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Thursday, March 15, 2007

Ind. Decisions - 7th Circuit issues 3 Indiana decisions today

IN RE: Garzolini Tire and Fuel (SD Ind., Richard L. Young, Judge) is a bankruptcy appeal and deals with the signatures on the mortgage. In a 5-page opinion Judge Easterbrook writes:

Garzolini Tire maintains that these signatures are inadequate, because the Garzolinis may have been signing exclusively in their personal capacities. The notary’s attestation does not reveal in which capacity they signed, so the document is ineffective under Ind. Code §32-21-2-3. Although Ind. Code §32-21-2-3 and its predecessors deal with the recording of mortgages rather than with the rights of the parties to the transaction, see Hubble v. Wright, 23 Ind. 322 (1864), in a bankruptcy proceeding the trustee or debtor in possession can assume the position of a hypothetical third party that could take ahead of a non-recorded mortgage. See 11 U.S.C. §544(a). * * *

This particular mortgage was acknowledged by two corporate officers, proved before a notary public, and later proved before a bankruptcy judge. As long as the Garzolinis were acting on behalf of Garzolini Tire, there is no problem. And whether they were so acting is a question not of law but of fact—and the bankruptcy judge found that they acted in both corporate and personal capacities.

The bankruptcy judge’s understanding of this document seems to us entirely sensible, if it is not inevitable. Each Garzolini signed twice—once on the left side in a corporate capacity, and once on the right in a personal capacity. The left side gives the corporate name, followed by “By” and the signature of the corporation’s President. It does not take the word “President” after Bruno’s name to illuminate the capacity in which one signs when the immediately preceding text is “GARZOLINI TIRE & FUEL, INC., By:” The next line makes this clear; Robert Garzolini, as Vice President (or “V.P.”), attests the signature, a step unnecessary and inappropriate unless Bruno was signing for the corporation as its President. And the notary tells us that the signatures are genuine. We have no doubt that Indiana’s courts would treat this as an effective mortgage.

USA v. Luster, Dewayne (SD Ind., Sarah Evans Barker, Judge) is a 12-page opinion by Judge Sykes that affirms the lower court:
First, ample evidence supported the jury’s finding that Luster participated in an extensive cocaine distribution operation headed by codefendant Prentice Davis. Numerous recordings of telephone conversations between Luster and Dramane Johnson, Davis’s primary distribution agent, showed Luster placing frequent orders for large quantities of cocaine he knew were tied to Davis. This and other evidence permitted the inference that Luster worked cooperatively with Johnson and Davis to distribute cocaine and was not merely in a “buyer-seller” relationship with them, as he maintains. Second, the evidence Luster argues should have been excluded—Davis’s testimony that Luster bought cocaine from him in 2000—was properly admitted under the “inextricably intertwined” doctrine because it provided the jury essential background information about the origins and operational structure of the charged conspiracy. Third, the district court properly applied the firearms sentencing enhancement because Luster reasonably could have foreseen that Davis and Johnson possessed firearms in furtherance of their large cocaine distribution enterprise.
In Miller, Keith v. Vannatta, John (ND Ind., Theresa L. Springmann, Judge), an 11-page per curiam opinion, the panel writes:
Indiana prisoner Keith Miller, who is 71 years old, is serving a 48-year sentence for his convictions on 18 counts of state securities violations. Miller, who was convicted in absentia after failing to appear for trial, attended his sentencing hearing but remained silent throughout the proceedings on the advice of his attorney, Kevin McShane. McShane likewise refused to participate. After his convictions and sentence were up held on appeal, Miller successfully petitioned for postconviction relief and was granted resentencing, but the Indiana Court of Appeals reversed that decision. Miller then filed a petition for a writ of habeas corpus in federal court, which was denied. On appeal Miller argues that the state appellate court unreasonably concluded that McShane’s performance at sentencing was not deficient or prejudicial, and he further contends that United States v. Cronic, 466 U.S. 648 (1984), rather than Strickland v. Washington, 466 U.S. 668 (1984), governs his claim. We conclude that Cronic is indeed the proper framework, but that, regardless of which standard we apply, Miller meets his burden. Accordingly, for the reasons set forth in the following opinion, we reverse the district court’s decision and remand with instructions to grant the writ of habeas corpus. * * *

In this case, McShane’s advocacy at sentencing was so non-existent as to fall within even a very narrow exception. Other than orally moving for a new trial and explaining several times that neither he nor Miller would participate in the proceedings, McShane said nothing throughout the sentencing hearing. By his own admission, he did not offer a shred of mitigating evidence, object to (or consult with his client about) errors in the PSR, or even lobby for a sentence lower than the one urged by the State. In his own words, he “did nothing.” * * *

Although the State insists that McShane’s failure to participate was “strategic” and all but unreviewable, no discernable strategy was at work here. McShane explained why he instructed Miller to remain silent—to prevent the judge from learning that Miller was aware of his trial date—but McShane never explained his own silence. He gave no indication that he had reason to believe the court would force him to testify against his own client by revealing what Miller knew. In any event, McShane could have declined to discuss the trial but still commented on issues relating to the sentence. To hold that “strategy” justified McShane’s decision would be to make a mockery of the word.

Finally, we are compelled to express our concern with the advocacy on behalf of the State in this matter. We are hard-pressed to recall so pronounced a dereliction of duty on the part of an attorney as occurred at Miller’s sentencing hearing. Of course, we do not suggest that the State should have conceded its case, but, where so great a lapse occurs, it would behoove the State to acknowledge the gravity of the circumstances and address the shortcomings in its case. Instead, regrettably, both in the briefs and at oral argument, we experienced only an intractable effort to rationalize at any cost the constitutional violation that took place.

III. The Indiana Court of Appeals unreasonably applied federal law in concluding that McShane’s decision to stand mute at Miller’s sentencing hearing did not amount to ineffective assistance of counsel. McShane’s total abandonment of his client warrants the application of Cronic, and we presume that the non-participation prejudiced Miller’s position at sentencing. Moreover, we would reach the same result even if we found it necessary for Miller to establish prejudice. Accordingly, we REVERSE the denial of Miller’s petition and REMAND the case to the district court with instructions to grant the writ of habeas corpus to the extent that Miller must be resentenced with the assistance of counsel.

Posted by Marcia Oddi on March 15, 2007 02:40 PM
Posted to Ind. (7th Cir.) Decisions