Law and Justice

Posts Tagged ‘Virginia’

Holland v. Florida, 2010 U.S. LEXIS 4946 (U.S. June 14, 2010)

Factual Background:

  A death row inmate has filed a writ of habeas corpus approximately five weeks late under the 1-year statute of limitations set forth in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) 28 U.S.C. § 2244(d),which the District Court denied pointing one year statute of limitation.

  The record facts reveal, inter alia, that Holland’s court-appointed attorney, Bradley Collins, had failed to file a timely federal petition, despite Holland’s many letters emphasizing the importance of doing so; that Collins apparently did not do the research necessary to find out the proper filing date, despite the fact that Holland had identified the applicable legal rules for him; that Collins failed to inform Holland in a timely manner that the State Supreme Court had decided his case, despite Holland’s many pleas for that information; and that Collins failed to communicate with Holland over a period of years, despite Holland’s pleas for responses  to his letters. Meanwhile, Holland repeatedly requested that the state courts and the Florida bar remove Collins from his case, which has been denied by the court responding that Holland could not file any pro se papers with the court while he was represented by counsel, including papers seeking new counsel. Based on these and other record facts, Holland asked the Federal District Court to toll the AEDPA limitations period for equitable reasons. It refused, holding that he had not demonstrated the due diligence necessary to invoke equitable tolling. Affirming, the Eleventh Circuit held that, regardless of diligence, Holland’s case did not constitute “extraordinary circumstances.” Specifically, it held that when a petitioner seeks to excuse a late filing based on his attorney’s unprofessional conduct, that conduct, even if grossly negligent, cannot justify equitable tolling absent proof of bad faith, dishonesty, divided loyalty, mental impairment, or the like.

Supreme Court’s Opinion:
  The Court first decided that timeliness provision in the federal habeas corpus statute is subject to equitable tolling.

  Several considerations support the Court’s holding. First, because AEDPA’s “statute of limitations defense . . . is not ‘jurisdictional,’” Day v. McDonough, 547 U.S. 198, 205, 213, 126 S. Ct. 1675, 164 L. Ed. 2d 376, it is subject to a “rebuttable presumption” in favor “of equitable tolling,” Irwin v. Department of Veterans Affairs, 498 U.S. 89, 95-96, 111 S. Ct. 453, 112 L. Ed. 2d 435. The Eleventh Circuit’s per se standard is too rigid. A “petitioner” is “entitled to equitable tolling” if he shows “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way” and prevented timely filing.

Incoming search terms:

By hiring a Virginia criminal lawyer you will have someone on your side who has the expertise and knowledge of criminal law to handle your case with the aim of achieving the best possible outcome.  It is important to note though that not every criminal lawyer will have the necessary expertise to handle your particular case as criminal law involves many different sections and categories which deal with different types of case.

When you begin looking for a Virginia criminal lawyer to represent you, you will need to understand the nature of the charges against you and the area of criminal law into which they fall.  Once you have determined this you will be able to look for lawyers who specialize in your particular case.

Anyone who is charged with a criminal offense such as abduction, murder, violence, theft and rape will need to look for a criminal lawyer who specializes in these cases.  Once you make contact with a criminal lawyer they will arrange to meet with you to discuss your case and to discover more details about it.  From the information you provide they will be able to advise on the possible outcome of your case, a possible defense strategy and how to proceed further.  Once you make a decision to hire a lawyer they will set to work to research your case and put your defense together.  This will entail finding evidence, researching the law as it relates to your case and submitting papers to the court ahead of your trial.

The role of a Virginia criminal lawyer includes the following steps:

Investigate the case
Obtain warrants for search purposes
Prepare an arrest complaint
Measure inadequacy or assertion
Attend bail or plea hearings
Conduct defense arguments at trial

If you are arrested and charged with a criminal offense in Virginia then you need to find a Virginia criminal lawyer as soon as possible.  Note you need to find a lawyer who practices within the state in which the offense took place and where it will be heard in court.  This is important because each state will set their own laws with regard to criminal matters and although federal law may also play a part, only a lawyer who practices within the state in question will have the knowledge of local laws and procedures in relation to your case.

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On November 5, 2009 , the Supreme Court of Virginia issued a significant opinion concerning tort law in Virginia.  In Kellermann v. McDonough, Record No. 081718 (Va. filed November 5, 2009), the Court expressly held for the first time that “when a parent relinquishes the supervision and care of a child to an adult who agrees to supervise and care for that child, the supervising adult must discharge that duty with reasonable care.”  Id. at 8-9.  The Court ruled that a common law tort action against a husband and wife survived the pleadings stage in a claim which arose out of the death of a 14-year old girl who was staying with them temporarily, and who was killed while riding in a car driven by an unrelated 17-year old boy.

In Kellermann, the plaintiff administrator of an estate filed a wrongful death action against the defendant husband and defendant wife with whom the decedent, who was 14 years old, was staying temporarily.  The defendants had asked the decedent’s parents if the decedent, who had moved with her family to North Carolina previously, could stay with them in Virginia for a day or two.  The defendants’ daughter, a former classmate, was having problems, and the defendants thought that her situation might improve if she spent some time with the decedent.  The decedent’s father drove the decedent to meet the defendant wife and her daughter at a place roughly equidistant from their respective homes in North Carolina and Virginia.  Upon meeting the defendant wife and her daughter, the decedent’s father expressly told the defendant wife that the decedent was not to be driven by inexperienced or young male drivers.  The defendant wife agreed,  and indicated she would take good care of the decedent.

Later that day, the defendant wife dropped off her daughter and the decedent at a mall.  At the mall, the girls met a 17-year old boy who was the defendants’ daughter’s friend, another male friend, and a female friend, and they all attended a movie.  The 17-year old boy had a reputation for “street racing”.  He had been stopped by police previously for speeding in excess of 20 miles per hour over the speed limit, and he may have allowed the defendants’ daughter, who was 14 years old, to drive his car.  After the movie, the defendants’ daughter called her mother and discussed riding home with the 17-year old boy.  The defendant wife either instructed or permitted all three girls to go home with the 17-year old boy.  The decedent and her female friend, however, did not want to ride home with the 17-year old boy.  After learning about the defendant wife’s instructions, the decedent and her female friend separated from the others.  After unsuccessfully trying to reach the female friend’s father, mother, brother and one other person in an effort to find a ride home, the decedent and the female friend reluctantly got into the 17-year old boy’s car.  

The 17-year old boy drove wildly.  The decedent and the female friend begged the 17-year old boy to slow down and let them out.  The decedent sent a text message to a friend in which she said she wanted to go home and get away from the “guys, and that she feared she would die”.  She also said the guys were planning on street racing.  The 17-year old boy ultimately lost control of his car while travelling in excess of 77 miles per hour, skidded off the road, and slammed into a tree.  The decedent was critically injured and died the next day.  At the hospital, the defendant wife repeatedly told the female friend’s parents that she was afraid she would be sued for instructing the girls to go home in the 17-year old boy’s car, in violation of  the decedent’s father’s instructions.  

The trial court sustained a demurrer by the defendants which asserted, among other things, that the defendants owed no duty in tort to the decedent, and dismissed the case.  The plaintiff appealed.

On appeal, the Supreme Court of Virginia reversed in part, holding that the plaintiff had pleaded sufficient facts to support a claim that the defendant wife had assumed a specific duty to provide care and protection to the decedent.  However, the Court held that the Complaint failed to allege sufficient facts to support such a claim against the defendant husband, noting that he was not present when his wife assumed the duty to exercise reasonable care to prevent the decedent from riding in cars driven by inexperienced or young male drivers.  Additionally, the Court ruled that the defendants did not owe a duty to the decedent to exercise reasonable care in controlling the conduct of third parties to prevent her from harm.  The Court noted that as a general rule, a person does not have a duty to protect another from the conduct from third persons unless a “special relationship” exists between a defendant and a plaintiff.  Examples of such a special relationship include the relationship between a common carrier and its passenger, a business proprietor and its invitee, an innkeeper and its guests, and an employer and employee under certain circumstances.  The Court noted that this list was not exhaustive, but declined to expand the list to include an adult who agrees to supervise and provide care to a minor.  Additionally, the Court held that the 17-year old boy’s negligence was not a superseding act sufficient to extinguish the defendants’ potential liability as a matter of law, ruling that negligence and proximate cause could be questions of fact for the jury.      

However, the Court went further.  Even though the Court recognized that an adult who agrees to supervise and care for a child is not an insurer of the child’s safety, the Court held that the complaint had alleged sufficient facts to state claims against both the defendant husband and the defendant wife based on a common law duty to exercise reasonable care in supervising a child.  Recognizing the potentially broad implications of the majority decision, extensive concurring and dissenting opinions were authored by two justices, who concurred with the majority decision except for the holding that an adult supervising the child of another has a common law duty to exercise reasonable care with regard to that supervision.

Kellermann involves significant issues which may impact the insurance industry.  We may well see an increase in claims involving “negligent supervision”, particularly against insureds under homeowners’ policies of insurance.  Additionally, in cases where a child is making a claim against an insured who is not the supervising adult of the child, the Kellermann decision potentially might be used to support the affirmative defenses of the contributory negligence of a parent in caring for the child, or the intervening negligence of a supervising adult who is not a parent.  Similarly, the Kellermann decision might be used to support a subrogation action against an adult or parent who negligently supervises a child.

As indicated above, the facts as pleaded by the plaintiff in Kellermann were somewhat compelling, as illustrated by the fact that all justices agreed that the plaintiff had stated a cause of action based on the defendant wife assuming a specific duty to care for and protect the decedent.  We will have to wait and see how trial judges and the Supreme Court of Virginia treat future cases with less compelling facts.  It should be noted that there are older Virginia cases in which the Supreme Court of Virginia seemed reluctant to find a parent contributorily negligent in supervising a child.  The facts in these older cases are less compelling than the facts presented to the court in Kellerman, and these older decisions might be used in future Kellermann–type cases to argue that the supervising adult did not breach a duty to supervise.  Alternatively, reconciling these older cases with the Kellermann decision, the Kellerman decision might be used in the future to expand the circumstances under which a parent may be found contributorily negligent for the negligent supervision of a child.  

In ruling on future Kellermann-type claims and issues, the factors a court might consider in making its  determination could include, but would not be limited to, the following:

1.    The circumstances under which the supervising adult undertook the care of the child (i.e., whether the supervising adult invited the child to stay with him or her, or the supervising adult was asked by the child’s parent to care for the child, etc. )
2.    Any specific instructions or other communications between the supervising adult and the child’s parents regarding the care of the child.
3.    The time period that the supervising adult was to care for the child.
4.    The age, experience and maturity of the child.
5.    Any instructions given by the supervising adult to the child.
6.    The proximity of the supervising adult to the child at the time the child is harmed.
7.    The circumstances under which the child was harmed.

Think of your record as you do your credit report. It is direct reflection of who you are, what you have done, and what type of person you are. While some may believe this written reflection of your life is difficult to control, selecting the proper Criminal Defense in a trying time can be the safety net you need to protect your record, your life, and your future.

If you or a loved one has been charged with a Virginia criminal defense, it is imperative that you hire an experienced, aggressive and proven attorney with the reputation and representation you need to fight for your record and your freedom.

Of all of the options available to you for searching for the right Virginia Criminal Attorney to include online searches, classified listings, word of mouth, and even simply visiting your local attorney’s office, ensure you take the time to investigate your attorney. Remember, your attorney works for you – not the other way around. Hire a lawyer with experience on both sides of the bench… with both defense and prosecution experience. This way, you can be sure your representation understands both sides of the argument, and know what to expect when you arrive in court.

Do your research, search for the right attorney, and after you’ve interviewed many Virginia Criminal Attorneys, make your last call to Virginia Criminal Attorney Michael A. Robinson of Robinson Law, PLLC and hire the aggressive defense with proven results you need to fight for your record, and your life.