Split Over Whether "Actual Innocence" Exception is Available to those who were Erroneously Sentenced as Habitual Offenders Remains Unresolved

Per Harper v. Hubert, 2008 WL 4534097 (E.D. La. Oct 07, 2008):

In Haley v. Cockrell, 306 F.3d 257 (5th Cir.2002), the United States Fifth Circuit Court of Appeals, after noting that a split exists among the circuits on that issue, held that the "actual innocence" exception is available to petitioners in noncapital proceedings who claim they were erroneously sentenced as habitual or multiple offenders. Id. at 265-66. However, the Haley court held that, when barred claims dealt with such alleged sentencing errors, the "actual innocence" requirement is met only when the petitioner shows that "he would have not been legally eligible for the sentence he received." Id. at 264. The Supreme Court subsequently vacated the Haley decision on other grounds and remanded the case to the Fifth Circuit. Dretke v. Haley, 541 U.S. 386 (2004). In so doing, the Supreme Court declined to answer the question of whether the "actual innocence" exception applies to noncapital sentencing errors. Id. at 393-94.

This Court does not attempt to answer the question left open by the Supreme Court. . . .


D. Colo. Notes Split Re Whether Plaintiff's Assertion of Post-Conviction Access to Biological Evidence for DNA Testing Is Cognizable under § 1983

Per McDaniel v. John Suthers, 2008 WL 4527697 (D. Colo. Oct 02, 2008):

[T]he Court must determine whether Plaintiff's claim, asserting a post-conviction right of access to biological evidence for DNA testing, is cognizable under Section 1983 or whether it is properly limited to the realm of habeas corpus.

The circuit courts have split in their resolution of this question. The Second, Seventh, Ninth, and Eleventh Circuits have found that a prisoner may properly bring a claim under Section 1983 for post-conviction access to biological materials for DNA testing. See, e.g., McKithen, 481 F.3d at 99; Savory v. Lyons, 469 F .3d 667, 669 (7th Cir.2006); Osborne v. Dist. Attorney's Office for the Third Judicial Dist., 423 F.3d 1050, 1054 (9th Cir.2005); Bradley v. Pryor, 305 F.3d 1287, 1290-91 (11th Cir.2002); see also Wade v. Brady, 460 F.Supp.2d 226, 237 (D.Mass.2006); Derrickson v. Del. County Dist. Attorney's Office, No. 04-1569, 2006 WL 2135854, at *8 (E.D.Pa. July 26, 2006). The Fourth, Fifth, and Sixth Circuits, on the other hand, have rejected this use of a Section 1983 claim, holding that such claims are limited to habeas corpus petitions. See Harvey v. Horan, 278 F.3d 370, 375 (4th Cir.2002); Kutzner v. Montgomery County, 303 F.3d 339, 340-41 (5th Cir.2002) (per curiam); see also Boyle v. Mayer, 46 F. App'x 340, 340 (6th Cir.2002).

Although the Tenth Circuit has rejected other attempts to use Section 1983 claims for post-conviction injunctive relief, see Alexander v. Lucas, 259 Fed. App'x 145 (10th Cir.2007), it has not considered whether it is possible to bring such a claim to gain post-conviction access to biological materials for DNA testing.


N.D. Cal. Analyzes Circuit Split Re Whether Failure to Act Constitutes a Continuing Violation of Agency's Statutory Duty

Per Public Citizen, Inc. v. Mukasey, 2008 WL 4532540 (N.D. Cal. Oct 09, 2008):

Here, plaintiffs suggest that the continuing violations doctrine applies to government in action. Although the Ninth Circuit has extended the continuing violations doctrine to employment and civil rights contexts, it has not offered any explicit guidance regarding application of the continuing violations doctrine to the situation at bar. See, e.g., Douglas v. Cal. Dep't of Youth Auth., 271 F.3d 812 (9th Cir.2001); Gutkowsky v. County of Placer, 108 F.3d 256 (9th Cir.2007). Courts outside of the Ninth Circuit are split on whether to apply the continuing violations doctrine to instances of agency inaction. See, e.g., Wilderness Soc'y v. Norton, 434 F.3d 584, 589 (D.C.Cir.2006) (concludes in dicta that § 2401(a) does not time-bar actions to rectify agency inaction in violation of a statutory duty); S. Utah Wilderness Alliance v. Norton, 301 F.3d 1217, 1232 (10th Cir.2002) (notes in dicta that an agency's failure to act as statutorily mandated "should be considered an ongoing failure to act, resulting in an ever-green cause of action for failure to act") . . . ("The statute of limitations commences to run anew each and every day that the Service does not fulfill the affirmative duty required of it.").


Eleventh Circuit Adopts Last Served Defendant Rule for Removal

Per ABA's Litigation News, Oct. 9, 2008:

Weighing in on a long-standing circuit split over when the time for removal runs in a multidefendant suit, the Eleventh Circuit in Bailey v. Janssen Pharmaceutica, Inc. [PDF] has adopted the so-called last-served defendant rule, suggesting that the U.S. Supreme Court’s decision in Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc. supports that rule.

In Bailey, the plaintiff served the last of four defendants over 30 days after service on the other three defendants. The last-served defendant filed a notice of removal 30 days from the date it was served. Both the district court and the Eleventh Circuit held that the notice of removal was timely because it was filed 30 days after last defendant was served


SCOTUS Denies Cert. in Case Addressing Split Re Standard of Review for Bremen Dismissals

Yesterday the Supreme Court denied certiorari in Arrow Electronics Inc. v. E.ON AG (9th Cir., 268 Fed. Appx. 551), a case that sought to resolve a circuit split regarding appellate review of dismissals under M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1 (1972). Here is BNA's brief summary of the ruling of the Ninth Circuit and the questions presented to the Supreme Court:

Summary of Ruling Below: Court affirms district court decision that dismissed certain claims for improper forum, in accordance with M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1 (1972), under which forum selection clause is to be enforced absent showing that it is unreasonable, unjust, fraudulent, or contrary to strong public policy.

Question(s) Presented: (1) Should Bremen doctrine, under which international forum selection clause is controlling if certain exceptions do not apply, be in line with contemporary domestic and international forum selection law? (2) Should Bremen dismissal be reviewed de novo, as nine circuits do, or using abuse of discretion standard, as do two (including Ninth)?


D. Mass. Reviews Split Re Whether PLRA Limits Attorneys' Fees to Rate Paid or Rate Set by the Judicial Conference

Per Hudson v. Dennehy, 568 F. Supp. 2d 125 (D. Mass. Jul 25, 2008):

Defendant's second objection relates to the cap on fees imposed by the PLRA. The PLRA limits the hourly rate to no "greater than 150 percent of the hourly rate established under [the CJA] for payment of court-appointed counsel." 42 U.S.C. § 1997e(d)(3).

. . . .

But the statute is not written in terms of what was actually paid. Rather, the PLRA caps fees at 150 percent of the hourly rate established for payment of court-appointed counsel. Hourly rates for CJA cases are set by the Judicial Conference.

. . . .

Accordingly, the amounts actually paid to court-appointed counsel are not the rates "established" by the Judicial Conference; rather, they reflect a lack of adequate funding by Congress.

. . . .

The issue is one of statutory construction that the First Circuit has yet to address.

. . . .

The few Circuits to have squarely addressed the issue are divided. Joining the Sixth Circuit is the Ninth Circuit, see Webb v. Ada County, 285 F.3d 829, 838-839 (9th Cir.2002). The Third Circuit stands alone in adopting the defendant's approach. See Hernandez v. Kalinowski, 146 F.3d 196, 201 (3d Cir.1998) (PLRA limits attorneys' fees to the hourly rate actually paid, not the rate set by the Judicial Conference)


Fifth Cir. Notes Split Re Decision Whether Crime is "Particularly Serious" is Matter for Court Jurisdiction

Per Solorzano-Moreno v. Mukasey, 2008 WL 4538322 n.5 (5th Cir. Oct 10, 2008):

We need not address the government's alternative jurisdictional argument that section 1252(a)(2)(B) precludes our review of the immigration judge's finding under section 1231(b)(3) that Solorzano's crime was "particularly serious." This argument, which posits that whether an alien has been convicted of a "particularly serious" crime is a matter of "discretion" within the meaning of section 1252(a)(2)(B), is the subject of a circuit split. Compare, e.g., Villegas v. Mukasey, 523 F.3d 984, 987 (9th Cir.2008) (holding that whether a crime is "particularly serious" is a "determination [ ] committed by statute to the Attorney General's discretion, so this court lacks jurisdiction to review it") with Nethagani v. Mukasey, 532 F.3d 150, 154-55 (2d Cir.2008) (reaching the contrary conclusion).


Despite Circuit Split, D.V.I. Allows Hague Convention Signatories to be Served by Certified Mail

Per Harvey v. Sav-U-Car Rental, 2008 WL 4394670 (D.V.I. Sep 22, 2008):

Fed.R.Civ.P. 4(f). A review of the caselaw considering the rule, reflects a split among the circuits and even within the Third Circuit regarding whether the Hague Convention, to which Japan is a signatory, allows service by certified mail. See, e.g., In Re Harnischfeger Industries, Inc, 288 B.R. 79, 85 (Bkrtcy.D.Del.2003); Friedman v. Israel Labour Party, No. Civ. A. 96-CV-4702, 1997 WL 379181 at 3 (E.D.Pa. July 2, 2997).

Despite the differing interpretations of Article 10(a) of the Hague Convention, we will follow our sister courts in the District of Delaware and the District of New Jersey. See, e.g., EOI Corp. v. Medical Marketing Ltd., 172 F.R.D. 133 (D.N.J.1997). Because Japan has not objected to the use of postal channels to serve judicial documents upon persons in Japan, Permanent Bureau Report on the Second Special Commission, 28 I.L.M. 1556, 1561 (1989), this Court holds that Plaintiff may serve said Defendant by certified mail.


W.D. Pa. Reports Circuit Split Re Whether Title II Applies to Employment Claims

Per Hemby-Grubb v. Indiana University of Pennsylvania, 2008 WL 4372937 (W.D.Pa. Sep 22, 2008):

The Third Circuit has yet to squarely address the issue. There is a split in the Circuits before whom the question has come. In Zimmerman v. Or. Dep't of Justice, 170 F.3d 1169 (9th Cir.1999), the Ninth Circuit held that Title II does not apply to employment claims. Id. at 1184. Conversely, in Bledsoe v. Palm Beach County Soil & Water Conser v. Dist., 133 F.3d 816 (11th Cir.1998), the Eleventh Circuit held that it does. Id. at 820.


10th Cir. Reports Split Re Justiciability of Equitable Relief Claims by Servicemembers for Unconstitutional Personnel Decisions

Per Hanson v. Wyatt, 540 F.3d 1187 (10th Cir. Sep 10, 2008):

In Dibble v. Fenimore, 339 F.3d 120, 126 (2d Cir.2003), the court noted a circuit split regarding "the justiciability of claims [by servicemembers] who seek equitable relief for alleged constitutional violations in personnel decisions." It counted five circuits that permit "equitable challenges to personnel decisions only when they constitute facial challenges to the constitutionality of military regulations, and not in cases of discrete individualized actions." Id. And it counted three that "have entertained equitable actions protesting military personnel decisions that were not facial challenges to the constitutionality of a military regulation." Id. Citing Walden v. Bartlett, 840 F.2d 771 (10th Cir.1988), the court put this circuit in the minority camp.

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