Archive for November, 2011

The November 2011 issue of the Virginia Law Review contains an essay by Judge Diana Gribbon Motz of the United States Court of Appeals for the Fourth Circuit entitled The Constitutionality and Advisability of Recess Appointments of Article III Judges. The bottom line appears to be that recess appointments of Article III judges are constitutional but not advisable, although history shows that the arguments against inadvisability are probably overblown. I use “appears to be” as a qualifier because the essay all but affirmatively states that such appointments are constitutional.

Judge Motz begins the essay by noting that she became interested in the topic when President Clinton used a recess appointment to appoint Judge Roger Gregory to the Fourth Circuit.

Apart from the specific topic, the essay is interesting for what it reveals about Judge Motz’s approach to constitutional interpretation (albeit outside of a specifically judicial context): ” Writings surrounding the Constitutional Convention, such as the debates at the Convention, correspondence among the delegates, and contemporaneous writings, including the Federalist Papers—the legislative history, if you will—do provide some assistance.”

After concluding that “the revolutionary era and post-ratification writings are inconclusive as to whether the Recess Appointments  Clause was intended as a limited exception to Article III’s tenure and salary provisions,” Judge Motz turns to historical practice. Judge Motz’s sources in this section are interesting. As precedent for relying on historical practice, Judge Motz points out that the Supreme Court has done so in its Establishment Clause cases (including Marsh v. Chambers). Judge Motz relies heavily on a brief filed by the United States in the Ninth Circuit, and also relies on a Federalist Society publication.

Another interesting aspect of the essay is Judge Motz’s observation, in passing, about the material circumstances giving rise to legal scholarship: “In twentieth century, post-war America, our transportation and communication systems advanced at a dizzying rate, making it far more difficult to find any practical rationale for recess appointments. At the same time, colleges and law schools graduated persons in record numbers. During the booming economy, these graduates (and their teachers) took advantage of the opportunity not available during the depression or in war time to consider esoteric questions like the advisability of recess appointments of federal judges. These factors coalesced into a perfect storm when President Eisenhower made three recess appointments to the Supreme Court.”

As they say, read the whole thing.

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The Fourth Circuit has issued a published opinion in United States v. Higgs denying 2255 relief on Brady and Strickland claims premised on the government’s use of Comprehensive Bullet Lead Analysis (“CBLA”) evidence. Judge Traxler wrote the opinion, in which Judges Shedd and Keenan joined.

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The Fourth Circuit yesterday vacated another enhanced sentence under the Armed Career Criminal Act in light of its August 2011 8-5 en banc decision in United States v. Simmons (prior discussions here and here). The panel that issued the unpublished per curiam opinion in United States v. Bellamy was composed of Judges Motz, Agee, and Wynn.

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A Fourth Circuit panel today ordered habeas relief to overturn a South Carolina capital conviction. The 2-1 decision was issued 14 months after argument. The underlying crime took place almost 30 years ago (in January 1982).

Judge King wrote the opinion for the panel in Elmore v. Ozmint, which was joined in by Judge Gregory. Judge Wilkinson wrote a dissenting opinion.

The combined opinions take up 194 pages (163 for the majority, 31 for the dissent).

Here are the first two paragraphs of Judge Wilkinson’s dissent:

It would be amusing, if it were not so very serious, to imagine for a moment the majority’s visit to a haberdashery. The visit would be a fun one, because my friends in the majority would try on every hat in the shop, except, of course, the one that might conceivably fit. Here, the majority dons the headwear of the jury, the state trial court, the state appellate court, the state post-conviction relief (PCR) court, and the federal district court, but then inexplicably leaves the premises without a passing glance at the cap befitting federal appellate judges reviewing under AEDPA the considered judgment of  a state court that a defendant’s counsel was not ineffective  and that there was no prejudice arising from that counsel’s  allegedly deficient performance.

The majority spends a considerable amount of time defending its conclusion that Edward Lee Elmore is entitled to habeas relief on his ineffective assistance of counsel claim.  But as Mark Twain is reputed to have said, “The more you explain it, the more I don’t understand it.”  SEC v. Chenery  Corp., 332 U.S. 194, 214 (1947) (Jackson, J., dissenting).  Simply put, the majority’s rejection of the South Carolina  PCR court’s determination that defense counsel’s alleged  deficiencies did not result in prejudice cannot be squared with  the deferential standards required under AEDPA, the facts of  this case, or Supreme Court precedent. And in the course of its decision, the majority unjustly impugns the criminal justice system of South Carolina, slanders a deceased man who simply had the misfortune of discovering his neighbor’s mutilated body, and grants habeas relief to a prisoner whom overwhelming evidence suggests brutally raped and murdered an  elderly woman in her home. For these reasons, I respectfully dissent.

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Judge Keenan wrote a for a unanimous panel (consisting also of Judges King and Davis) today in the published opinion in United States v. Spence. The opinion begins:

In this appeal, we consider whether Troy Spence’s sentence for possession of child pornography, a violation of 18 U.S.C. § 2252A(a)(5)(B), was properly enhanced as provided in 18 U.S.C. § 2252A(b)(2) based on his prior conviction under South Carolina common law for assault and battery of a high and aggravated nature (ABHAN). The sentencing enhancement at issue applies when a defendant has a prior conviction under certain federal statutes or a prior conviction under a state law “relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor” (the sexual abuse enhancement). 18 U.S.C. § 2252A(b)(2).

The district court, employing the modified categorical approach set forth in Taylor v. United States, 495 U.S. 575, 602 (1990) and Shepard v. United States, 544 U.S. 13, 20 (2005), relied on the indictment charging the ABHAN offense to conclude that the ABHAN conviction qualified as a predicate offense under the sexual abuse enhancement. Spence argues on appeal that the district court erred in applying the modified categorical approach, and that the court should have limited its consideration of the prior conviction to a categorical analysis only. We disagree with Spence’s argument, and affirm the district court’s judgment.

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The Fourth Circuit issued an unpublished per curiam opinion today in Scott v. Eaton Corp. Long Term Disability Plan. The panel, composed of Judges Motz, King, and Duncan, unanimously reversed a district court decision (Senior Judge Herlong, D.S.C.) that reversed a disability plan’s denial of benefits. The appellate panel accepted the plan’s argument that its decisionmaking process was sound and that its ultimate decision was supported by substantial evidence. After setting forth the law that an ERISA plan administrator’s decision is reviewed for abuse of discretion, the court wrote:

The record is clear that Eaton thoughtfully considered the views of Dr. Riley. Eaton and its  reviewers discussed Dr. Riley’s views, but gave them little weight because of their inconsistency and the fact that many of them were not based on objective evidence. Furthermore, Dr. Riley’s conclusions–those of a well-meaning family doctor–were contradicted by several specialists, who gave no indication of unreliability. It was not unreasonable to discount Dr. Riley’s conclusions in these circumstances.


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Ruth Marcus of the Washington Post argues in an op-ed that a Supreme Court ruling on the constitutionality of the individual mandate should come sooner rather than later. The argument targets some of the prudential reasoning at the end of Judge Kavanaugh’s dissent in Seven-Sky v. Holder while passing over Kavanaugh’s “technical interpretation of the statute.” Marcus argues that “the arguments of Kavanaugh and other advocates of constitutional can-kicking are unconvincing.” Fine. But whatever one’s prudential views about timing, they cannot overcome what a straightforward textual interpretation of the AIA requires. For that reason, advocates of AIA avoidance should aim their arguments at Congress in seeking an exception from the AIA (as I have previously argued).

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