Legal Opinions

 14th Court of Appeals

On October 16, 2012 in a published opinion in Manley Dewayne Johnson v. State of Texas , Case No. 14-11-00693 the court of appeals found that Harris County does not comply with CCP 103.001 by failing to create a bill of costs in each case.  This means if a judgment lists the court costs, but there is no evidence in the record to support those costs, then no costs are owed. The decision is very important to inmates because these costs total many hundreds of dollars and are garnished by TDCJ from commissary funds, or they become owed as conditions of probation. This issue does not have to be raised at trial to preserve it for appeal, it can be raised at any time.

 

United States Supreme Court Decisions 2011:

The Supreme Court of the United States in April 2011 in Schwarzenegger v. Plata #09-1233 ruled the California penal system is overcrowded to the point that it is in violation of the Constitution of the United States . Unfortunately for inmates in California , the Supreme Court has allowed the State of California two additional years in which to rectify this matter and submit their new plan to the court. Presently, the California Legislature is proposing instead of releasing inmates back to society the California Legislature is considering placing inmates in county facilities to serve out their sentences. At this time there is no decision by the California Legislature as to how they will comply with this ruling. At the present time there is no lawsuit filed in the State of Texas alleging the present prison system in the State of Texas is so overcrowded as to be in violation of the Constitution. Should this ever occur it will take approximately 8 to 10 years before it is litigated to the Supreme Court of the United States , so I would not recommend any inmate start a rumor regarding the Texas prison system being required to release any inmates. If you hear of such a rumor you have now been informed it is false.

5th Circuit 2011

Rules in Ex Parte Coleman and Ex Parte Mesa:

The Federal Courts have ruled inmates who are not charged with a crime that is per se a sexual crime must have a hearing in which the state must prove by a preponderance of the evidence there is a need to place Special Condition X on the inmates parole certificate or to require him to register as a sex offender. It appears the Parole Board will be granting these hearings not only to offenders who are subject to being released on parole, but to those parolees who were released to parole or mandatory or discretionary mandatory supervision and these conditions were placed on them without allowing them to have a Coleman/Mesa Hearing previously. This was also reiterated in Ex Parte Evans by the Court of Criminal Appeals of the State of Texas . Both of these rulings indicate the inmate will have to retain counsel since no attorneys will be appointed to represent the inmate in these matters and these conditions cannot be placed on an inmate prior to such a hearing. Recently a Federal Court in Houston issued an order to that effect for one of my clients. It is my understanding the Parole Board and TDCJ is in the process of training these hearing officers in setting up policies and procedures for these type of hearings. As October 2011 these policies and procedures have not been published.

5th Circuit:
Court Rules – Former Inmate Can Sue Texas Officials For Rights Violations:

The 5th Circuit Court of Appeals unanimously ruled Roderick Johnson, a former Texas inmate, who alleges prison officials deliberately denied him protection from prison gang members, who repeatedly raped, assaulted, and threatened him with violence and death, can move ahead with this lawsuit against the prison officials. The prison officials had argued they could not be sued because they were acting as public employees and had no reason to believe they were violating Johnson’s Constitutional rights. However, the appeals court ruled it is the responsibility of prison officials to protect inmates from violence at the hands of fellow prisoners. Johnson is represented by the American Civil Liberties Union lawyers.

Court Rules – A Life Sentence in Texas Can Be Life There is No Mandatory Release on Life Sentence:

Fifth Circuit Court of Appeals on October 2, 2002, 306 F.3rd 277 Arnold v. Cockrell stated “it is mathematically impossible to determine a mandatory supervision release date on a life sentence because the calendar time served plus any accrued good conduct time will never add up to life.” While this does not address the arguments presented in the Galveston cases it reflects the way the 5th Circuit will probably rule when it addresses the Galveston cases. This ruling indicates a life sentence can and will be just that, life in prison, unless the inmate, through his attorney, convinces the Board to release the inmate to parole. This also means when a person is at the trial stage, the trial attorney had better know the laws and the evidence of the case he is representing a client on. The risk of receiving a life sentence is now more than a threat. A good, competent trial attorney is crucial, especially with the rulings from the Court of Criminal Appeals of Texas on the harmless error doctrine.

In Ex Parte Lloyd Edward Franks, No. 74,123, delivered on December 19, 2001 the court ruled in Article 42.12, Section 15(c),V.A.C.C.P., which stated “shall be released to mandatory supervision when the calendar time served plus any accrued good conduct time equals the maximum term to which he was sentenced.” It was noted that this law had not substantively changed since 1981. They ruled “under a literal reading of this law, it is mathematically impossible to determine a mandatory supervision release date on a life sentence because the calendar time served plus any accrued good conduct time will never add up to life.” Therefore, at the present time any inmate who has received a sentence greater than 60 years or life, the inmates only hope is to be released by the parole board. For those inmates serving a life sentence, hiring a very good parole attorney to enhance probability of release should be a very serious consideration.

TDCJ Can Make Inmates Work for Free

The 5th Circuit Court of Appeals on July 7, 2006 in Loving v. Johnson quickly disposed of the argument prisoners should be paid minimum wage for working in prison under the Fair Labor Standards Act (FLSA).” People are not imprisoned for the purpose of enabling them to earn a living. The prison pays for their keep. If it puts them to work, it is to offset some of the costs of keeping them.”

United States Supreme Court:

In United States v. Booker and United States v. Fanfan in a very unusual opinion, the Supreme Court ruled the 1987 Federal Sentencing Guidelines were no longer mandatory, but merely advisory, though they recommended the courts attempt to follow the guidelines. In a second part of the opinion the court ruled that judges could not increase the sentence imposed on the defendant based on certain factors, unless those factors are weighed by a jury. This is a major case in criminal law, especially to defendants who may have pending federal cases. Now I and other attorneys who practice before the federal trial courts, will be able to argue and possibly receive considerably less time for their clients than would have been possible under the 1987 Federal Sentencing Guideline.

The Supreme Court of the United States in Samson v. California Decided June 19, 2006 held The Fourth Amendment does not prohibit a police officer from conducting a suspicionless search of a parolee. In other words if a police officer wants to stop a parolee and search him for no reason this is permissable.

Texas Courts:

Time to File Information with Parole Board on Discretionary Mandatory Review

Ex parte Thomas Christopher Retzlaff, No 74,772 March 3, 2004 – The Court of Criminal Appeals of Texas ruled that a person who is given notice for release to discretionary mandatory supervision at some unspecified time was not given timely notice consistent with due process. The ruling came about due to the discretionary supervision statute which requires release unless the parole panel makes two specific findings (1) the inmate’s accrued good conduct time is not an accurate reflection of the inmate’s potential for rehabilitation; and (2) the inmate’s release would endanger the public. Under the current provision, an inmate who is eligible for release on discretionary mandatory supervision will be released unless the parole panel makes these two specific findings. Given the workings of the statue, an eligible inmate has a vested, statutory entitlement to release on discretionary mandatory supervision, but it is a defeasible interest (one that may be defeated), but only if the parole panel makes these findings in its review. Timely notice to the inmate that he/she will be reviewed for discretionary mandatory release gives him/her the opportunity to provide evidence. To be effective, this notice must be given sufficiently in advance of the discretionary mandatory supervision release review date to allow the inmate to prepare and submit any such information. It is my belief, according to this ruling, all inmates who were denied discretionary mandatory release and have evidence to submit to the Parole Board would be allowed to re-open their case.

The question the court ruled on was a person who is given notice for release to discretionary mandatory supervision at some unspecified time was given timely notice consistent with due process? The court held it did not. It ruled because the discretionary supervision statute requires release unless the parole panel makes specific findings. The court ruled incarceration is illegal and unconstitutional unless within 60 days the panel has a hearing with timely notice at least 30 days in advance of the hearing to submit whatever material the inmate wishes or the inmate will be released. This is a major ruling establishing the panel to hear the DMS on a date certain instead of some vague date within 6 months of the established date. This ruling may allow inmates to reopen parole hearing when the board voted prior to the inmate submitting information on the inmates behalf.

2nd Time Around is a Charm

Ex parte: Retzlaff, 135 S.W.3d 45 (Tex.Cr.App. 2004) this is the second time Mr. Retzlaff has had to file a writ regarding what is sufficient notice on discretionary mandatory reviews. The court ruled there is a liberty interest in discretionary mandatory review procedures and the parole panel must justify non-release to the two statutory findings of (1)The inmate’s occluded good time to time is not an accurate reflection of the inmate’s potential for rehabilitation; (2) The inmate’s release would endanger the public. Because of this ruling on August 20, 2004, the Parole Board instituted the following rules: the inmate shall receive notice of the pending discretionary mandatory supervision review no later than the 75thday prior to the offenders projected release date, the notice shall advise the inmate of the designated review and allow for a minimum of 30 days for the offender to submit information he wishes the parole panel to consider ; any information submitted by the offender must be submitted in writing and received by the parole division by the 45th day prior to the offender’s projected release date. There is some interesting language contained in this opinion which indicates if this is not done correctly, the inmate must be released whether he has received a vote are not. This wording in the opinion is affecting those individuals who have been retained in the county for a time in excess of the discretionary mandatory review date.

Inmates Have the Right to Rely on Notice of Specific Date on Discretionary Mandatory Review

The Court of Criminal Appeals in Ex Parte Schook, No. 74-085, delivered on November 24, 2001, an opinion regarding a discretionary mandatory review hearing stating “the court holds that when the Board gives the inmate notice of a specific date on which the hearing is scheduled to take place, the inmate is entitled to rely on that information and accordingly has until that day to submit relevant information on his behalf. If the Board holds the hearing for such consideration on a date earlier than the specific date the inmate had been notified the hearing would take place, then the inmate has been misled by the notice and denied the full opportunity he was told he would have to submit relevant information to the Board. The parole board should again consider the applicant for mandatory release and provide him with the timely notice that such consideration will occur.”

Court Rules – Must Give Inmate Hearing Prior to Imposing Sex Offender Registration:

Tony Ray Coleman v Doug Dretke the court ruled the parole panel’s imposition of sex offender registration and therapy as conditions to his parole, without providing Mr. Coleman the opportunity to contest a sex offender status, violated his right to due process. The Texas Department of Criminal Justice is authorized by Texas law to impose reasonable conditions on parolees to serve the interest of protecting the community and rehabilitating the parolee. When those conditions impact a liberty interest of the parolee they may be imposed only with justification. The Department may condition Coleman’s parole on sex offender registration and therapy only if he is determined to constitute a threat to society by reason of his lack of sexual control. Absent a conviction of a sex offense, the Department must afford him an appropriate hearing and find that he possesses this offense of characteristic before imposing such condition. I would strongly recommend inmates who have no sex conviction, not waive their right to a hearing. Such waiver may allow the parole board to set any condition they would like without having to give the inmate the due process right to contest the parole board’s perceptions of the inmate.

State Can Now Appeal Adverse Rulings:

STATE v. MEDRANO
Overrules Robert v. State, allows the State of Texas to appeal any adverse decisions made by the trial court. Under Robert v. State, 940 SW2d 655, the State may not appeal pretrial evidentiary decisions unless the trial court has ruled that the evidence was “illegally obtained.” A standard that would not be met if the ruling was based on a comparison of probative value and prejudicial effect. This case therefore, overruled Roberts and the state is no longer limited solely to pretrial rulings that suppress “illegally obtained” evidence.

Defendant Waives Right to Appeal Can Not Then Appeal Later:

Price v. State, 05-01-00067-CR, 01/28/02 D plead guilty to charges of aggravated assault and murder as part of a plea agreement which included as a component a provision that D waived the right to appeal. The court held when a defendant has bargained for a sentence recommendation or from the prosecution in exchange for a waiver of the right to appeal, the accused should be held to this bargain.

Court Has Jurisdiction Over DNA:

Kutzner v. State of Texas, when convicting trial court declined to order DNA testing of two hairs and fingernail scrapings recovered form the murder victim, Kutzner appealed to the CCA. CCA held that it does indeed have jurisdiction over DNA testing claims under Chapter 64 of the Code of Criminal Procedure.

State Must Give Exculpatory Evidence to Defense

Ex Parte, Richardson No. 74-221, 3/13/2002, because the credibility of the State’s only eyewitness was a crucial issue in the applicants trial, the State has an affirmative constitutional duty under Brady v. Maryland to disclose material evidence that impeached testimony.

What The Judge Says is What You Get

Ex Parte Madding, No. 74-082 3/6/2002

In a post-conviction writ of habeas corpus, the applicant was convicted of burglary of a building and sentenced to 17 years imprisonment. He claims a constitutional double jeopardy violation when the trial court pronounced in open court his sentence would be served concurrently with another case in Greggs County, but the judgement signed 52 days later ordered this sentence to be served consecutively. Ruling was granted stating once applicant was removed from the courtroom and began serving his sentence, it was too late to cumulate the sentence just imposed with an earlier one. A trial court does not have the statutory authority or discretion to orally pronounce one sentence in front of the defendant, but enter a different sentence in his written judgement, outside the defendant’s presence.

Once You Waive Miranda Rights and Talk You Waive the Right to Remain Silent to Any Crime

Cobb vs. State No. 72 – 807, opinion entered 5/29/2002; if a law-enforcement officer subsequently approach the suspect about another offense, whether related to the charged offense or not, and administers the Miranda Rights warning, neither the Federal nor the Texas Constitution prevents the suspect from voluntarily waiving his privilege and speaking to the officers about his other offense, even without the benefit of his counsel’s assistance. In other words, it would be wise to never talk to a police officer about any even if you have an attorney.

State Must Actively Seek Out a Probationer If Motion to Revoke Probation is Filed/Also Works for Parole

Peacock vs. State No. 1750-00, 5/29/2002; when the state has filed a Motion to Revoke Probation and the Probationer raises the issue of whether the State actively went looking for him the State is required to prove due diligence by a preponderance of the evidence when the issue is raised at the revocation hearing. This would also be applicable to a parole revocation hearing.

No Right to a Good Attorney on Writ of Habeas Corpus

In a shocking opinion, the Court of Criminal Appeals of Texas ruled in Ex Parte Anthony Charles Graves, No. 73,927, delivered on January 2, 2002, “There is no constitutional right to effective assistance of counsel on a writ of habeas corpus.” The more alarming statement contained in this opinion is “the fact that an appeal has been provided does not automatically mean that a state then acts unfairly by refusing to provide counsel to indigent defendants at every stage of the way. In sum, simply because a state provides for the possibility of a particular procedure or remedy, it does not inextricably follow that the state must also provide legal counsel to one seeking to pursue that remedy. Here, the writ of habeas corpus is a constitutionally available remedy for instances of illegal restraint, but nothing in the federal or Texas Constitution requires the state to appoint and pay for counsel to pursue that remedy. If the convicted person has no constitutional right to appointment of any counsel in a post-conviction habeas corpus proceeding, it inevitably follows that he cannot claim constitutionally ineffective assistance of counsel in that proceeding.” The court further ruled the 1995 Habeas Corpus Reform Act did not create a constitutional right to effective assistance of counsel in death penalty cases. Once again, it is now incumbent upon an inmate to find competent counsel to represent him or suffer the consequences at a later date. This ruling was so shocking that the Dallas Morning News wrote an editorial against this particular decision.

The Fifth Circuit issued an opinion in Teague v. Quaterman (5th Cir. 3/2/07).  This case holds where an inmate’s sentence is subject to either mandatory supervision or discretionary mandatory supervision, if the inmate suffers the loss of any time credited as a result of disciplinary actions, such loss is a valid liberty interest issue, and is not de-minimus in nature therefore a writ to challenge any claim of defect in the constitutionality of the disciplinary process can be filed directly in federal court.  This will allow the inmate to get around the decision in Ex Parte Brager, 704 S.W.2d 46 (1986) indicating Texas courts will no longer consider such discipline actions.

5th Circuit:

Case Dealing With Mandatory Supervision and Disciplinary Actions

The Fifth Circuit issued an opinion in Teague v. Quaterman (5th Cir. 3/2/07). This case holds where an inmate’s sentence is subject to either mandatory supervision or discretionary mandatory supervision, if the inmate suffers the loss of any time credited as a result of disciplinary actions, such loss is a valid liberty interest issue, and is not de minimus in nature therefore a writ to challenge any claim of defect in the constitutionality of the disciplinary process can be filed directly in federal court. This will allow the inmate to get around the decision in Ex Parte Brager,704 S.W.2d 46 (1986) indicating Texas courts will no longer consider such discipline actions.

Change in Parole Board Rules Not Ex Post Facto Violation:

The Fifth Circuit Court of Appeals in February 2008 in Wallace v. Quarterman, #06-41196 issued an opinion on whether an inmate who was convicted for life on capital murder back in 1981 when the parole panel was composed of three board members and at the time the three board panel could release an inmate when two of the three board members decided in favor of parole. By the time Wallace was considered for parole, the statute had been amended to require two-thirds of the total parole board membership to vote in favor of parole, thus lessening his chance for parole. Wallace claimed that two of the three parole members on the Palestine Parole Board voted in favor of his parole, but under the new law requiring two-thirds of the total parole board members to decide an inmate’s fate the other parole board members voted against him. Wallace claims had the 1982 statute applied at the time his parole was considered, he would have been granted parole. Wallace claimed ex post facto is violated, but the Fifth Circuit Court of Appeals ruled there was no ex post facto violation, therefore he must convince 3/4 of the entire parole board to receive parole.

Disciplinary Hearing In Prison Have To Follow The Law:

Morgan v. Dretke, 433 F.3d 455(5th Cir.2005), Even under the “some evidence” standard, the evidence is insufficient to support a disciplinary action because there was no evidence to support the disciplinary decision finding prisoner guilty of assaulting an officer when there was not evidence to show the officer was injured. This is an extremely interesting opinion for two reasons, first, the fact that the Fifth Circuit Court of Appeals even accepted and addressed a disciplinary case and second, their decision on disciplinary hearings do have to follow the law, and some evidence means there has to be evidence of some nature.

Texas Courts:

The Right To Have A Preliminary Parole Revocation Hearing While Being Held In Custody:

The Court of Criminal Appeals issued an opinion in Ex parte Cordova, # 75771( August 2007). This opinion follows the opinion in Ex parte Williams handed down in May 2007, which was unpublished. The Cordova opinion holds the parole board must now grant a preliminary parole revocation hearing to those parolees who have had a revocation warrant placed on them and who are now in jail on new pending charges. The court indicates the hearing must be promptly given. The parole board as well as the parole division, this is the bureaucracy that handles inmates on parole, continue to ignore this decision and inmates who are charged with violating a condition of parole are continuing to be held in custody until such time as they dispose of their criminal charges either through a plea, a finding of not guilty, a dismissal, or a trial in which they are found guilty. Only then is there a parole-revocation hearing held to determine if the inmate should be returned back to prison or be placed back on parole. While I have been very successful in representing my clients in parole revocation hearings, my clients continue to sit in county jail until their new criminal case has been disposed of.

Statements In Prison Records Not Admissible In Court:

State of Texas v Russeau, 771 SW3d 871 is a recent case I used in a criminal trial. The court held in this case that statements in prison records about defendants numerous incidents of misconduct were testimonial and therefore, would not be admissible under the business records exception because they would violate the defendant’s right of confronting and cross examining witnesses. This could be an important case for any inmate who has been charged with committing a crime in prison and is being tried in state court for this crime instead of receiving a disciplinary action.

Beware of Plea Bargaining Away Jail Time Credit:

The recent case of Collins v. Texas (11/21/07)PD 1203-06 presents a new challenge for defense attorneys and their clients. In Collins, the defendant agreed to a plea bargain where a specific number of days in jail were to be credited to the judgment and sentence as Jail Time credit. Mr. Collins had spent over 200 days in jail in Louisiana and a Texas detainer had been filed against him while in Louisiana. The time Mr. Collins spent in Louisiana was not mentioned in the judgment or sentence, and the court at the time of the pleading only acknowledged the time spent in the County of conviction without including the Louisiana time being included. Once in prison, Mr. Collins realized he was entitled to the additional Time Credit and he filed a nunc pro tunc seeking the 200 days he had spent in the Louisiana jail. The state objected to the nunc pro tunc contending there was no clerical error to be corrected and instead the time granted was part of the plea bargain. The state won its argument and Mr. Collins did not receive the 200 days he spent in Louisiana custody.

Attaching Funds In Inmate Account: (This Case Overruled See Walter Case)

Many of the inmates have discovered the Legislature created in Sec.501.014(e) of the Government Code a law that allows the County of conviction to attach funds in an inmate’s prison trust account to pay for expenses the state has incurred. Some of these expenses include child-support payments, cost of court, appointment of attorneys fees, as well as other costs. McLennan County has been especially aggressive and has garnished inmates’ prison accounts and collected approximately$65,150. The Texarkana Court of Appeals in Abdullah v. Texas___ SW.3d ____ (06-06-00064-CV) decided January 12, 2007, ”Inmate was not accorded due process nor given proper notice before trial court entered post judgment garnishment order directing removal of money from his inmate trust fund account; no attempt was made to follow garnishment procedure, turnover procedure, or any type of procedure before trial court entered its order, there were no pleadings, no proper writ of garnishments, no notification, no warnings, and no opportunity to respond. The opportunity to be heard is the fundamental requirement of due process; it is an opportunity which must be granted at a meaningful time and in a meaningful manner.” In other words, the court said even the State of Texas must follow its own Civil Rules of Procedure to garnish an inmate’s account and the inmate has a constitutional right to prior notice, proper pleadings, and the right to be heard prior to the removal of funds from an inmate’s trust account.

Restitution Orders By The Criminal Courts:

In Walter E. Harrell v. The State of Texas the Supreme Court of Texas (the highest Court in Texas for civil matters) issued a ruling regarding Government Code Section 501.014(e) which concerns the recovery of court fees and costs assessed against inmates by a criminal court. The court ruled collection efforts are designed to reimburse the state, not punish the inmate, and due process is satisfied if the inmate receives notice and the opportunity to be heard after funds are withdrawn from an inmate’s trust account. In this case due process was satisfied when the convicting trial court issued orders directing the Texas Department of Criminal Justice to withdraw certain funds from the inmate’s trust account to pay for court costs and appointed counsel fees and sent the notice at the same time the funds were withdrawn. This means monies contained in an inmate’s trust fund can be removed without the need of the state proceeding through the civil remedy of garnishing the inmate’s trust fund.

Good Time Credit:

I have received letters indicating TDCJ is refusing to grant time credited by the trial court. I am very curious why this is occurring since the entire Court of Criminal Appeals in Ex parte Perry Williams Harvey, 846 S.W.2d 328, indicated,”The Texas Department of Criminal Justice Institutional Division is authorized to award and compute credit for good conduct time. However, only the judge of the court in which the defendant was convicted shall compute credit for the time the defendant’s been in jail in said cause from the time of his arrest and confinement until his sentence by the trial court. No requirement exists for the trial court to detail the reasons for the award of credits for time spent in jail prior to sentencing other than the documentation required in Article 42.06, subsection 8,V.A.C.C.P, provided that such credit does not exceed the time between date of commission of the offense and the imposition of a sentence.

United States Supreme Court:

Never Talk to the Police They Are Not Your Friend:

The Supreme Court of the United States in Montejo v. Louisiana decided to overrule Michigan v. Jackson, 475 U.S. 635 which originally forbid police to initiate interrogation of a criminal defendant once he had invoked his right to counsel at an arraignment or similar proceeding. In this case petitioner Montejo was charged with first-degree murder, and the court ordered the appointment of counsel. Later that day the police read Montejo his rights under Miranda v. Arizona, 384 U.S. 436 and he agreed to go along on a trip to locate the murder weapon. During the excursion he wrote an inculpatory letter apologizing to the victim’s widow. Upon returning, he finally met his court-appointed attorney. At trial this letter was admitted over defense objections, he was convicted and sentenced to death. The court reasoned Jackson protection is not triggered unless the defendant has actually requested a lawyer or has otherwise asserted his Sixth Amendment right to counsel and since Mr. Montejo stood mute at his hearing, he had made no such request or assertion. In simple English you had better insist on having your attorney present because unless you assert this right, anything you say or do will be used against you. There are even statements in this opinion by Justice Scalia indicating it would not be correct to allow a guilty man to escape his punishment because of a mere legal technicality.

6th Amendment Is Alive and the Supreme Court Will Allow You to Confront Your Witness:

The Supreme Court of the United States in the case of Melendez-Diaz v. Massachusetts reasserted the right to confront and cross-examine witnesses they originally upheld in Crawford v. Washington, 541 U.S. 36. In this case at petitioner’s state court drug trial the prosecution introduced certificates of state laboratory analysis stating that the material seized by the police and connected to the petitioner was cocaine of a certain quantity. The certificate was sworn to before a notary public and was submitted as evidence of what was asserted in the affidavit. Petitioner objected and demanded the analyst testify in person. The trial court disagreed, the certificate was admitted, and the petitioner was convicted and the Massachusetts Appeals Court affirmed, rejecting petitioner’s claim that the certificates admission violated the Sixth Amendment. The Supreme Court of the United States ruled the admission of the certificates violated petitioner’s Sixth Amendment right to confront the witness against him. Based upon this decision, defendants can compel the state to produce witnesses and require live testimony in open court instead of relying on affidavits. The same Justice Scalia who is not overly fond of excluding evidence because a defendant did not invoke his right to have an attorney, even though an attorney had been appointed to represent him, strongly advocates a defendant has the absolute right to confront witnesses against him.

The Federal Guidelines Are No Longer Compulsory:

In Kimbrough v. United States, the United States Supreme Court holds “ the crack cocaine guidelines, like other guidelines, are advisory only, and when the sentencing court does not follow the guidelines and departs down from the guidelines the reviewing appellate court can no longer apply the extraordinary circumstances rule to justify rejecting the downward departure by the trial court. The court ruled such an approach as applying the extraordinary circumstances rule came too close to creating an impermissible unreasonableness to non-guideline sentences.” The court ruled It has been uniform and constant in the federal judicial tradition for the sentencing judge to consider every convicted person as an individual and every case as a unique study in the human failings that sometimes mitigate, sometimes magnify, the crime and the punishment. Simply put, the Federal Guidelines are no longer controlling what any persons sentence will be now; it is the persuasive ability of the lawyer and the information he can give the court to grant a lower sentence.

Certain Misdemeanor Cases Can Not Be Used To Deport Permanent Resident Aliens:

The United States Supreme Court in Lopez v Gonzales, 546 U.S.____(2006), Conduct that would be a misdemeanor under federal law, even though a felony under state law, is not an aggravated felony for immigration purposes and a permanent resident alien cannot be deported based solely on the state conviction. This overrules the reasoning by the Fifth Circuit Court of Appeals in United States v. Hernandez-Avalos. This is a major decision for a number of inmates who are presently incarcerated in TDCJ with immigration holds placed upon them. They now can contest their deportation, especially if it was a minor amount of drugs. This could also affect deportation for other crimes, not just drug offenses. If the state crime would have been a misdemeanor under federal law, then there is now a defense to deportation.