Skip navigation
Prisoner Education Guide

Articles by Derek Gilna

Ninth Circuit agrees with Defendant and Reverses Contempt Conviction

By Derek Gilna

Although agreeing with the government that the defendant, James Kimsey was "no saint," the Ninth Circuit Court of Appeals agreed with Kimsey that he could not be held in contempt for failure to obey a "rule" prohibiting the unauthorized practice of law that "cannot serve as a predicate for criminal convictions."

James Kimsey was found to have assisted Frederick Rizzolo who was involved in a "contentious, scorched-earth lawsuit in which eighteen lawyers bombarded each other and the district court with over 500 pleadings," according to the court's decision. Rizzolo's attorney had already withdrawn when Kimsey began to "ghost-write" pleadings that Rizzolo filed under his own signature as a pro-se litigant. The federal magistrate judge found that Rizzolo "allowed a non-attorney to determine the legal sufficiency of the instruments filed with the Court and relied on Mr. Kimsey's judgment in applying legal knowledge to the specific issues pending in this action." He also issued an order to Kimsey to show cause as to why he should not be held in criminal contempt for engaging in the unlawful practice of law under 18 U.S.C. Section 402.

The Appellate court reversed the finding of contempt ...

Mississippi Supreme Court Denies Equity Court Review of Death Penalty Cases

By Derek Gilna

The complaint of sixteen death-row inmates in Mississippi which sought Chancery Court review of the adequacy of their legal representation has been denied by the Mississippi Supreme Court for lack of jurisdiction based upon the Uniform Post-Conviction Collateral Relief Act (UPCCRA).

The prisoner claims revolved around the alleged deficient performance of the Mississippi Office of Capital Post-Conviction Counsel (MOCPCC) that deprived them of their right to obtain meaningful state post-conviction and federal habeas corpus review of their convictions and death sentences. They sought that the chancery court enjoin the State from opposing the filing of a successive petition for post-conviction relief in each prisoner's case, from requesting execution dates for any of them, and from opposing a stay of execution in any case involving one of the inmates.

The chancery court did not agree, ruling that it lacked subject matter jurisdiction over the claims, and that UPCCRA claims should be decided under that statute. The Supreme Court agreed, noting that the "chancery court's power to grant injunctive relief rests upon the inadequacy of a remedy at law. A-1 Pallet Co. v. City of Jackson, 40 So. 3d 563 (Miss. 2010).

The Supreme Court stated that ...

Federal Investigation, Prosecution Targets Indiana Sheriff’s Officers

Several Lake County, Indiana Sheriff’s Department employees were the subject of a federal investigation into a gun-running scheme that resulted in criminal charges.

Lake County Sheriff John Buncich placed six staff members on administrative leave and stripped them of their law enforcement powers in May 2011 after they were served with subpoenas in the investigation. Those employees were Lt. Michael Reilly, Sgt. Joseph R. Kumstar, Capt. Marco Kuyachich and officers Ronald D. Slusser, Edward O. Kabella and Scott Shelhart.

The federal investigation culminated in the September 23, 2011 indictments of Kumstar, Kabella and Slusser on charges that they used their positions with the Sheriff’s Department to buy and sell fully automatic machine guns for personal profit. Kumstar was a former deputy chief, while Slusser was a SWAT officer; both Slusser and Kabella had federal firearms licenses. All three were charged with conspiring to provide false information to a federal firearms licensee, conspiring to defraud an agency of the United States and making false statements under oath on a tax return.

Kumstar, Kabella and Slusser were accused of ordering dozens of machine guns and laser sights from firearms manufacturers, such as H&K, by claiming they were for law ...

Tenth Circuit Voids Albuquerque’s Attempt to Ban Sex Offenders from Libraries

In a case of first impression, on January 20, 2012 the Tenth Circuit Court of Appeals affirmed a district court’s judgment invalidating an ordinance of the City of Albuquerque, New Mexico that prohibited registered sex offenders from entering the City’s public libraries.

The district court had granted summary judgment in favor of a John Doe plaintiff, ruling that the ban “burdened Doe’s fundamental right to receive information under the First Amendment and that the City failed sufficiently to controvert Doe’s contention ... that the ban did not satisfy the time, place, or manner test applicable to restrictions in a designated public forum.”

The Court of Appeals noted that had the City of Albuquerque presented evidence as to the reasons or justifications for the ban, or whether the ban was narrowly tailored to specifically deal with the interest sought to be protected, or whether there was any alternative method for the banned class to obtain information available in libraries, the result might have been different.

Doe filed the lawsuit in response to a March 4, 2008 “Administrative Instruction” that barred all registered sex offenders from using Albuquerque public libraries. The suit, filed in October 2008, alleged violations of ...

Discovery Sanction against New York City Sets Stage for Probable Damages Award in False Imprisonment Suit

By Derek Gilna

In a decision published on December 8, 2009, from an appeal of parts of an order of the Supreme Court, Queens County dated November 28, 2007, which denied their motion to strike defendants' answer pursuant to CPLR. 3126(3), the lower court's order was reversed, the answer stricken, and the matter remitted to the Supreme Court, Queens County, for a hearing of the issue of damages.

The case arose from the arrest of plaintiff Byam for the homicide of Martin Sweeting on September 26, 1993. Byam was acquitted of that charge. His wife and he sued to recover damages for false arrest and malicious prosecution. The plaintiffs have been unsuccessful in obtaining discovery from the defendants, and the court cited their "willful and contumacious conduct... from their repeated failures, over an extended period of time, to comply with discovery orders, together with the inadequate, inconsistent, and unsupported excuses for those failure to disclose."

The discovery sanction, which resulted in the striking of defendants' answer, effectively ends the litigation in the plaintiff's favor, save the hearing on damages. Byam v. City of New York, 68 A.D.3d 798, 890 N.Y.S.2d 612 (2009).

Former Puerto Rican Prisoner Wins Release but Loses § 1983 Action

Former Puerto Rican Prisoner Wins Release but Loses § 1983 Action

By Derek Gilna

Angel Luis Feliciano-Hernandez, sentenced by a Puerto Rican court in 1981 to a "term of perpetual imprisonment for treatment" for a "record of sexual abuse," for a minimum of ten years, finally won his release in 2008.

Shortly thereafter, he filed his 42 U.S.C. § 1983 action, but the Puerto Rican district Court dismissed his complaint. The 1st Circuit affirmed, ruling that the former prisoner failed to satisfy the pleading standard set forth in Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007).

According to the Appellate Court's opinion, the 1st Circuit "focus(ed) on the allegations which are pertinent to whether the individual defendants were ever given or put on adequate notice" of plaintiff's claims. The opinion also stated that although the plaintiff had completed his sentence in 1993, and the Parole Board reviewed his case annually thereafter, nevertheless each year it denied his requests for release.

Since all attempts by the plaintiff to win parole-board relief failed, he filed his petition for habeas corpus in 2007, alleging that he had been rehabilitated ...

6th Circuit Upholds SORNA Conviction Despite Incomplete State "Implementation"

6th Circuit Upholds SORNA Conviction Despite Incomplete State "Implementation"

By Derek Gilna

David Wayne Felts' conviction for failure to register under the Sex Offender Registration Notification Act (SORNA) was upheld by the Sixth Circuit Court of Appeals, which rejected his various arguments which revolved around the question of whether or not a conviction can stand when his home state has not yet fully complied with the implementation of the statute. Unfortunately for the defendant, the Court ruled against him, following the lead of six other circuits in this case of first impression.

According to SORNA, a sex offender has a duty to "register and keep the registration current, in each jurisdiction where the offender resides, where the offender is an employee, and where the offender is a student," 42 U.S.C., Section 16913(a), and "not later than 3 business days after each change of name, residence, employment, or student status to appear in person" to update his registration information. 42 U.S.C. Section 16913(c).

SORNA, passed in 2006, gave the states three years to implement the registration requirements of the act, but Tennessee had failed to complete this process when the defendant was arrested and convicted ...

Former Connecticut Prisoner's ADA and RA Complaint Survives Motion to Dismiss

By Derek Gilna

Former Connecticut state prisoner Richard Rogues' Section 1983 lawsuit for violations of the Americans with Disabilities Act (ADA) and the Rehabilitation Act (RA) has survived a motion to dismiss filed by defendants, including state prison commission officials and officials at Cheshire Correctional Institution (Cheshire) in Connecticut.

The prisoner, who suffered from a myriad of physical and mental disorders affecting his ability to walk, had sued these officials for damages in their personal capacities, and sought to hold them personally responsible, under the legal doctrine of "respondent superior." Defendants' Motion to dismiss averred that the Eleventh Amendment barred the state from being held liable unless it had previously waived its sovereign immunity. The defendants also asserted that the prisoner had failed to exhaust his administrative remedies pursuant to the Prisoner Legal Reform Act (PLRA), 42 U.S.C. Section 1997e(a).

The Connecticut District Court, Judge Hall presiding, ruled that the prisoner's release from state custody mooted his ADA, Section 1983, and RA claims for injunctive relief; that the Eleventh Amendment barred the count against the former Connecticut Commissioner of Correction in his official capacity; but further stated that the fact issues included in the complaint precluded ...

Minnesota District Court Directs BOP to Reconsider Prisoner’s Denial of Halfway House Placement

By Derek Gilna

In a pre-"Second Chance Act" case, Judge Davis of the U.S. District Court, District of Minnesota, has granted prisoner Steven Allen Knish's § 2241 Petition, his motion to alter or amend his judgment, and ordered the Federal Bureau of Prisons (BOP) to "promptly and in good faith reconsider Petitioner for Community Corrections Center (CCC) placement consistent with the policy in place prior to December 2002."

Plaintiff's projected release date was April 9, 2005, and in early February of 2004 he was advised by prison staff that they intended to recommend him for CCC placement on February 6, 2005. Petitioner disagreed with the decision to assign him to a halfway house for only the last ten percent of his sentence, arguing that the BOP had a longstanding policy of placing federal prisoners in halfway houses prior to the last ten percent of their sentence. According to 18 U.S. § 3621(b), the BOP has discretion to designate a prisoner or transfer a prisoner whenever it deems it appropriate. In 2002, the Attorney General issued a memorandum that announced that the BOP would no longer transfer (prisoners) to pre-release community confinement for any longer than a ...

Iowa Supreme Court Refuses Miranda Protection for Confession to Case Worker

By Derek Gilna

The Iowa Supreme Court has affirmed a lower-court decision denying defendant Jess John Pearson's Motion to Suppress, based upon the Miranda case for a voluntary confession given to his social worker, who interviewed him after he had committed a crime. In so ruling, the court noted that the interview by his eight-year caseworker, who was not even aware of the crime before the unsolicited confession, did not constitute an arrest or restraint situation or one in which he would have felt some form of coercion. The ruling also constituted a case of first impression for the Iowa court in light of the case of J.D.B. v. North Carolina, 564 U.S., (2011), regarding custody issues of a thirteen-year old suspect.

Pearson at the time of his arrest was a runaway from the Bremwood Residential Treatment Center in Waverly, who proceeded to rob and beat an elderly, disabled man in his home with a cast-iron frying pan. When apprehended that same day by the Waterloo police, he refused to waive his Miranda rights and said he would not talk before he returned to Bremwood and spoke with his lawyer. The next morning, however, he promptly ...

 

Advertise here

 



 

Disciplinary Self-Help Litigation Manual

 



 

Federal Prison Handbook

 



 


 

Disciplinary Self-Help Litigation Manual