Category Archives: Opinions and Analysis

NMSC: Independent medical examination may be ordered in workers’ compensation death benefits cases

by Emil J. Kiehne Posted on November 21, 2019

Patricia Lewis was a teacher for the Albuquerque Public Schools. She contracted allergic bronchopulmonary aspergillosis (ABPA) from mold in her classroom in 2011. In 2012, she was also diagnosed with breast cancer and began chemotherapy with an oncologist. She died … Continue reading →

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NMSC: Unfair Practices Act protects consumers, not competitors

by Emil J. Kiehne Posted on November 18, 2019

GandyDancer, LLC and Rock House CGM, LLC are business competitors that provide services to railroad companies. GandyDancer believed that Rock House CGM was not properly licensed in New Mexico, and had misrepresented the nature of its services, which enabled it … Continue reading →

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CA10: Defect in notice to appear for removal hearing was not jurisdictional

by Emil J. Kiehne Posted on November 6, 2019

In Lopez-Muñoz v. Barr (opinion by Judge Bacharach), the petitioner argued that her notice of removal was defective because it failed to include the date and time of her immigration hearing (in a footnote, the Court states that she did … Continue reading →

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CA10: District court should hold evidentiary hearing to determine whether trial counsel should have offered evidence of the defendant’s intellectual disability in death penalty case

by Emil J. Kiehne Posted on November 6, 2019

Last week, the Tenth Circuit issued a 95-page opinion in Harris v. Sharp, a death penalty case from Oklahoma. The defendant went to his estranged wife’s workplace and fired gunshots, killing her boss, Merle Taylor. Diana Baldwin had this story … Continue reading →

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CA10: Destruction of innocent homeowner’s property by police was not a taking

by Emil J. Kiehne Posted on November 6, 2019

The Tenth Circuit’s non-precedential opinion in Lech v. Jackson (by Judge Nancy Moritz) has attracted national attention due to the obvious unfairness of the result — city police destroy a home to arrest an armed criminal who barricaded himself there, … Continue reading →

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NMCA: Whistleblower who recovered no damages still entitled to attorney’s fees and costs

by Emil J. Kiehne Posted on November 6, 2019

While employed by the Town of Taos, Joseph Maestas was caught viewing pornography on his work computer, and was fired two weeks later. He then sued the Town under the Whistleblower Protection Act. Although he admitted to viewing pornography on … Continue reading →

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CA10: Supreme Court’s decision in Davis announced a new rule that applies retroactively to cases on collateral review

by Emil J. Kiehne Posted on November 5, 2019

Today the Tenth Circuit published its order in In re Mullins, granting the defendant’s motion to file a second or successive § 2255 motion to challenge his conviction for possession of a firearm during and in relation to a conspiracy … Continue reading →

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CA10: Affirmative withdrawal of challenge to presentence report is a waiver

by Emil J. Kiehne Posted on October 29, 2019

Defendant, Brice Ashton Carter, was convicted of possessing a firearm as a felon. A confidential informant told federal agents that Carter had used two firearms as payment for some methamphetamine. Relying on the informant’s statements, the presentence investigation report applied … Continue reading →

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NMCA: Testimony about threatening text did not violate best evidence rule where victim’s phone could not be unlocked

by Emil J. Kiehne Posted on October 24, 2019

Thomas Stevenson appealed his conviction for shooting into a motor vehicle. He argued that the victim’s nephew’s testimony about a threatening text that Stevenson allegedly sent to the victim was inadmissible under the best evidence rule, because the State should … Continue reading →

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CA10: Violence in El Salvador is not, by itself, a basis for asylum

by Emil J. Kiehne Posted on October 18, 2019

Several years ago, Santos Raul Escobar-Hernandez was attacked by a man named Nelson in El Salvador over some political graffiti near his house, and attacked again even after he removed it. His application for asylum in the United States was … Continue reading →

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