Seventh Circuit – Page 7 – Marquette University Law School Faculty Blog

Defendant Can Challenge Attorney’s Failure to Appeal Despite 2255 Waiver, Seventh Circuit Says

Post author:Michael M. O'Hear
Post published:September 17, 2012
Post category:Criminal Law & Process Federal Criminal Law & Process Public Seventh Circuit

Charged in federal court with drug trafficking, Fred Dowell decided to enter into a plea agreement with the government. The deal included various stipulations as to his sentence, but reserved for Dowell the right to challenge the government’s contention that he should be sentenced as a career offender under the federal sentencing guidelines. Assuming the stipulations were accepted by the sentencing judge, Dowell waived his right to appeal the sentence, except that he expressly reserved the right to appeal an adverse career offender determination. Dowell also surrendered his right to mount a collateral attack on the sentence under 28 U.S.C. §2255.

Dowell was, in fact, sentenced as a career offender. By his account, he instructed his lawyer to appeal this decision, as he had reserved the right to do. No appeal was filed. By the time Dowell realized this, it was already too late for an appeal to be taken. Accordingly, he tried a §2255 motion in the district court, contending that his lawyer’s failure to appeal constituted ineffective assistance of counsel in violation of the Sixth Amendment. Sorry, said the district court, but you waived your rights under §2255 in the plea agreement.

Earlier today, the Seventh Circuit reversed in Dowell v. United States (No. 10-2912).

Seventh Circuit to Form 19: Drop Dead!

Post author:Bruce E. Boyden
Post published:August 30, 2012
Post category:Intellectual Property Law Public Seventh Circuit

Last week I bemoaned how the Seventh Circuit had thoroughly botched the already confusing state of affairs that is the elements of a prima facie copyright infringement claim. But as a bonus, the Peters v. West opinion also had troubling things to say about what is now required to successfully plead a copyright infringement claim under the new “plausibility” regime announced by the Supreme Court in Twombly and Iqbal.

As a refresher, here’s how the Peters court defined the element of infringement (the other element for a claim of copyright infringement being ownership of a valid and registered copyright):

Fundamentally, proving the basic tort of infringement simply requires the plaintiff to show that the defendant had an actual opportunity to copy the original (this is because independent creation is a defense to copyright infringement), and that the two works share enough unique features to give rise to a breach of the duty not to copy another’s work.

Note that the court is discussing what the plaintiff must ultimately prove, which even after Twombly and Iqbal is not necessarily what the plaintiff must allege. Swierkiewicz v. Sorema, which distinguished between those two, is still good law; Iqbal simply requires that the plaintiff allege enough to make a claim plausible, which may or may not require pleading specific facts. Nevertheless, many courts even pre-Twombly have been requiring plaintiffs to march through the elements in their complaints, and now post-Iqbal, each of those elements must be “plausible.”

So what does a plaintiff, according to the Seventh Circuit, now have to plead in order to plausibly allege infringement?

Why Milwaukee’s Parking Enforcement System Might Be Unconstitutional

Post author:Ryan Scoville
Post published:August 27, 2012
Post category:Constitutional Law Milwaukee Public Seventh Circuit

When it comes to parking enforcement, the City of Milwaukee has a problem. Local media have concluded from interviews and public records that the City issues parking tickets without paying close attention to whether they are warranted. In 2011 alone, the City reportedly canceled over 38,000 parking tickets, often because they were plainly unjustified. Nearly 8,000 tickets, for example, were issued for “expired” parking meters that in fact had not expired. Given personal experience, I have little doubt that these figures are accurate.

The extremely high number of unwarranted tickets is not an accident. Instead, it appears to be the result of a policy to issue tickets indiscriminately for the singular purpose of revenue enhancement. The City’s manager for parking enforcement practically admits as much; he recently told a local news station that the policy “is to issue the citation and straighten it out later.” Media coverage suggests that the City implements this policy through an informal quota system: Several employees of the Department of Public Works have revealed that supervisors expect enforcement personnel to issue certain numbers of tickets per shift for specified areas, and that supervisors punish those who fail to meet quotas by handing out undesirable shift hours. In other words, enforcement personnel are under the gun; unless they want to work at 3:00 in the morning, they have to issue bushels of tickets. Because this system appears to give credit even for unjustified citations, there is little incentive for personnel to make sure that they issue citations only when deserved. So the high error rate is no surprise. The effect is to impose upon thousands of law-abiding residents the burden of either paying a fine or establishing the absence of a violation. For many, the hassle is worse than the dollar value of the fine.