Leather, and in light of ... the fact that the Spencer concurrences and dissent 'revealed that five justices hold the view that, where federal habeas corpus is not available to address constitutional wrongs, § 1983 must be,' we conclude that Huang's Section 1983 claim must be allowed to proceed.") (quoting Jenkins, 179 F.3d at 26); Green v. Montgomery, 219 F.3d 52, 60 n.3 (2d Cir. 2000) ("We have held ... that Heck acts only to bar § 1983 suits when the plaintiff has a habeas corpus remedy available to him (i.e., when he is in state custody). Because it does not appear that Green is presently in state custody, his § 1983 action is not barred by Heck." (internal citations omitted)).
The facts in this case differ somewhat from the facts in the cases just cited, but not in a way that is material to the issue before us. After Poventud's original conviction was vacated, but before that vacatur was affirmed on appeal, Poventud pled guilty to a lesser, related offense.2 This fact, however, does not alter the underlying principle that a claimant who cannot seek relief under habeas must be able to seek it under § 1983. Poventud's guilty plea may (or may not) supply defendants with a defense that no § 1983 violation occurred. But it does not entitle them to summary judgment under Heck.
CA2: Heck bar doesn't necessarily apply if plaintiff released from custody
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Treatment over jail for drug use
The Denver Post Editorial
Treatment over jail for drug use
Changing
Colorado's drug sentencing laws to encourage treatment over
incarceration for low-level users is an enlightened way to take on the
destructive force of addiction.
We hope the Colorado legislature passes a bill that would broadly revise the state's drug sentencing structure.
But it isn't just the content of this bill that
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IA: Parole search provision not true consent based under state constitution
Iowa concludes that a parole agreement with a consent provision is not true consent under the state constitution. The case has a complete analysis of consent of probationers v. parolees and concludes there is no bargaining power for the parolee. [Not that anybody truly has that much bargaining power.] State v. Baldon, 2013 Iowa Sup. LEXIS 42 (April 19, 2013):
[...] Read more!
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Google Glass and the future of privacy
With the expected public release of Google Glass later this year, we must all be wondering about the product's potential effects on privacy. It will be worn similarly to eyeglasses and will provide users with picture, message, and navigation capabilities - just to mention a few.
Jan Chipchase, Executive Creative Director of Global Insights at Frog Design recently wrote about the privacy considerations with technologies like Google Glass:
As a product that is both on-your-face and in-your-face, Glass is set to become a lightning rod for a wider discussion around what constitutes acceptable behavior in public and private spaces. The Glass debate has already started, but these are early days; each new iteration of hardware and functionality will trigger fresh convulsions. In the short term, Glass will trigger anger, name-calling, ridicule and the occasional bucket of thrown water (whether it’s ice water, I don’t know). In the medium term, as societal interaction with the product broadens, signs will appear in public spaces guiding mis/use and lawsuits will fly, while over the longer term, legislation will create boundaries that reflect some form of im/balance between individual, corporate and societal wants, needs and concerns.
Read similar articles from CNNTech, The Guardian, and TechNewsWorld.↧
CAAF: NCOs could enter off base housing airman appeared to have abandoned
Defendant was an airman who was believed by his landlord to have skipped out on rent and abandoned the premises. He wasn’t around and couldn’t be found. The landlord entered and found it needed a lot of repairs and appeared abandoned. He called defendant’s NCOs who came to the apartment as Air Force representatives to the community to see what was going on. The landlord unquestionably had a right of entry under the lease, and this extended to making the NCOs his “representative.” They did not enter for any regulatory or law enforcement function. In the apartment, they found a piece of a B-1 bomber that was missing from the air base. The entry was valid. United States v. Irizarry, 2013 CAAF LEXIS 383 (C.A. A.F. April 15, 2013):
[...] Read more!
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Man wanted for Lafayette woman's death to be extradited from Pennsylvania
A 43-year-old Youngsville man who is wanted in connection with the death of a 29-year-old Lafayette woman will be returned to Lafayette Parish from Pennsylvania, where he was recently apprehended, a representative of his said Friday. The man is facing...
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Controlled Substances # 3: Measuring Culpability by Measuring Drugs?
Alex Kreit, guest-blogging on his new casebook, Controlled Substances: Crime, Regulation, and Policy (Carolina 2013): The drug sentencing chapter in my casebook involved a bit of a balancing act. Students need to have some understanding of foundational sentencing principles in...
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What will happen when I’m charged with felony possession distribution of a schedule 2 drug?
Free legal answers from attorneys - I was charged with felony possession distribution of a schedule 2 drug. I have a prescription for it. I did not sell an
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Five Common Misconceptions made by First Time DUI Offenders
For many of the people I meet, a DUI is their first run-in with the law. Most of the people accused are not hardened criminals or gang bangers. A lot of them are common folk who made a bad decision. Because of their lack of experience in dealing with criminal proceedings, people often make the [...]
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Celebrating 10 Years of Community Service on Earth Day
The following post appears courtesy of Assistant Attorney General for the Environment and Natural Resources Division Ignacia S. Moreno. For the 10th consecutive year, employees, family, and friends of the Justice Department’s Environment and Natural Resources Division (ENRD) have participated in a community service project in celebration of Earth Day at the Marvin Gaye Park [...]
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Interrogating Tsarnaev
Dzhokhar Tsarnaev has been arrested in connection with the Boston Marathon bombings. CNN reports that he “lies in a hospital with a gunshot wound to the side of his neck, sedated and intubated,” but that he could be put on a “sedation holiday” and brought back to consciousness to be questioned. This raises several issues. [...]
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Judge Sturns on Ken Anderson
A reader forwarded me a copy of Friday's ruling by Judge Louis Sturns against Judge Ken Anderson from the Michael Morton court of inquiry. Here's the link for those interested in reading the whole thing and a few related news stories for more background:Associated Press: Texas official faces charges in man's prosecutionAustin Statesman: Statute of limitations first hurdle in misconduct charges against former DAYNN-Austin: Warrant issued for prosecutorial misconduct, Judge Anderson turns himself in to Wilco JailHouston Chronicle: A big step for justice in Texas (editorial)
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Federal Grand Jury Indicted former Agriculture Commissioner Richie Farmer Alleging Misappropriating State Funds and Solicitation
timesunion.com on April 22, 2013 released the following: “Farmer indicted on felony fraud charges ROGER ALFORD, Associated Press, By ROGER ALFORD and BRETT BARROUQUERE, Associated Press LEXINGTON, Ky. (AP) — A federal grand jury has indicted former Agriculture Commissioner Richie Farmer on four felony counts of misappropriating state funds and one of solicitation. The indictment [...]![]()
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Florida Man’s Charge of Possessing a Firearm as a Convicted Felon Dismissed
Carl Williams Hurst, 44, of West Palm Beach, Fl., had the charge against him for possessing a firearm as a convicted felon dismissed. Hurst, like many throughout Florida, are arrested and charged without enough properly obtained evidence to prove guilt. Because of this lack of evidence, the State must rightfully have the case against the accused dismissed, for lack of sufficient evidence.
In Jacksonville, there are many who have been convicted of felonies and have since changed their ways, served their time, and have moved on and reentered society. Some wish to obtain and possess firearms for their own protection and the protection of their family. However, possession of a firearm by a convicted felon is itself a felony. In Florida, the crime is significantly harsh, the ultimate sentence for the crime determined by whether the person actually possessed the firearm or constructively possessed the firearm. ![imagesgunc.jpg]()
Actual Possession of a Firearm by a Convicted Felon, carrying a three-year minimum-mandatory prison sentence occurs if the firearm is:
- Close as to be within ready reach and is under the control of the person,
- In the hand of or on the person, or
- In a container in the hand of or on the person.
Constructive possession, however, occurs if the firearm is in a place over which the accused person has control, or in which the accused person has concealed it.
The U.S. Court of Appeals for the 3rd Circuit has ruled that possession of a firearm by a convicted felon is not a crime of violence under the Bail Reform Act. Furthermore, there must be evidence that one intended to possess the weapon. The following demonstrates a situation where what might seem like intent to the State, simply is not beyond a reasonable doubt: Two homeless felons are sleeping in an abandoned house in Jacksonville. A police officer receives a call for a noise coming from the abandoned house and investigates. Upon arrival, the officer sees both homeless felons sleeping, one with a gun two feet from his side on the floor, the other with a gun on the table next to him. In this case, the officer would arrest both felons for trespassing, run their record and find that they are felons. Most of the time when law enforcement and the State Attorney sees a situation like this, they charge possession a firearm by a convicted felon in Jacksonville.
However, just because a gun is near a felon, that does not necessitate that the felon intended to possess it. Recently, a felon in possession charge was thrown out by the U.S. Court of Appeals for the 9th Circuit because, although the defendant was found sleeping with one gun on his lap and another leaning against his leg, the house they were in was essentially open to the public and someone else could have placed the guns there.
In the hypothetical above, if the two felons obtained an experienced attorney, the truthfulness of the matter would be shown: in this case, the two felons could not have control over the house, as they were asleep, they could not be proven to have placed the guns there themselves, regardless of whether their fingerprints are on the weapon or not, because fingerprints cannot be scientifically dated.
Sometimes, in cases of police misconduct, when the officer has physically abused the arrestee, whether felon or non-felon, the officer will trump up the charges adding that one was in possession of a weapon or that one was in possession of drugs. Officers all over the nation have been found adding fabricated or false evidence to police stops, making a chargeable crime where none existed before. For some, the act is placing drugs in a suspect’s clothing pocket; for others, the act has been intricate plans of fingerprint planting or evidence of another’s wrongdoing being destroyed. Whatever the reason, one must not always assume that the charges are proper, or that the “evidence” supposedly there to convict, is actually valid.
In these sorts of situations, felons will be facing major sentences for relatively minor offenses that fall under the felony category. The light at the end of the tunnel can seem dim or non-existent. If one obtains an experienced Jacksonville gun crimes defense attorney to mount the best defense possible to one’s case, one will have a better chance of making it out of the tunnel with hope for the future, putting the gun charge in the past.
The only logical choice in this situation is to fight the charge. One needs a knowledgeable and experienced attorney to fight the case. Don’t allow your life to be ruined by a gun crime charge. Defend yourself.
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Actual Possession of a Firearm by a Convicted Felon, carrying a three-year minimum-mandatory prison sentence occurs if the firearm is:
- Close as to be within ready reach and is under the control of the person,
- In the hand of or on the person, or
- In a container in the hand of or on the person.
Constructive possession, however, occurs if the firearm is in a place over which the accused person has control, or in which the accused person has concealed it.
The U.S. Court of Appeals for the 3rd Circuit has ruled that possession of a firearm by a convicted felon is not a crime of violence under the Bail Reform Act. Furthermore, there must be evidence that one intended to possess the weapon. The following demonstrates a situation where what might seem like intent to the State, simply is not beyond a reasonable doubt: Two homeless felons are sleeping in an abandoned house in Jacksonville. A police officer receives a call for a noise coming from the abandoned house and investigates. Upon arrival, the officer sees both homeless felons sleeping, one with a gun two feet from his side on the floor, the other with a gun on the table next to him. In this case, the officer would arrest both felons for trespassing, run their record and find that they are felons. Most of the time when law enforcement and the State Attorney sees a situation like this, they charge possession a firearm by a convicted felon in Jacksonville.
However, just because a gun is near a felon, that does not necessitate that the felon intended to possess it. Recently, a felon in possession charge was thrown out by the U.S. Court of Appeals for the 9th Circuit because, although the defendant was found sleeping with one gun on his lap and another leaning against his leg, the house they were in was essentially open to the public and someone else could have placed the guns there.
In the hypothetical above, if the two felons obtained an experienced attorney, the truthfulness of the matter would be shown: in this case, the two felons could not have control over the house, as they were asleep, they could not be proven to have placed the guns there themselves, regardless of whether their fingerprints are on the weapon or not, because fingerprints cannot be scientifically dated.
Sometimes, in cases of police misconduct, when the officer has physically abused the arrestee, whether felon or non-felon, the officer will trump up the charges adding that one was in possession of a weapon or that one was in possession of drugs. Officers all over the nation have been found adding fabricated or false evidence to police stops, making a chargeable crime where none existed before. For some, the act is placing drugs in a suspect’s clothing pocket; for others, the act has been intricate plans of fingerprint planting or evidence of another’s wrongdoing being destroyed. Whatever the reason, one must not always assume that the charges are proper, or that the “evidence” supposedly there to convict, is actually valid.
In these sorts of situations, felons will be facing major sentences for relatively minor offenses that fall under the felony category. The light at the end of the tunnel can seem dim or non-existent. If one obtains an experienced Jacksonville gun crimes defense attorney to mount the best defense possible to one’s case, one will have a better chance of making it out of the tunnel with hope for the future, putting the gun charge in the past.
The only logical choice in this situation is to fight the charge. One needs a knowledgeable and experienced attorney to fight the case. Don’t allow your life to be ruined by a gun crime charge. Defend yourself.
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By the Numbers: Homegrown Muslim-American Attacks Decline
Don't listen to the Doogie Howsers of terrorism -- the self-proclaimed experts who learned their trade on the internet and because their views fit the government's agenda, were able to parlay it into a career of testifying against suspects...
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The Cable News' Instant Experts on Chechnya
Recommended reading: 10 Essential Points about the Boston Marathon bombers, Islam, and America
Chechnya is a fairly remote region. There are few people on TV with actual expertise about Chechnya. Most of these “instant experts” go...
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Reflections on Boston
ReutersLegal Posts, "Prosecutors face tough call on death penalty in Boston case." It's by Jessica Dye. Federal prosecutors may seek the death penalty for the surviving suspect in the Boston Marathon bombings, legal experts said on Sunday, though they cautioned...
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INDIVIDUAL PRIVACY VERSUS CELLPHONE PINGING
Pinging is part of the technology that makes a cell phone work. In very simple terms, it allows the cell phone company, and anyone with access to the company’s computers, to determine the location of a cell phone using the phone’s GPS capabilities by sending a “ping” to the phone. Pinging has also been called “GPS in reverse” because it allows wireless cellphone carriers like AT&T or Sprint to locate and track a particular cellphone. It can be a great technology when used in the right hands. For example, it allows emergency 911 systems to automatically transfer a caller’s location and other information in order to provide assistance to a distressed person.
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1980′s “lock em all up let god sort em out policy”
In the mid 1980s there were several high profile sex cases in the news involving child care and children in general (most notably an entire town in Washington state had their kids taken due to these charges) in the news [...]
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was my charge 100% correct?
Bank robbery, I went into a bank with a note. My exact words on the note were this is a robbery please put 10,000 in this bag and I passed the bag through window. I did not threaten anyone nor did [...]
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