N.D. Ohio Finds Split Among Circuits Re Question of Habeas Petitioners' Mental State as one of Fact or Mixed Law and Fact

Per Stallings v. Bagley, --- F.Supp.2d ----, 2008 WL 918712 (N.D. Ohio Mar 31, 2008):

In its prior discovery order, the Court assumed, without deciding, that § 2254(d)(2) would apply. Since issuing that order, however, it appears that circuit courts have split on this issue. The Fifth Circuit in Clark v. Quarterman, 457 F.3d 441, 444 (5th Cir.2006), held that "the question of whether [a habeas petitioner] suffers from significantly subaverage intellectual functioning is a question of fact, and not a mixed question of law and fact...." Id. Recently, however, the Fourth Circuit applied the test used in § 2254(d)(1) without expressly adopting it. See Green v. Johnson, 515 F.3d 290, 300 (4th Cir.2008)(finding that Supreme Court of Virginia correctly applied Atkins and thus its opinion was not " 'contrary to' clearly established federal law .").

While the Sixth Circuit has yet to adjudicate whether a state court finding regarding a habeas petitioner's mental retardation is a question of pure fact under § 2254(d)(2), that Court has held that the issue of whether a petitioner is competent to stand trial is a factual question. In Mackey v. Dutton, 217 F.3d 399, 413 (6th Cir.2000), the Sixth Circuit, contrary to its prior findings, held " § 2254(d)'s presumption of correctness applies to a trial court's competency determination." Id. Although the Mackey court noted it previously had held in Cremeans v. Chapleau, 62 F.3d 167 (6th Cir.1995), that competency determinations are mixed questions of law and fact, it concluded that the subsequent United States Supreme Court holding in Thompson v. Keohane, 516 U.S. 99, 111, 116 S.Ct. 457, 133 L.Ed.2d 383 (1995), superceded the Cremeans holding. Id.

Ninth Circuit Dissent Condemns Split from Seventh Circuit Cases Holding Sale of Property Ends Endorsement of Religion

Per Buono v. Kempthorne, 527 F.3d 758 (9th Cir. May 14, 2008) (O'Scannlain, J., dissenting):

Buono IV squarely contradicts two Seventh Circuit opinions holding that "[a]bsent unusual circumstances, a sale of real property is an effective way for a public body to end its inappropriate endorsement of religion." Freedom from Religion Found., Inc. v. City of Marshfield, 203 F.3d 487, 491 (7th Cir.2000) (upholding the sale of a portion of a municipal park on which stood a statue of Jesus with arms extended); see also Mercier v. Fraternal Order of Eagles, 395 F.3d 693, 702-03 (7th Cir.2005) (upholding the sale of a portion of a municipal park with monument of Ten Commandments). The Seventh Circuit properly applied the principle that once publicly-owned land is transferred to a private party, government action ceases, and the Establishment Clause violation necessarily goes with it. Marshfield, 203 F.3d at 491 ("Because of the difference in the way we treat private speech and public speech, the determination of whom we should impute speech onto is critical.").

…

Nevertheless, the Buono IV opinion splits from the Seventh Circuit's rule and from binding Supreme Court precedent by creating an "unusual circumstances" test that extends well beyond the limited circumstances in which state action persists.

…

Buono IV also splits from the Seventh Circuit on a second, equally important issue. After holding that the government failed the Lynch endorsement test by inadequately distancing itself from the Sunrise Rock memorial, the opinion upholds a remedy compelling the VFW to sacrifice its private rights in Sunrise Rock to cure the government's constitutional violation. Buono IV, 502 F.3d at 1085-86; see also Buono II, 371 F.3d at 548-49 (discussing Lynch v. Donnelly, 465 U.S. 668, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984)).

. . .

By holding that a private citizen's rights may be infringed simply because his land was publicly owned in the past, or because it presently sits next to publicly-owned land, or because a hypothetical viewer might mistakenly confuse it with such land, the Buono IV opinion recklessly splits from the Seventh Circuit and announces a broad and unprecedented rule that should not be allowed to stand.

8th Cir. Concurrence Notes Split Re "Multi-Factor" Approach to Determination of Prior Conviction's "Similarity" to Offense in Criminal History Statute

Per U.S. v. Leon-Alvarez, 527 F.3d 732 (8th Cir. Jun 10, 2008) (NO. 07-2146):

BRIGHT, Circuit Judge, concurring.

In adhering to the "elements" or "essential characteristics" approach to determine whether a prior conviction has the requisite similarity to an offense in § 4A1.2(c), we specifically rejected the multi-factor approach employed by the Second and Fifth Circuits:

We thus decline Borer's suggestion that we adopt a multi-factor approach championed by the Fifth Circuit and others, which also considers the underlying facts of the defendant's offense, as well as such matters as a "comparison of punishments imposed for the listed and unlisted offenses, the perceived seriousness of the offense as indicated by the level of punishment, ... the level of culpability involved, and the degree to which the commission of the offense indicates a likelihood of recurring criminal conduct." United States v. Hardeman, 933 F.2d 278, 281 (5th Cir.1991); see also United States v. Martinez-Santos, 184 F.3d 196, 205-06 (2d Cir.1999); United States v. Booker, 71 F.3d 685, 689 (7th Cir.1995). We share the concern of the Fourth Circuit that some of the factors used in these multi-factor tests are vague, subjective, or lacking in unifying principle, such that they "leave the law indeterminate." See Harris, 128 F.3d at 854-55.

Having compared the Second and Fifth Circuit's multi-factor approach with our own, I consider the multi-factor approach to be the fairer method of determining whether a prior conviction is similar to an offense listed in § 4A1.2(c). Criminal history calculations can greatly affect a defendant's sentence, as this case aptly illustrates. Eventually, the circuits' split should be resolved.

Second Circuit Notes Split Re Whether Duplicative Aggravating Factors Are Unconstitutional

Per U.S. v. Fell, --- F.3d ----, 2008 WL 2552863 (2d Cir. June 27, 2008):

Three years after the Tenth Circuit's decision in McCullah, the issue of duplicative aggravating factors was considered by the Supreme Court in Jones v. United States, 527 U.S. 373 (1999), a case that reviewed a Fifth Circuit decision applying McCullah. The Fifth Circuit had found that two of the aggravating factors charged by the government were unconstitutionally duplicative. The Supreme Court declined to decide whether the Tenth Circuit's double-counting theory was either valid or appropriately applied by the Fifth Circuit. Id. at 398-99. . . .^FN26

FN26. Currently, the circuit courts are split as to whether duplicative aggravating factors are unconstitutional and as to the meaning of the Supreme Court's decision in Jones. The Fourth and Ninth Circuits have aligned with the Tenth Circuit and adopted their own variations of the rule in McCullah. See Allen v. Woodford, 395 F.3d 979, 1012-13 (9th Cir.2005) (finding that it was unconstitutional for the court and the prosecutor to present the defendant's prior crimes as the heart of three different aggravating factors); United States v. Tipton, 90 F.3d 861, 900 (4th Cir.1996) (“We agree with the McCullah court that ... a submission ... that permits and results in cumulative findings of more than one of the [statutory aggravating factors] is constitutional error.”). In contrast, the Eighth Circuit has rejected the duplicative aggravating factor theory when applied to the FDPA, see Purkey, 428 F.3d at 762, and the Fifth Circuit has withdrawn its support of the double-counting theory in light of Jones, see United States v. Robinson, 367 F.3d 278, 292-93 (5th Cir.2004) (“Although our case law once [supported the theory], the Supreme Court recently admonished that it does not support that theory of review.”)

D. Haw. Notes Circuit Split Re Court Jurisdiction over Settlement Agreements Reached Prior to EEOC Involvement

Per Munoz v. England, --- F.Supp.2d ----, 2008 WL 723596 (D. Haw. Mar 18, 2008):

The court recognizes the circuit split regarding whether courts have jurisdiction to enforce private employer (as opposed to federal agency) settlement agreements reached prior to EEOC involvement, i.e., "predetermination settlement agreements." See Lindstrom v. United States, 510 F.3d 1191, 1195 n. 5 (10th Cir.2007) (collecting cases); Kraft v. Johanns, 2007 WL 2212890, at * 13 (D.N.D. Jul.31, 2007) (same). The Ninth Circuit has determined that in the private sector, "[g]enuine investigation, reasonable cause determination and conciliation are jurisdictional conditions precedent to suit...." E.E.O.C. v. Pierce Packing Co., 669 F.2d 605, 608 (9th Cir.1982); see also Cook v. City of Pomona, 884 F.Supp. 1457, 1462-63 (C.D.Cal.1995) (applying Pierce Packing Co. to find that an action seeking enforcement of a settlement agreement between two private parties was not brought under Title VII, but was rather "merely an action to enforce a private settlement agreement" governed by state law).

M.D. Ala. Addresses Split Among Circuits Re Requirement of ERISA That Qualified Domestic Relations Order Be Received Before Death

Per R.A.F. ex rel. Woodall v. Southern Co. Pension Plan, 2008 WL 2397391 (M.D. Ala. Jun 10, 2008):

The defendants claim the divorce decree does not qualify as a QDRO because it forces the Plan to pay benefits not otherwise provided under the Plan. The defendants claim that under the Plan, when a participant dies single without a QDRO in place, all benefits end. Because there was no QDRO on file when Fondren died, the Plan cannot pay any benefits. The Eleventh Circuit has not addressed whether ERISA requires a party to qualify a QDRO prior to the death of a participant, and there is a circuit split on this issue. See Jayne E. Zanglein & Susan Stable, ERISA Litigation 887-88 (2d ed.2005). Some courts have required a party to qualify a QDRO before a participant's death. See Samaroo v. Samaroo, 193 F.3d 185, 191 (3d Cir.1999) (holding that a QDRO must be qualified prior to a participant's death because "successful operation of a defined benefit plan requires the plan's liabilities be ascertainable as of particular dates"); Guzman v. Commonwealth Edison Co., No. 99-582, 2000 WL 1898846, at *3 (N.D.Ill.Dec.28, 2000) (stating that "[c]ourts have routinely concluded that rights to survivor's benefits are fixed a[t] the participant's death, and a valid QDRO cannot be entered after the participant's death that would expand the liability of the Plan"). Others have found ERISA contains no such requirement. See Patton v. Denver Post Corp., 326 F.3d 1148, 1153 (10th Cir.2003) (allowing for a nunc pro tunc order); Hogan v. Raytheon, Co., 302 F.3d 854, 857 (8th Cir.2002) (holding that a domestic relations order could be qualified posthumously); Trs. of Dirs. Guild of Am.-Producer Pension Benefits Plans v. Tise, 234 F.3d 415, 421-23, amended, 255 F.3d 661 (9th Cir.2000) (finding that "[b]ecause a QDRO only renders enforceable an already-existing interest, there is no conceptual reason why a QDRO must be obtained before the plan participant's benefits become payable on account of his retirement or death"). In the absence of Eleventh Circuit authority, the court assumes here that ERISA does not require a QDRO to be received prior to a participant's death.

Second Circuit Creates Split Re Statutory Construction of the "Except" Clause of 18 USC s. 924(c)(1)(A)

Per United States v. Whitley, --- F.3d ----, 2008 WL 2405707 (2d Cir. Jun 16, 2008):

Finally, the Government points out that the Fourth, Sixth, and Eighth Circuits have declined to read the "except" clause literally, see United States v. Studifin, 240 F.3d 415, 423 (4th Cir.2001); Jolivette, 257 F.3d at 587 (Sixth Circuit); Alaniz, 235 F.3d at 389 (Eighth Circuit), as have the Fifth and Sixth Circuits in non-precedential decisions, see Collins, 205 Fed.Appx. at 198 (Fifth Circuit); United States v. Baldwin, 41 Fed.Appx. 713, 715 (6th Cir.2002).

Although we hesitate to precipitate a circuit split, we conclude that there are substantial grounds for doing so with respect to the interpretation of the "except" clause. First, we have repeatedly been instructed to give statutes a literal reading and apply the plain meaning of the words Congress has used. See, e.g., Connecticut National Bank v. Germain, 503 U.S. 249, 253-54, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992); Central Trust Co. v. Official Creditors' Committee of Geiger Enterprises, Inc., 454 U.S. 354, 359-60, 102 S.Ct. 695, 70 L.Ed.2d 542 (1982); Rubin v. United States, 449 U.S. 424, 430, 101 S.Ct. 698, 66 L.Ed.2d 633 (1981); Caminetti v. United States, 242 U.S. 470, 485, 37 S.Ct. 192, 61 L.Ed. 442 (1917).

Read literally, as we believe the "except" clause of subsection 924(c)(1)(A) should be, the clause exempts Whitley from the consecutive ten-year minimum sentence for discharging a firearm because he is subject to the higher fifteen-year minimum sentence provided by section 924(e). The case must therefore be remanded for resentencing.