CLICK HERE FOR FULL TEXT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DERRICK ARCHIBALD,
Defendant-Appellant.


No. 08-5703

Appeal from the United States District Court
for the Middle District of Tennessee at Nashville.
No. 07-00073-001—Robert L. Echols, District Judge.
Argued: October 14, 2009
Decided and Filed: December 15, 2009
Before: BATCHELDER, Chief Judge; GRIFFIN, Circuit Judge; TARNOW, District Judge.

_________________________
OPINION
_________________________

GRIFFIN, Circuit Judge. Defendant Derrick Archibald appeals his conviction for unlawful possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1), arguing the district court erred in failing to suppress the firearm evidence obtained during a search of his residence conducted pursuant to a state search warrant. Archibald contends that the protective sweep, which provided probable cause for the search warrant and led to the discovery and seizure of the firearm, violated his Fourth Amendment rights. Because the district court erred by holding that the protective sweep of Archibald’s apartment comported with the Fourth Amendment, we reverse the district court’s order denying Archibald’s motion to suppress and remand for further proceedings consistent with this opinion.


CLICK HERE FOR FULL TEXT

THOMAS DAVIS,
Petitioner-Appellee,
v.
RAYMOND BOOKER, Warden,
Respondent-Appellant.


No. 09-1140

Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 02-75063—Arthur J. Tarnow, District Judge.
Argued: November 19, 2009
Decided and Filed: December 15, 2009
Before: MERRITT, GIBBONS, and McKEAGUE, Circuit Judges.

_________________________
OPINION
_________________________

MERRITT, Circuit Judge. In 1998, Thomas Davis and John Wilder were in a car attempting to purchase drugs from Troy Prewitt when one of them shot and killed Prewitt. Davis, the habeas petitioner here, was charged with murder in Michigan state court and convicted by a jury. The main factual question at trial was whether Davis or Wilder was the shooter. Wilder was a key witness against Davis at trial and testified that Wilder was merely driving Davis to buy drugs and had no intention of killing Prewitt. Davis claimed that their roles were reversed.

The main questions now before us, decided in Davis’s favor by the District Court below, are (1) does Davis have any significant evidence that a potential, uncalled witness, Todd Selma, would have testified that Wilder confessed to the shooting, and (2) did the prosecutor improperly vouch for Wilder’s credibility by noting that Wilder had been charged only as an accessory after the fact and not as an accomplice to the murder. With regard to the first question, we find that the only significant evidence in the record showing what Selma would have testified, if produced, is a letter that actually implicates Davis, not Wilder, for the shooting. Hence, we conclude that it is clear from the record that Davis was not prejudiced by his lawyers’ failures to locate and call Selma. With regard to the second question, we conclude that the prosecutor’s statements did not constitute improper vouching because Wilder’s charge was in the record and his personal interest in the case was obvious to the jury.

We, therefore, reverse the issuance of the writ of habeas corpus by the District Court.