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Thursday, April 07, 2005

Ind. Decisions - 7th Circuit posts four today

Bintz, Robert v. Bertrand, Daniel (ED Wis.) [18 pp.]

Before POSNER, MANION, and ROVNER, Circuit Judges.
MANION, Circuit Judge. Robert Bintz and his brother, David Bintz, were convicted, in separate Wisconsin state court proceedings, of murdering a bartender, Sandra Lison. After failing in his state appellate challenge to his conviction, Robert sought habeas corpus relief in the United States District Court for the Eastern District of Wisconsin, asserting that the state courts improperly allowed hearsay statements to be used against him at trial. The Eastern District denied the petition for writ of habeas corpus, and Robert appeals. We affirm. * * *

Robert Bintz has failed to show that the Wisconsin courts acted unreasonably when denying his Confrontation Clause claims. Those claims that were not procedurally defaulted were properly analyzed under the relevant Supreme Court precedent. We AFFIRM the denial of the petition for writ of habeas corpus.

USA v. Schlifer, James T. (WD Wis.) [10 pp]

Before KANNE, EVANS and WILLIAMS, Circuit Judges
WILLIAMS, Circuit Judge. James Schlifer appeals his sentence of 120 months on the ground that the district court violated the Sixth Amendment by sentencing him as a career offender without presenting the facts underlying his prior convictions to a jury. He also argues that in light of the Supreme Court’s decision in United States v. Booker, 125 S. Ct. 738 (2005), the district court erred in applying the guidelines under the prior mandatory sentencing scheme. Although Schlifer’s Sixth Amendment argument lacks merit, we vacate his sentence and remand for resentencing because the district court erred under Booker by sentencing Schlifer under a mandatory guidelines system, and the government has not demonstrated that the error was harmless. * * *

Prior to the Supreme Court’s decision in Booker, Schlifer’s appeal would have been frivolous. Neither the Supreme Court’s decision in Blakely nor this court’s opinion in Booker disturbed the principle that the “fact of a prior conviction” falls outside the Apprendi rule that facts increasing a sentence beyond the otherwise applicable statutory maximum must be proved to a jury beyond a reasonable doubt. * * *

This is not a plain error case, and our recent decision in Paladino is inapposite here. Schlifer was sentenced prior to the Supreme Court’s opinion in Booker, but he objected to his sentence in the district court on Blakely grounds. Schlifer also anticipated the possibility that the guidelines were severable. His objection was specific enough to preserve the argument he makes now about the mandatory character of his sentence because it was sufficient to alert “the court and opposing party to the specific grounds for the objection.” * * *

Because, in effect, the district court’s error amounts to a misapplication of the guidelines, Schlifer’s sentence must be vacated unless the error was harmless. * * *

The government ultimately fails to meet its burden of demonstrating that, if the district court had known that the guidelines are advisory rather than mandatory, its choice of sentence would have been the same. While the result might be different under a plain error standard, where the defendant has the burden of demonstrating that his substantial rights were affected, in this case the error cannot fairly be deemed “harmless.”

III. CONCLUSION. For the reasons stated above, we VACATE Schlifer’s sentence and REMAND the case to the district court with instructions to resentence in light of Booker. This opinion was circulated to the entire court before issuance. No member of the court in active service voted to hear the case en banc.

Benefiel, Bill J. v. Davis, Cecil (SD Ind., Richard L. Young, Judge) [5 pp.]

Before BAUER, EASTERBROOK, and EVANS, Circuit Judges. EASTERBROOK, Circuit Judge. Bill Benefiel, who is under sentence of death, exhausted his claims in state court, and this court held that he is not entitled to federal collateral relief. Benefiel v. Davis, 357 F.3d 655 (7th Cir.), cert. denied, 125 S. Ct. 481 (2004). Indiana has set an execution date of April 21, 2005.

Benefiel wants another round of federal collateral review. §2244(b). To obtain it, he needs this court’s permission under 28 U.S.C. But he has not applied under this provision, doubtless because his lawyers recognize that its conditions cannot be satisfied. * * *

The judgment of the district court is affirmed. The motion to recall the mandate in No. 03-1968 is denied. The motion for a stay of execution is denied. Treating the papers as a request to initiate a second federal collateral attack, we deny that application.

McElroy, Donnie v. Lopac, Gary (ND Ill.) [7 pp.]

Before FAIRCHILD, KANNE, and EVANS, Circuit Judges.BR> PER CURIAM. Pro se state prisoner Donnie McElroy sued several prison officials under 42 U.S.C. § 1983, claiming that they falsely charged him with a disciplinary violation and fired him from his prison job in retaliation for exercising his First Amendment right to free speech. Screening the case under 28 U.S.C. § 1915A, the district court dismissed the complaint for failure to state a claim because, in the court’s view, McElroy did not “specify a specific event, chronology, or reason for retaliation.” We affirm, but for different reasons. * * *

FAIRCHILD, Circuit Judge, dissenting. I agree that McElroy’s complaint should not have been dismissed for failure to describe the retaliatory conduct more particularly. Respectfully, however, I do not agree that it should be dismissed because the speech which allegedly caused the retaliation was not a matter of public concern and therefore not protected.

Posted by Marcia Oddi on April 7, 2005 11:44 AM
Posted to Ind. (7th Cir.) Decisions