Case Law Update: 2011-2014 Cumulative Edition

Holding: Trial counsel ineffective in failing to assert statute of limitations defense to child pornography charge.
Lee v. Lampert, 89 Crim. L. Rep. 720 (9^th Cir. 8/2/11):

Holding: An “actual innocence” exception applies to one-year federal statute of limitations for filing federal habeas petition.
Doe v. Busby, 90 Crim. L. Rep. 165 (9^th Cir. 10/24/11):

Holding: Even though Petitioner’s retained habeas counsel had apparently done nothing to file a habeas petition for a long time, Petitioner was still entitled to equitable tolling of the statute of limitations because a lay person isn’t in a position to know that his attorney’s explanations for the delays aren’t valid.
World Publishing Co. v. Department of Justice, 90 Crim. L. Rep. 718 (10^th Cir. 2/22/12):

Holding: A Freedom of Information Act request seeking mug shots from the U.S. Marshals Service was properly rejected as an “unwarranted invasion” of the subject’s personal privacy.
Zack v. Tucker, 2012 WL 34125 (11^th Cir. 2012):

Holding: Timely assertion in habeas petition of one claim made all other claims in the petition timely, barring the district court from reviewing the timeliness of claims on an individual basis.
Brown v. Aud, 2012 WL 2711397 (E.D. Mich. 2012):

Holding: Law making trenbolone a controlled substance except when administered to animals was unconstitutionally vague as not giving fair notice of prohibited conduct.
Williams v. Birkett, 2012 WL 4513414 (E.D. Mich. 2012):

Holding: Petitioner was entitled to equitable tolling of the time for filing his habeas petition where he had limited mental abilities and the trial judge in his case gave him confusing and legally erroneous information about when to file a habeas.
Baker v. State, 2013 WL 2450537 (Kan. 2013):

Holding: Where a direct appeal had resulted in a remand for resentencing, the statute of limitations for filing a state postconviction action began to run on the date for filing a notice of appeal from the new sentence on remand; appellate court rejected State’s claim that time began to run when appellate court issued its original mandate.
Ata v. Scutt, 662 F.3d 736 (Mich 2011):

Holding: Habeas petitioner was entitled to evidentiary hearing regarding whether his mental incompetence warranted tolling the habeas limitations period because his motion alleged specific enough facts to create a causal link between his untimely petition and his mental incompetence and his allegations were consistent with the record.
Whitehead v. State, 2013 WL 1163919 (Tenn. 2013):

Holding: Time for filing postconviction motion was tolled where direct appeal appellate counsel abandoned petitioner by incorrectly calculating the deadline for filing, failing to notify him that the U.S. Supreme Court had denied cert in his case, failing to tell him that their attorney-client relationship had ended, and failing to send petitioner his file until after the deadline passed.
Money v. State, 2012 WL 4475332 (Ala. Crim. App. 2012):

Holding: Even though Defendant was properly indicted on felony, he could not be convicted of less-included misdemeanor offense for which the statute of limitations had expired by the time the felony offense was filed.
People v. Milstein, 150 Cal. Rptr.3d 290 (Cal. App. 2012):

Holding: Conspiracy to defraud by false pretenses is subject to 3-year statute of limitations for conspiracies in general, not 4-year statute of limitations for felony offenses for fraud.
Phillips v. State, 2011 WL 2409307 (Tex. Crim. App. 2011):

Holding: Where the statute of limitations had already expired in sex case, it would be ex post facto to apply a new amendment extending the statute of limitations to the Defendant.

Statutes – Interpretation – Vagueness
State v. Wade, 2013 WL 6916794 (Mo. banc Dec. 24, 2013):

Since Article I, Sec. 13’s ban on “retrospective” laws applies only to “civil laws,” it does not apply to Sec. 566.150, which is a “criminal law” which prohibits certain sex offenders from knowingly being in or loitering within 500 feet of a park with playground equipment or a public swimming pool. Therefore, Sec. 566.150 applies to sex offenders who were convicted of their crimes before enactment of the statute.

Facts: Various sex offenders, who were convicted of their offenses in the 1990’s, were charged with violation of Sec. 566.150, which prohibits certain sex offenders from “knowingly be[ing] present in or lotier[ing] within 500 feet of any real property comprising any public park with playground equipment or a public swimming pool.” They claimed Sec. 566.150 was an unconstitutional “retrospective” law, as applied to them, because they were convicted of their offenses before enactment of the law.

Holding: State v. Honeycutt, No. SC92229 (Mo. banc 11/26/13), recently held that Article I, Section 13’s ban on “retrospective” laws does not apply to “criminal laws,” but only to “civil laws.” The question here is whether Sec. 566.150 is “civil” or “criminal.” This is a two-part test: First, whether the legislature intended the statute to affect civil rights and remedies, or criminal proceedings. If the legislature intended to impose “punishment,” that ends the inquiry. But if the legislature intended the law to be a “civil” regulatory scheme, the Court must determine if the scheme is “so punitive in purpose or effect as to negate the intention to affect civil rights or remedies.” To analyze the effects of regulation, this Court asks whether the regulatory scheme (1) has been regarded historically as punishment; (2) imposes an affirmative disability or restraint; (3) promotes the traditional aims of punishment; (4) has a rational connection to a nonpunitive purpose; or (5) is excessive with respect to the nonpunitive purpose. Sec. 566.150 is part of the criminal code, appears on its face to be criminal, and does not explicitly state that it has the purpose of protecting the public by alerting the public to sex offenders in the area. The statute uses criminal language – “shall not knowingly be present.” It also proscribes a penalty, Class D felony, that increases to a Class C felony on a second violation. Most important, Sec. 566.150 does not depend on a sex offender’s registration status. In fact, the statute does not reference the registration list. An offender is guilty of violating 566.150 independently of any duty to register, if he has committed certain listed offenses. Therefore, 566.150 is “criminal” in nature, and Article I, Sec. 13 does not apply. Although not before the Court, the issue of whether 566.150 violates ex post facto would not be successful. 566.150 makes it a crime for certain prior offenders to loiter near or be present in certain parks. The conduct of the Defendants here in being near the parks all occurred after enactment of 566.150, so there is no ex post facto violation. R.L. v. Dep’t of Corrections, 245 S.W.3d 236 (Mo. banc 2008), held that a law prohibiting certain sex offenders from living within 1,000 of a school or child-care facility was “retrospective” to offenders who were convicted before enactment of that law. F.R. v. St. Charles County Sheriff’s Dep’t, 301 S.W.3d 56 (Mo. banc 2010), held that a “Halloween law” which prohibited certain sex offenders from engaging in Halloween activity was “retrospective” to offenders who were convicted before enactment of that law. “To the extent that R.L. and F.R. conflict with Honeycutt due to their failure to perform any analysis to determine whether the statute being challenged was a criminal law, they should no longer be followed.”

Concurring Opinion: Three judges join in a concurring opinion to “express concern” about the Court’s “increased willingness” to characterize a law as “criminal” or “civil” merely from where it is placed in the RSMo. codification system. These judges note that where a statute is ultimately placed in RSMo. is determined by the Joint Committee on Legislative Research, not necessarily the Legislature as a whole. “Until recently, this Court had a long and unblemished record of refusing to recognize any probative value in the codification or structure of legislative enactments on the question of statutory construction.”

Dissenting Opinion: Three judges would hold that Sec. 566.150 is a “civil” regulatory scheme subject to application of the ban on “retrospective” laws. Just as sexual predator and registration laws have been held to be “civil,” even though they require incarceration, so, too, should this law be regarded as “civil.”
State v. Honeycutt, 2013 WL 6188568 (Mo. banc Nov. 26, 2013):

Article I, Sec. 13’s ban on “retrospective” laws does not apply to criminal laws; thus, since Sec. 571.070.1(1)’s ban on possession of firearms by felons is a “criminal” law, the statute is not unconstitutionally retrospective as applied to person whose prior felony pre-dated the statute.

Facts: Defendant was charged with being a felon in possession of a firearm, in violation of Sec. 571.070, which became effective in 2008. His prior felony was for drug possession in 2002. He claimed that Sec. 571.070 was unconstitutionally “retrospective” as applied to him, because his prior felony conviction pre-dated the law.

Holding: The U.S. Constitution and Missouri Constitution prohibit “ex post facto” laws. However, only a handful of state constitutions, such as Missouri’s, also prohibit “retrospective” laws. A historical review of the term “retrospective” laws shows that it had a technical meaning at the time the constitution was adopted that limited its reach only to statutes affecting civil rights and remedies; the term was never intended to apply to criminal laws. The term has a separate meaning than ex post facto laws. In R.L. v. Dep’t of Corrections, 245 S.W.3d 236 (Mo. banc 2008) and F.R. v. St. Charles Cnty. Sheriff’s Dept., 301 S.W.3d 56 (Mo. banc 2010, this Court found that laws prohibiting certain sex offenders from living within 1,000 of a school or child-care facility and imposing restrictions on what sex offenders can do on Halloween were “retrospective” in operation. R.L. and F.R. did not expressly address whether Article I, Sec. 13 applies to criminal laws. This Court presumed the laws in those cases to be “civil,” even though the laws carried criminal penalties. The determination of whether this Court’s treatment of the statutes in R.L. and F.R. as civil in nature was accurate is not before the Court in this case. This Court will analyze that issue only when it is properly preserved and presented on appeal. To determine if a law is “criminal” or “civil” in nature, we must ascertain whether the legislature meant the statute to establish “civil” proceedings. If the intention of the legislature was to impose punishment, that ends the inquiry. But if the intention was to enact a regulatory scheme that is civil and nonpunitive, we must examine whether the scheme is so punitive either in purpose or effect as to negate the intention to deem it “civil.” This Court has held that sex registration laws are “civil” and “non-punitive,” even though they have a punishment for not complying with them. The gun statute at issue here, however, appears on its face to be a “criminal” statute. The statute is in the criminal code, and is the type that has traditionally been regarded as punishment. Therefore, Article I, Sec. 13’s ban on “retrospective” laws does not apply to it.

Concurring Opinion: The statutes at issue in R.L. and F.R. sought to regulate the actions of sexual offenders by punishing them for engaging in conduct – such as giving out Halloween candy or living near schools or parks – that is perfectly acceptable if performed by persons who are not sex offenders, and it was because of this “regulatory effect” that the laws addressed in these two cases were held invalid.
Lumetta v. Sheriff of St. Charles County, 2013 WL 6070481 (Mo. banc Nov. 19, 2013):

Holding: Concealed carry statute, Sec. 571.101.2(2), prohibits persons who pleaded guilty to or were convicted of any felony offense, or a misdemeanor involving explosive weapons or firearms, from receiving concealed-carry permit. Thus, Petitioner, who had pleaded guilty in 1986 to a misdemeanor of possessing a firearm while intoxicated, was not eligible for a permit.
State v. Wooden, 388 S.W.3d 522 (Mo. banc 2013):

Holding: (1) Application to Defendant of Sec. 565.090.1(2), which provides that a person commits crime of harassment if he communicates with another person using “coarse language offensive to one of average sensibility and thereby puts such person in reasonable apprehension of physical contact or harm,” did not violate First Amendment where Defendant sent emails to city councilwoman (and others) which discussed using a sawed-off shotgun, domestic terrorism, the assassination of public officials, and called the woman a “bitch,” since threatening speech is not protected by the First Amendment, and here, the emails would put city councilwoman in “reasonable apprehension of offensive physical contact or harm,” but (2) a separate harassment conviction under Sec. 565.090.1(5) constituted plain error because that section was found unconstitutionally overbroad in State v. Vaughn, 366 S.W.3d 513 (Mo. banc 2012).
State v. Vaughn, No. SC91670 (Mo. banc 5/29/12):

(1) Sec. 565.090.1(5) which makes it harassment to “knowingly make[] repeated unwanted communication to another person” is unconstitutionally vague; however, (2) 565.090.1(6) which criminalizes a person who “without good cause engages in any other act with the purpose to frighten, intimidate, or cause emotional distress” is constitutional because it proscribes conduct, not merely speech.

Facts: Defendant was charged with two counts of “harassment” under Sec. 565.090.1. He was charged with violation of Sec. 565.090.1(5), which makes it a crime to knowingly make repeated unwanted communication to another person, because he had repeatedly telephoned his former wife after she had told him not to call again. He was also charged with violation of Sec. 565.090.1(6) for entering his former wife’s home when she was not there with the purpose of scaring her. The trial court dismissed the charges on grounds that 565.090.1(5) and (6) violated the First Amendment. The State appealed.

Holding: Regarding 565.090.1(5), “repeated,” “unwanted,” and “communicate” are simply words that can be applied too broadly. Although subdivision (5) purports to criminalize “harassment,” subdivision (5) does not require conduct to actually harass in any sense of the word. Rather, it criminalizes a person who “knowingly makes repeated unwanted communication to another person.” This would have a chilling effect on a broad range of everyday communication. For example, individuals picketing a private or public entity would have to cease once they were told that their protests were unwanted. Hence, subdivision (5) is unconstitutionally vague. Subdivision (6), however, is constitutional because it proscribes conduct, not merely speech.
City of Moline Acres v. Brennan, 2014 WL 295050 (Mo. App. Jan. 28, 2014):

Holding: City’s “speed camera” Ordinance (which makes it only a civil violation for speeding, imposes a fine, and imposes strict liability on the owner of the vehicle, not the driver) is invalid (1) because it conflicts with State law which makes speeding over 5 mph a misdemeanor and which requires assessment of points for speeding, and (2) because State law does not permit prosecution of persons who are not drivers for violating traffic law; this is a municipal expansion of liability for a State traffic violation that conflicts with State statute regulating the same subject.
City of St. Peters v. Roeder, 2014 WL 2468832 (Mo. App. E.D. June 3, 2014):

Holding: (1) City’s “red light” ordinance is invalid because conflicts with state law since ordinance does not require assessment of points against license; and (2) even though City claims appellate court can enter a conviction for violation of a different City ordinance, this rule applies only where evidence of a greater offense is held insufficient on appeal, but here, the “red light” ordinance is found invalid under state law; this is not a matter of evidentiary insufficiency.
Brunner v. City of Arnold, 2013 WL 6627959 (Mo. App. E.D. Dec. 17, 2013):

Holding: (1) City’s “red light” camera Ordinance violates state law, Sec. 302.225, because it expressly prohibits assessment of points for violators, but Sec. 302.225 requires courts to report any moving violations to the Department of Revenue for assessment of points; (2) Ordinance is “criminal” in nature and creates an unconstitutional rebuttable presumption that the owner of the vehicle was the driver; this denies an accused’s right to be presumed innocent until proven guilty; (3) Even though Plaintiff had paid his “red light violation” fine, he had standing to bring a challenge to Ordinance because the Ordinance was void ab initio since it was in conflict with state law, so the municipal court had no subject matter jurisdiction to enforce the Ordinance and all that court’s rulings are void; (4) Plaintiffs state a colorable claim that the Ordinance was in violation of the City’s police power because the Ordinance does not actually promote public safety since it fails to keep dangerous drivers off the road by not assessing points for violation, and numerous studies show that red light cameras actually increase crashes and injuries; (5) Plaintiffs state a colorable claim that City surrendered its governmental functions in prosecuting violations of the Ordinance to the private company that operates the red light cameras; and (6) Plaintiffs state a colorable claim that Ordinance is a prohibited revenue generating Ordinance, not one designed to promote safety, because the Ordinance allows dangerous drivers to remain on the road by not assessing points, the cameras do not photograph the actual driver of the car, and the Ordinance generates more revenue than is necessary to offset the cost of enforcement
Edwards v. City of Ellisville, 2013 WL 5913628 (Mo. App. E.D. Nov. 5, 2013):

Holding: City “red light” ordinance that makes it a non-moving violation for a car to be “present” in an intersection with a red light and which makes the owner liable for the fine is invalid, because this conflicts with State law that makes running a red light a misdemeanor moving violation and which requires assessment of points against driver’s license (overruling City of Creve Coeur v. Nottebrok, 356 S.W.3d 252 (Mo. App. E.D. 2011)).

Discussion: To be valid, city ordinances cannot conflict with State law. Sec. 304.128 makes it a misdemeanor for a driver to run a red light. However, the City ordinance imposes strict liability on the owner of a car, if the car is present in an intersection with a red light. The ordinance regulates the same conduct as Sec. 304.128. The City cannot circumvent Sec. 304.128 by using semantics to say the ordinance only regulates the “presence” of cars in intersections. The ordinance conflicts with 304.128. The ordinance also conflicts with Secs. 302.225 and 302.302 which also require the assessment of points against a license for moving violations such as running a red light. The ordinance seeks to make running a red light a nonmoving violation with no points. However, by failing to require the municipal court to report a violation to the Director of Revenue for assessment of points, the ordinance conflicts with 302.225 and .302. To the extent that City of Creve Coeur v. Nottebrok is to the contrary, it is overruled.

Unverferth v. City of Florissant, 2013 WL 4813851 (Mo. App. E.D. Sept. 10, 2013):

Holding: (1) City’s “red light camera” Ordinance conflicts with Missouri law because it regulates moving vehicles without requiring the municipal court to report the violation to the Department of Revenue as required by Missouri statutes; (2) Petitioner-Driver (who filed suit challenging the Ordinance) was entitled to discovery and to present facts on her claim that City exceeded its authority under its police power to enact the Ordinance because the purpose of the Ordinance (as alleged by Petitioner) is to raise municipal revenue, and not to regulate traffic or promote safety; and (3) Petitioner-Driver was entitled to discovery and to present facts on her claim that the Ordinance violates Supreme Court Rule 37.33 and denies procedural due process because traffic citations issued under it do not list a court date or how to contest a citation, and imply that there is no means to contest a violation.
State v. Diaz-Rey, 2013 WL 1314968 (Mo. App. E.D. April 2, 2013):

Holding: Charging alien-Defendant in Missouri state court with forgery, Sec. 570.090, for using a false Social Security number on a job application was not preempted by federal law involving employment of aliens.
State v. Kelly, No. ED96743 (Mo. App. E.D. 4/24/12):

Even though Defendant-sex offender left one address and didn’t establish a new permanent address for several months, the registration statute, 589.414, required that he report changing from the prior address within three days.

Facts: Defendant-sex offender lived at one address but vacated it in December. He did not register a new address until March, when he said he obtained a new permanent address. Defendant was convicted of failure to report change of address as a sex offender for not reporting a change within three days after leaving the first address in December.

Holding: Defendant claims he was not required to update his address until he had a new “permanent” address and that he was transient between December and March. This appears to be an issue of first impression in Missouri. Federal courts have held, however, that the plain language of SORNA requires registration when one leaves a residence with no intent to return. 589.414.1 requires updating registration “not later than three business days after each change.” The statute makes no reference to a “new” residence, but only to a “change” in residence. Thus, when a sex offender leaves a residence with no intention to return, even if he leaves to become homeless, his residence has changed as it is no longer that of the original residence, and he must update his registration. Conviction affirmed.
State v. Harrison, 390 S.W.3d 927 (Mo. App. S.D. 2013):

Holding: Even though Sec. 194.005 defines “death” as cessation of spontaneous respiration and two-month old fetus/victim had not yet begun respiration so respiration could not cease, Defendant can be found guilty of involuntary manslaughter for death of fetus/victim in vehicle crash because Sec. 1.205 defines life as beginning at conception and Sec. 565.024 provides that an unborn child can be a victim of involuntary manslaughter; this shows a legislative intent as to manslaughter of the unborn, and it would be unreasonable to hold that Sec. 194.005 negates that intent since Sec. 194.005 had the different purpose of defining death for artificial life support purposes. This was a case of first impression.
State v. Myers, No. SD31357 (Mo. App. S.D. 5/11/12):

Offense of “receiving” stolen property does not require proof that Defendant obtained the property from a “second person” than the owner.