John T. Floyd Law Firm
Board Certified Houston Criminal Lawyer
“Serious Criminal Defense Throughout Texas”
Board Certified Criminal Law Specialist
Experienced Criminal Trial Lawyer
Federal And State Criminal Defense
Phone # (713) 224-0101
Toll Free 1-866-374-1327
E-mail jfloyd@JohnTFloyd.com
Top Lawyers: Criminal Defense - 2008, 2009, 2010 HTexas
POST-CONVICTION ISSUES
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POST-CONVICTION ISSUES
April 19, 2012
SCOTUS: MORE INEFFECTIVE ASSISTANCE LITIGATION
Ineffective-Assistance-Of-Trial-Counsel Claims Not Barred From Federal Habeas if Ineffective Counsel at Initial State Habeas Proceeding
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
The U.S. Supreme Court handed down its third major decision this term dealing with ineffective assistance of counsel, Martinez v. Ryan. (The other two decisions can be found here and here.) Martinez deals with counsel who failed to take specific steps to protect a state prisoner’s right to present an ineffective assistance counsel claim in state post-conviction proceedings—a professional dereliction that procedurally barred the state prisoner from having the claim heard in federal court. More...
April 11, 2012
GIDEON’S GREAT GRANDCHILDREN
Supreme Court Solidifies Right to Effective Assistance of Counsel during Plea Bargaining
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
There are two primary movers in our criminal justice system: criminal prosecution and criminal defense. We have posted many pieces on this blog dealing with prosecutorial misconduct. We have called it a blight on our criminal justice system. While we have touched upon specific instances where a criminal defense attorney either did or failed to do something that resulted in a finding effective assistance by the courts, we have not approached the subject as the “dirty little secret” on our side of the adversarial criminal justice process. We will now. More...
December 17, 2011
THE IMPACT OF PINHOLSTER ON NEWLY-DISCOVERED EVIDENCE
AND BRADY VIOLATIONS
Federal Habeas Claims of “New Evidence” of Undisclosed Exculpatory Evidence Should be Remanded to State Courts
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
In January 1982, Scott Lynn Pinholster, a California native, was an Aryan Brotherhood-type who, along with two like-minded cohorts, went to the home of a local drug dealer named Michael Kumar. The drug dealer was not at home when the Neo-Nazi trio arrived so they began to ransack the residence in search of drugs and money. At this inopportune time, two of Kumar’s friends, Thomas Johnson and Robert Beckett, arrived at the drug dealer’s home where they confronted the burglars. That confrontation led to Pinholster and his cohorts brutally beating and repeatedly stabbing Johnson and Beckett until they were dead. More...
December 1, 2011
BRADY VIOLATIONS IN WHITE COLLAR, CORRUPTION CONVICTIONS
Serious, Widespread and Intentional Concealment of Evidence by DOJ and US Attorneys
By: Houston Criminal lawyer John T. Floyd and Paralegal Billy Sinclair
Former Alaska lawmaker, Vic Kohring, has entered a guilty plea admitting he accepted bribes from an “oil man” for his help in keeping taxes low on the Alaskan oil industry. The plea comes after an appellate court tossed out Kohring’s original conviction, along with others convicted in the scandal, after finding that the Government had intentionally withheld evidence in the trials. Kohring’s case documents the years of scandal resulting from official corruption between the oil industry and Alaska’s politicians and the disturbing pattern of misconduct by prosecutors, hell bent on getting the bad guys, that followed. More...
November 10, 2011
DEFENSE ATTORNEY PLACES ACADEMIC INTEREST BEFORE ETHICAL DUTY TO CLIENT
Defense Lawyer Intentionally Failed to Comply with Longstanding Pleading Requirements in Death Penalty Writ
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
It is not our habit, nor is it in our nature, to second guess any strategy employed by a fellow defense attorney, unless that strategy is patently harmful to the client. The Hector Rolando Medina case is such a case—and it indeed begs public exposure. To understand this case we must first discuss the habeas corpus statute involved: Article 11.071, Texas Code of Criminal Procedure (Procedure in Death Penalty Cases), and the case law setting forth longstanding pleading requirements under the statute. A prerequisite to securing habeas corpus relief in a death penalty case requires the applicant to “plead specific facts” which, if proven true, might entitle him to relief. Thus, the initial burden rest with the habeas applicant to file a fact-specific petition, which raises issue(s) of constitutional magnitude; in other words, a constitutional violation which has harmed the applicant. more...
August 31, 2011
WHAT IS THE PURPOSE OF FEDERAL SENTENCING?
Tapia v. U.S.: Need for Rehabilitation not Proper Factor in Determining Sentence
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
The concept of penal rehabilitation began at the end of the 19th century in this country. Historically criminal sentences in America have been imposed for four reasons: deterrence, retribution, incapacitation, and rehabilitation. Although rehabilitation has been a subject of controversy as a reason for punishment, the State of Texas adopted it as a reason to punish through criminal sentencing. The U.S. Congress, however, has long dispensed with rehabilitation as a basis for criminal sentencing in federal courts. This was evidenced by a recent U.S. Supreme Court decision, Tapia v. United States, which declared that a federal district court judge abused his discretion by lengthening a defendant’s sentence in order to fulfill rehabilitation objectives. more...
July 24, 2010
PSR OBJECTIONS OVER PLAIN ERROR DOCTRINE
Criminal Defense Attorneys Must File Objections to Pre-Sentence Report in Federal Criminal Cases to Protect Appellate Rights
By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair
The United States Congress, with the Sentencing Reform Act of 1984, established the U.S. Sentencing Guidelines. These “Guidelines” not only guide but require U.S. District Court judges to consider all the sentencing factors Congress set forth in 18 U.S.C. § 3553(a) before imposing sentence in criminal cases. The U.S. Supreme Court in a series of cases has made it abundantly clear that the Guidelines are not mandatory but rather advisory in nature—a guide for the judge to utilize in crafting the appropriate sentence. more...
July 6, 2010
A DEFENSE ATTORNEY’S NARROW MARGIN FOR ERROR
Ineffective Assistance of Counsel: Criminal Defense Lawyer’s Questions about Defendant’s Post Arrest Silence Opens Door to Cross Examination
By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair
Criminal defendants have a Sixth Amendment right to effective assistance of counsel in criminal prosecutions against them. The United States Supreme in 1984 handed down Strickland v. Washington which set forth the constitutional standard a criminal defendant must satisfy in order to establish that he/she was not effectively represented by their attorney. First, the defendant must prove that the defense attorney’s performance “fell below an objective standard of reasonableness,” and, second, the defendant must prove that counsel’s deficient performance so prejudiced his/her defense that the guilty verdict is unreliable and fundamentally unfair. more...
July 14, 2009
THE DIFFICULTIES FACED IN INSANITY CASES
Lawyer Ineffective for Failure to Investigate, Request Medical Records Indicating Possible Insanity; (Be careful what you ask for…)
By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair
Spencer Ojeifo Imoudu was not a normal individual. In August 2005 the Bexar County resident stole a vehicle parked outside a pawn shop. The vehicle belonged to the owner of the pawn shop. He, and another witness, saw Imoudu get in the vehicle and drive off. The two men raced to the witness’s truck and sped away after Imoudu. During the high speed chase, Imoudu turned into oncoming traffic, crashing head on into an oncoming vehicle. The driver of the other vehicle was killed. Imoudu was arrested and charged with felony murder and manslaughter. He eventually pled guilty to the two charges in exchange for a 17-year sentence with an affirmative finding of a deadly weapon. 1/ more...
November 23, 2008
RIGHT TO EXPUNCTION OF CRIMINAL RECORD UNDER § 55.01
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
Criminal Defense Lawyers often get call from potential clients wanting their criminal records expunged/destroyed. However, the expunction statute in Texas is very specific and applies only to records of arrest when a case against a defendant is dismissed with no probation, no billed by a grand jury, acquitted by the trial court or the court of criminal appeals or the result of identity theft. more...
December 12, 2008
PROBATION ELIGIBILITY: NEW LIMITATIONS
By: Houston Criminal Defense Attorney John Floyd and Paralegal Billy Sinclair
Community supervision, or probation as most people know it, has been defined by federal courts as an “imprisonment substitute” because the criminal sentence is not served in a penal institution. See: United States v. Elkins, 176 F.3d 1016, 1020 (7th Cir. 1999). more...
October 24, 2008
THE JUDICIAL WARS INVOKED BY CRACK SENTENCING
By: Criminal Houston Criminal Defense Attorney John T. Floyd and Senior Paralegal Billy Sinclair
Under the Sentencing Reform Act of 1984, a federal district court judge must consider each of the factors prescribed in 18 U.S.C. § 3553(a) when imposing an appropriate criminal sentence. The § 3553 factors are: more...
August 28, 2008
FEDERAL SENTENCING: DISCRETION MAKES A COMBACK
By: Criminal Houston Criminal Defense Attorney John T. Floyd and Senior Paralegal Billy Sinclair
Before 1984, criminal sentencing in federal courts was heavily criticized because of the disparate sentences imposed for similar conduct and because of the uncertainty as to the length of time offenders would actually serve in prison. But Congress changed all that with the Sentencing Reform Act of 1984. The Act was designed to produce a more even-handed determinate sentencing scheme. To accomplish this legislative objective, the Act imposed an absolute duty on federal district court judges to consider each of the seven sentencing factors set forth in 18 U.S.C. § 3553(a), required federal judges to accept the U.S. Sentencing Guidelines as mandatory, and abolished the federal parole system as well. The end result of the Act, however, quickly proved to be even more draconian than hodgepodge sentencing practices it had replaced. Federal prison sentences grew longer because of the mandatory Guidelines, and because of the abolition of parole, longer stays in federal prison became the order of the day. more...
December 19. 2007
SUPREME COURT CRACKS BARRIER ON CRACK SENTENCING
By: Criminal Houston Criminal Defense Attorney John T. Floyd and Senior Paralegal Billy Sinclair
The United States Supreme Court on December 10, 2007 issued a ruling in a case that will effectively reduce some of the crack cocaine sentences for nearly twenty thousand federal inmates – 85 percent of them African-American. See: Kimbrough v. United States, No. 06-6330 (2007). The following day the U.S. Sentencing Commission voted to allow these inmates to immediately apply for sentence reductions. Slightly more than 2500 of them will be eligible for early release over the next year. More...
October 17, 2007
SUPREME COURT TO DECIDE THE 100:1 CRACK/POWDER COCAINE RATIO
By: Criminal Houston Criminal Defense Attorney John T. Floyd and Senior Paralegal Billy Sinclair
Derrick Kimbrough was arrested in Norfolk, Virginia on two offenses involving of possession crack and powder cocaine as well as a single firearm offense. State authorities dismissed their case in favor of federal prosecution. The federal drug offenses exposed Kimbrough to a sentence range of 10 years to life imprisonment and a mandatory sentence range of 5 years to life imprisonment on the firearm offense to be served consecutively. More...
October 9, 2007
CRIMINAL ATTORNEYS STILL WATCHING THE U.S. SUPREME COURT, DECISIONS EFFECTING SENTENCING GUIDELINES
By: Criminal Houston Criminal Defense Attorney John T. Floyd and Senior Paralegal Billy Sinclair
While the U.S. Supreme Court’s decision in Booker gave many defense attorneys hope that the often draconian Sentencing Guidelines would soon be pronounced dead, they still remain largely intact. Judges must still consult and consider the guidelines and, with Rita’s “presumption of reasonable” standard, any sentence they hand down within the guidelines will most likely withstand appellate review. However, the Supreme Court has created a real opening for “thorough adversarial testing” of the sentencing procedure by allowing judges to depart from the guidelines if given good reason under the factors set forth in 18 U.S.C. § 3553. Defense attorneys must take this opportunity to effectively present their clients’ best case at sentencing before the federal courts. After all, criminal defendants and their offenses of conviction are unique and individual and should be treated as such by the courts when assessing a just punishment. More...
July 17, 2007
THE CRACK COCAINE LEGACY: PUINISHMENT DISPARITY IN THE FEDERAL COURTS
By: Criminal Houston Criminal Defense Attorney John T. Floyd and Senior Paralegal Billy Sinclair
In 1986 University of Maryland basketball sensation Len Bias was found dead from a cocaine overdose. Despite toxicology reports showing that the drug overdose resulted from powder cocaine, media reports connected the basketball star’s death to a “crack” cocaine overdose and continued to spread that misperception. More...
July 2, 2007
THE SLIPPERY SLOPE OF POST-CONVICTION APPEALS
By: Criminal Houston Criminal Defense Attorney John T. Floyd and Senior Paralegal Billy Sinclair
The first, and perhaps most important, statute a criminal defendant should become aware of following an arrest is Rule 103 of the Texas Rules of Evidence. Rule 103(a)(1) requires that an objection be made to any pretrial, trial or post-trial error in order for it to be heard on direct appeal. A criminal defendant should stress to his attorney, whether appointed or retained, that he/she expects the attorney to object to any adverse rulings made by the trial court throughout the criminal proceedings against the defendant. While some of the objections clearly will not have a basis in law, the defense attorney should nonetheless make the objection, research the issue, and be prepared to present it on direct appeal. The failure to object by a defense attorney will haunt a criminal defendant throughout the post-conviction process.
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