Latest 2 Cases: Avitso v. Barr (Civil Rights), United States v. Roberts (Constitutional Law)

Incorrigibility of the Juvenile Offender

SHERRY F. COLB

Cornell law professor Sherry F. Colb comments on a case the U.S. Supreme Court will consider this term that presents the question whether the Eighth Amendment ban on cruel and unusual punishment prohibits sentencing a juvenile offender to life without the possibility of parole. Colb considers the wisdom and constitutionality of imposing such a sentence on a person who was under 18 at the time of his crime.

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Avitso v. Barr

Docket: 20-1117

Opinion Date: September 22, 2020

Judge: James B. Loken

Areas of Law: Civil Rights, Constitutional Law, Immigration Law

Avitso, a citizen of Togo, entered the U.S. as a student in 2004 and married a U.S. citizen. In 2011, USCIS denied a Petition for Alien Relative filed by Avitso’s wife and an application for adjustment of status filed by Avitso, concluding they had entered into a fraudulent marriage to procure immigration benefits, which made Avitso removable, 8 U.S.C. 1182(a)(6)(C)(i), 1227(a)(1)(A). Notice of removal proceedings was mailed to Avitso at the address where USCIS investigators had been told he resided. In 2012, DHS mailed notice to a different address. The immigration court also mailed notice; it was returned, marked “moved left no address.” Avitso failed to appear. The IJ entered a removal order. In 2019, remarried and represented by new counsel, Avitso moved to reopen, alleging that he “did not personally receive" notice but a copy was forwarded to him by his then-attorney. The motion cited ineffective assistance of counsel. The IJ denied the motion, concluding Avitso failed to meet case law requirements to establish ineffective assistance and even if those requirements were satisfied, the outcome would not have been different. The BIA dismissed Avitso’s appeal. The Eighth Circuit denied a petition for review. Avitso’s motion to reopen included no evidence that he notified former counsel of his ineffective assistance claims, provided her an opportunity to respond, or filed a complaint with disciplinary authorities. The BIA enforces those requirements to discourage baseless allegations and deter meritless claims.

United States v. Roberts

Docket: 19-3249

Opinion Date: September 22, 2020

Judge: James B. Loken

Areas of Law: Constitutional Law, Criminal Law

Following a shooting, police went to Roberts’s apartment to execute a search warrant on the residence and a Durango vehicle. Officers found firearms. An officer stated Roberts was not under arrest. Roberts admitted he brought the guns into the residence from the Durango, where “Mike” had left them. The officers noted possible federal firearm charges because they knew Roberts was a felon. The officers did not arrest Roberts, but read his Miranda rights, despite Roberts saying “you don’t have to.” Officers asked if Roberts wanted to continue to talk. Roberts replied, “Not really,” but continued the interview. He admitted driving a man to the crime scene on the night of the shooting in the Durango. Roberts was arrested hours later. Roberts entered a conditional guilty plea to being a felon in possession of a firearm, reserving the right to appeal the denial of his motion to suppress. The Eighth Circuit affirmed, finding that the affidavit supplied with the search warrant application gave the judge probable cause to believe that Roberts drove the vehicle associated with a shooting on the night of the shooting and that evidence of the crime would be found in the truck or his residence. Roberts’s incriminating statements before receiving Miranda warnings were admissible; he was not in custody and the statements were voluntary. Roberts's prior Illinois and Iowa convictions were controlled substance offenses for purposes of sentencing under Guidelines 4B1.1(a).