November 8, 2011
Supreme Court Clarifies Meaning of "Clearly Established Federal Law" Under AEDPA
The Supreme Court issued a unanimous opinion today in Greene v. Fisher (No. 10-637), addressing AEDPA's prohibition on granting habeas relief to a state prisoner with respect to any claim that has been "adjudicated on the merits in State court proceedings" unless the state-court adjudication "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. §2254(d)(1). The Court held that "clearly established Federal law" is limited to the Supreme Court's decisions "as of the time of the relevant state-court adjudication on the merits," and that because the last state court adjudication on the merits of petitioner Greene's Confrontation Clause claims predated the Court's decision in Gray v. Maryland by nearly three months, the Third Circuit correctly held that Gray was not clearly established Federal law.
November 7, 2011
Supreme Court Grants Certiorari to Address Constitutionality of Life Imprisonment for Child Offenders
Today, the Supreme Court granted certiorari in two cases on the following question: Whether imposing a sentence of life without possibility of parole on an offender who was fourteen at the time he committed capital murder constitutes cruel and unusual punishment in violation of the Eighth Amendment. The two cases, Miller v. Alabama (No. 10-9646) and Jackson v. Hobbs (No. 10-9647) will be argued in tandem. For more on the cases, see this SCOTUSblog post.
The Court also summarily reversed the judgment of the Sixth Circuit Court of Appeals in Bobby v. Dixon. In its per curiam opinion, the Court held that the Sixth Circuit erred in concluding that the Miranda warnings Dixon received were undermined by a prior unwarned interrogation.
November 3, 2011
Amendments to Guidelines Take Effect
The United States Sentencing Commission has published its 2011 Guidelines Manual. Effective November 1, 2011, several amendments to the sentencing guidelines took effect. For an analysis of the most relevant amendments see the Sentencing Resource Counsel Project's Summary of 2011 Proposed Amendments to the Sentencing Guidelines. (Congress adopted the proposed amendments without modification.) The more significant amendments include the promulgation of a permanent amendment implementing the provisions of the Fair Sentencing Act of 2010; an amendment to §2L1.2 (illegal reentry) that provides a limitation on the use of convictions under §2L1.2(b)(1)(A) and (B) in certain circumstances, and a provision for an upward departure in other circumstances; changes to the application notes to the §3B1.2 guidelines (mitigating role); an amendment on supervised release, creating an exception to the general rule that a term of supervised release be imposed whenever a sentence of imprisonment of more than one year is imposed, or when required by statute, and lowering the minimum term of supervised release required by the guidelines for certain defendants when a statute does not require a higher minimum; amendment of the fraud guideline regarding health care fraud offenses; and amendment of the firearms guideline involving straw purchasers.
October 17, 2011
Supreme Court to Rule on First Amendment Challenge to the Stolen Valor Act
The Supreme Court today granted certiorari in United States v. Alvarez (No. 11-210), to decide whether the Stolen Valor Act (18 U.S.C. § 704(b)) which makes it a crime for a person to falsely represent that he has been awarded any decoration or medal authorized by Congress for the U.S. Armed Forces, is facially invalid under the Free Speech Clause of the First Amendment. For an analysis of the case, see this SCOTUSblog post.
October 11, 2011
Supreme Court to Address Double Jeopardy Claim
Yesterday, the Supreme Court granted certiorari in Blueford v. Arkansas to address whether, if a jury deadlocks on a lesser-included offense, the Double Jeopardy Clause bars the reprosecution of a greater offense after a jury announces that it has voted against guilt on the greater offense.
Petitioner Alex Blueford was charged with capital murder. Along with the capital murder charge, the trial court instructed the jury to consider three lesser included offenses: first-degree murder, manslaughter, and negligent homicide. The court directed the jury that it should not consider a lesser-included offense unless it first unaminously agreed that Blueford was not guilty of a greater offense. The jury forewoman announced that the jury was unanimous against capital murder and first-degree murder. She also said that the jury was deadlocked on the manslaughter charge and that, accordingly, it had not decided the negligent homicide charge. Blueford moved the trial court to accept a partial verdict of acquittal on capital murder and first-degree murder, on Double Jeopardy grounds. The trial court denied the motion and granted a mistrial. At the retrial, the trial court rejected Blueford’s motion to dismiss the capital and first-degree murder charges on Double Jeopardy grounds. On interlocutory appeal the Arkansas Supreme Court also rejected the Double Jeopardy claim, notwithstanding decisions from other state courts to the contrary.
September 28, 2011
Supreme Court Grants Certiorari on Habeas Timeliness Issue
As the Court opened its new term it granted certiorari in the habeas case, Wood v. Milyard (No. 10-9995). The questions presented are: (1) Whether an appellate court has the authority to raise sua sponte a 28 U.S.C. §2244(d) statute of limitations defense; and (2) whether the state's declaration before the district court that it "will not challenge, but [is] not conceding, the timeliness of Wood’s habeas petition,” amount to a deliberate waiver of any statute of limitations defense the state may have had?
July 1, 2011
Sentencing Commission Votes to Apply FSA Guideline Amendment Retroactively
On June 30, 2011 the U.S. Sentencing Commission voted to give retroactive effect to its proposed permanent amendment to the federal sentencing guidelines that implements the Fair Sentencing Act of 2010. Retroactivity of the amendment will become effective on November 1, 2011, the same day that the proposed permanent amendment would take effect, absent Congressional disapproval. See the following materials for more information:
Reader Friendly Text of the Retroactivity Amendment
Sentencing Commission's Press Release
June 28, 2011
Supreme Court to Address the Warrantless Use of a GPS Tracking Device, the Right to Change Court-Appointed Counsel in Habeas Proceedings, and the Confrontation Clause Implications of Expert Testimony on DNA Testing
The Supreme Court granted certiorari in three cases this week, and issued a per curiam opinion in one case of interest to criminal defense practitioners: In United States v. Jones (No. 10-1259) the Court will address whether the warrantless use of a GPS tracking device on Mr. Jones' vehicle to monitor its movements on public streets violated the Fourth Amendment; and 2) whether the government violated Mr. Jones' Fourth Amendment rights by installing the tracking device without a valid warrant and without his consent.
Martel v. Clair (No. 10-1265) presents the following question: Whether petitioner in federal habeas corpus proceedings is entitled to replace his court-appointed counsel with another court-appointed lawyer where he alleges that his court-appointed counsel was failing to pursue potentially important evidence?
Lastly, in Williams v. Illinois (No. 10-8505) the issue presented is whether a state rule of evidence allowing an expert witness to testify about the results of DNA testing performed by non-testifying analysts, where the defendant has no opportunity to confront the actual analysts, violates the Confrontation Clause. This case follows on the heels of the Court's opinion in Bullcoming v. New Mexico, which it issued last week (see Latest News entry below).
In addition to the issuance of the above orders granting certiorari, the Court also issued a per curiam opinion in United States v. Juvenile Male (No. 09-940), holding, on the grounds of mootness, that the Court of Appeals had no authority to enter a judgment finding that SORNA violated the Ex Post Facto Clause.
June 23, 2011
Supreme Court Issues Opinions on the Confrontation Clause and the Availability of a Sentence Reduction Under 18 U.S.C. § 3582 For Clients Sentenced Under a Rule 11(c)(1)(C) Plea Agreement
The Supreme Court issued two criminal opinions today:
The first, Bullcoming v. New Mexico, (09-10876), is a follow-up to the Court's 2009 decision in Melendez-Diaz v. Massachusetts, 557 U. S. ___ (2009). In Melendez-Diaz, the Court held that a forensic laboratory report stating that a suspect substance was cocaine ranked as testimonial for purposes of the Sixth Amendment's Confrontation Clause. Absent a stipulation, the prosecution may not introduce such a report for the purpose of proving a fact without offering a live witness competent to testify to the truth of the report's statements. The question presented in Bullcoming was whether the Confrontation Clause permits the prosecution to introduce the laboratory report through the in-court testimony of a scientist who did not sign the certification or perform or observe the test reported in the certification. The Court held that such "surrogate testimony" does not meet constitutional requirements. According to the Court, "the accused's right is to be confronted with the analyst who made the certification, unless that analyst is unavailable at trial, and the accused had an opportunity, pretrial, to cross-examine that particular scientist."
The Court's second opinion, Freeman v. United States, (09-10245), considered whether a defendant who enters into a Fed.R.Crim.P. 11(c)(1)(C) plea agreement to a particular sentence can be eligible for a sentence reduction under 18 U.S.C. § 3582(c)(2). Section 3582(c)(2) applies when a defendant has been sentenced to a term of imprisonment "based on" a sentencing range that has subsequently been lowered by the Sentencing Commission (in Freeman's case, the crack cocaine guidelines). Freeman focused on whether a sentence pursuant to a Rule 11(c)(1)(C) agreement is "based on" a Guidelines sentencing range.
In Freeman, five members of the Court agreed that the defendant's judgment must be reversed. Four of those justices held that there was no support for the Court of Appeals' categorical conclusion that sentences following an 11(c)(1)(C) agreement are "based on" the agreement, not the guidelines. These justices observed that, even in an 11(c)(1)(C) case, a judge must exercise discretion informed by the Guidelines to impose an appropriate sentence. Justice Sotomayor issued a concurring opinion setting forth a different ground for reversal. That opinion, like the dissent, would hold that sentences following 11(c)(1)(C) agreements are typically based on the agreement rather than the Guidelines, and therefore that § 3582(c)(2) relief is not available in the typical case. But unlike the dissent Justice Sotomayor would permit Freeman to seek a sentence reduction because his plea agreement in express terms tied the recommended sentence to the Guidelines sentencing range. Justice Sotomayor's opinion is the controlling one, and provides a much narrower path to reduction for defendants sentenced under 11(c)(1)(C) agreements.
June 16, 2011
Supreme Court Issues Opinions on the Exclusionary Rule; Impermissibility of Imprisonment for Rehabilitation Purposes; Determination of Miranda Custody Where Children Are Questioned; and Standing to Raise Tenth Amendment Challenge to a Federal Criminal Statute
Today, the Supreme Court issued opinions in four criminal cases.
In Davis v. United States (09-11328), the Court held that "searches conducted in objectively reasonable reliance on binding appellate precedent are not subject to the exclusionary rule." The case arose from the Supreme Court's recent change in jurisprudence regarding an automobile search incident to a recent occupant's arrest, under Arizona v. Gant, 556 U.S. __ (2009). Mr. Davis has been convicted of gun possession after he unsuccessfully moved to suppress a revolver found when the police searched the car he had been riding in after a routine traffic stop. Gant was decided while Mr. Davis's appeal on Fourth Amendment grounds was pending. While the Eleventh Circuit held that the search incident to Mr. Davis's arrest violated Gant, it declined to apply the exclusionary rule, concluding that such a penalty would do nothing to deter future Fourth Amendment violations. The Supreme Court agreed, reasoning that, because the police acted in good faith in conducting the search in compliance with the existing Eleventh Circuit Fourth Amendment precedent at the time, the "absence of police culpability dooms Davis's claim."
In Tapia v. United States (No. No. 10-5400) the Court held that a district court may not impose or lengthen a term of imprisonment in order to promote the defendant's rehabilitation. The Court reasoned that "when sentencing an offender to prison, the court shall consider all the purposes of punishment except rehabilitation --- because imprisonment is not an appropriate means of pursuing that goal." This conclusion is supported by the text of 3582(a), its context in the Sentencing Reform Act of 1984 (including 28 U.S.C. 994(k), a directive to the Sentencing Commission), and its legislative history. In reaching its conclusion, the Court pointed out that the SRA provides particular guidance regarding how the four purposes of sentencing set forth in 18 USC 3553(a)(2) -- retribution, deterrence, incapacitation, and rehabilitation -- pertain to each type of the primary sentencing options under the Act -- imprisonment, supervised release, probation, and fines. These additional provisions "make clear that a particular purpose may apply differently, or even not at all, depending on the kind of sentence under consideration." In a footnote, the Court notes that this case does not address the question whether Congress intended to prohibit courts from imposing less imprisonment in order to promote a defendant's rehabilitation and that this decision expresses no view on that question.
In J.D.B. v. North Carolina (No. 09-11121) the Court held that a child's age is a relevant factor to consider in determining whether the child is in custody for the purposes of Miranda v. Arizona. A uniformed police office had questioned J.D.B. when he was 13-years-old behind closed doors at school, under the scrutiny of the school principal. J.D.B. confessed after the officer threatened him with juvenile detention. The Court remanded to the state to decide whether, in light of the circumstances, including the boy's age at the time, he would have felt free to leave the room. For further analysis of the opinion see this scotusblog post.
Lastly, the Court held in Bond v. United States (No. 09-1227) that a criminal defendant who is indicted on charges that she violated a federal statute has standing to challenge the validity of the statute on the ground that it infringes on the powers reserved to the states under the Tenth Amendment. Ms. Bond had been charged with violating 18 U. S. C. §229, which forbids knowing possession or use, for nonpeaceful purposes, of a chemical that "can cause death, temporary incapacitation or permanent harm to humans." At the certiorari phase of the case, the Government conceded that Ms. Bond did have standing to pursue a Tenth Amendment Claim, but the Court appointed amicus to argue in support of the judgment below. The Court rejected amicus's contention that federal courts should not adjudicate a claim like petitioner's because of the prudential rule that a party generally must assert her own legal rights and interests, and cannot rest her claim to relief on the legal rights or interests of third parties. Amicus argued that here, Ms. Bond was asserting the rights of the states. In rejecting this argument, the Court concluded that petitioner here was seeking to "vindicate her own constitutional interests. The individual, in a proper case, can assert injury from governmental action taken in excess of the authority that federalism defines. Her rights in this regard do not belong to a State."
June 14, 2011
Supreme Court Grants Cert to Address State-Federal Consecutive Sentencing, Brady, and Habeas Timeliness Rules; Also Issues Per Curiam Decision in Derivative Citizenship Case
On June 13, the Supreme Court granted certiorari in several cases of interest to criminal defense practitioners.
In Setser v. United States (No. 10-7387) the question presented is whether a district court has the authority to order a federal sentence to run consecutive to an anticipated, but not-yet-imposed, state sentence. There is currently a Circuit split on the issue. In its brief in opposition the Solicitor General stated that "[t]he government agrees with petitioner" that 18 U.S.C. § 3584(a) does not authorize district courts to order a federal sentence to run consecutively to a not-yet-imposed state sentence." But the government argued that review is not warranted because the error has "scant practical effect" because the state court and BOP can decide for themselves whether to take the other sovereign's sentence into account.
In Smith v. Louisiana (No.10-8145) the Court will address (1) whether there is a reasonable probability that the outcome of Smith's trial would have been different but for Brady and Giglio/Napue errors; and 2) whether the state courts violated the Due Process Clause by rejecting Smith's Brady and Giglio/Napue claims. For more on the case, see this scotusblog post.
Gonzalez v. Thaler (No. 10-895) presents the following questions: (1) Whether there was jurisdiction to issue a certificate of appealability under 28 U.S.C. § 2253(c) and to adjudicate petitioner's appeal; and (2) whether the application for a writ of habeas corpus was out of time under 28 U.S.C. § 2244(d)(1) due to "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review."
Also on June 13 an equally divided Court issued a per curiam decision affirming, without opinion, the judgement below in Flores-Villar v. United States (No. 09-5801). The Ninth Circuit had rejected Ruben Flores-Villar's equal protection challenge on the basis of age and gender to two former sections of the Immigration and Nationality Act, 8 U.S.C. §§ 1401(a)(7) and 1409 (1974), which impose a five-year residence requirement, after the age of fourteen, on United States citizen fathers -- but not on United States citizen mothers -- before they may transmit citizenship to a child born out of wedlock abroad to a non-citizen.
June 10, 2011
Supreme Court Issues Opinions Broadly Defining "Cocaine Base," and Categorizing Felony Vehicle Flight as a "Violent Felony" Under ACCA
On June 9, the Supreme Court issued two opinions addressing criminal law issues. In DePierre v. United States (No. 09-1533), the Court held that "cocaine base," as used in 18 U.S.C. 841(b)(1)(A), means not just crack cocaine but all cocaine in its chemically basic form. In Sykes v. United States (No. 09-11311), the Court held that using a vehicle while knowingly or intentionally fleeing from a law enforcement officer after being ordered to stop constitutes a "violent felony" for purposes of the Armed Career Criminal Act.
June 7, 2011
Supreme Court Rules on ACCA Issue; Grants Cert to Address Right to Effective Assistance of Counsel in Post-Conviction Proceedings
On June 6, the Supreme Court issued an opinion in McNeill v. United States (No. 10-5258) unanimously holding that the determination of whether a defendant's prior state drug conviction is a "serious drug offense" under the Armed Career Criminal Act should be based on "the maximum sentence applicable to his offense when he was convicted of it."
The Court also granted certiorari in Martinez v. Ryan (No. 10-1001) to address whether a defendant in a state criminal case who is prohibited by state law from raising on direct appeal any claim of ineffective assistance of trial counsel, but who has a state-law right to raise such a claim in a first post-conviction proceeding, has a federal constitutional right to effective assistance of first post-conviction counsel specifically with respect to his ineffective-assistance-of-trial-counsel claim.
May 31, 2011
Supreme Court Grants Cert to Address Suggestive Identifications; Issues Opinions on Speedy Trial Act and Federal Witness Tampering Statute
On May 31, the Court granted certiorari in Perry v. New Hampshire (No. 10-8974), to address whether Due Process protections against unreliable identification evidence apply to all identifications made under suggestive circumstances, as some courts have held, or only when the suggestive circumstances were orchestrated by the police.
In addition, on May 26 the Court issued opinions in United States v. Tinklenberg (No. 09-1498) and Fowler v. United States (No. 10-5443).
In Tinklenberg the Court addressed whether certain pretrial motions stop the 70-day Speedy Trial Act clock. Below, the Sixth Circuit concluded the Act had been violated because some pretrial motions did not cause delay or an expectation of delay in the trial, and thus the days when those motions were pending should not have been excluded from the 70-day calculation. The Supreme Court rejected the Sixth Circuit's "motion-by-motion causation test" and held that the exclusion for pretrial motions applies "irrespective of whether [the motion] actually causes, or is expected to cause, delay in starting a trial." But the Court nonetheless ruled in Mr. Tinklenberg's favor on an alternative basis, holding that the Act was violated when the district court improperly excluded holidays and weekends during the 20 days spent on transportation related to a competency evaluation. By statute, transportation in excess of 10 days is presumptively unreasonable. In calculating the number of presumptively unreasonable days, the district court exempted holiday and weekend days, so that only 2 days, instead of 10, were considered excessive, during which the Speedy Trial clock continued to tick. Looking to the common law and other federal statutes, the Supreme Court concluded holiday and weekend days should not be excluded from the 70-day time period. For a detailed analysis of the opinion see this scotusblog post.
In Fowler the Court was called upon to interpret the federal witness tampering statute, which makes it a crime "to kill another person, with intent to ... prevent the communication by any person to a law enforcement officer ... of the United States" of "information relating to the possible commission of a Federal offense." The question before the Court was what, if anything, the government must show beyond broad intent to prevent communication with law enforcement officers in general. The Court held that the government need only show "that there is a reasonable likelihood that a relevant communication would have been made to a federal officer." For more on the opinion see this scotusblog post.
May 16, 2011
Supreme Court Rules on Exigent Circumstances Exception to Warrant Requirement
Today, the Supreme Court issued its opinion in Kentucky v. King, holding that the exigent circumstances exception to the warrant requirement applied in this case even though the police, by knocking on the door of a residence and announcing their presence, caused the occupants to attempt to destroy evidence.
Police were conducting a buy-bust operation with a confidential informant. Officers entered an apartment building in hot pursuit of a person who sold crack cocaine to the informant. They heard a door slam, but were not certain into which of two apartments the dealer fled. A strong odor of marijuana emanated from one of the doors, which prompted the officers to believe the dealer had fled into that apartment. The officers knocked on the door. They then heard noises which indicated that physical evidence was being destroyed. The officers entered the apartment but, as it turned out, it was the wrong apartment. Instead of finding the person who sold crack to the informant, they found Hollis King, his girlfriend, and a guest who was smoking pot. In a protective sweep of the apartment and a subsequent search, the police found marijuana, powder and crack cocaine, and drug paraphernalia. Police later found the crack dealer in the apartment next door.
The Kentucky Supreme Court held that the drug evidence used against Mr. King should have been suppressed, ruling that the exigent circumstances exception to the warrant requirement did not apply because the officers created the exigency by knocking on the door. In reversing the state court judgment, the U.S. Supreme Court held that where the police did not create the exigency by engaging or threatening to engage in conduct that violates the Fourth amendment, warrantless entry to prevent the destruction of evidence is reasonable and thus allowed. In reaching this conclusion the Court explicitly rejected tests formulated by Kentucky and other courts that prevented application of the exigency exception where the police acted in bad faith to create the exigency; the police should have reasonably foreseen that their tactics would create the exigency; or the police knock on the door to obtain consent even though they have already acquired enough evidence to establish probable cause to seek a search warrant.
April 7, 2011
Sentencing Commission Promulgates 2011 Amendments to the Sentencing Guidelines
The Sentencing Commission voted yesterday to promulgate guideline amendments that will be sent to Congress by May 1, 2011. Barring congressional action, these amendments will take effect November 1, 2011. Practitioners should examine these amendments now to determine whether they can use any favorable changes in arguing for variances even before the effective date. The official and reader-friendly versions of the amendments are available on the Proposed Amendments page of the Commission's website.
For an analysis of the most relevant amendments see the Sentencing Resource Counsel Project's Summary of 2011 Proposed Amendments to the Sentencing Guidelines. The Commission has also issued a press release summarizing some of the changes. The more significant amendments include the promulgation of a permanent amendment implementing the provisions of the Fair Sentencing Act of 2010. Like the temporary emergency amendment implementing the FSA, the permanent amendment keys the FSA’s mandatory minimum levels to base offense levels of 26 and 32. The Commission will hold a hearing on June 1, 2011 to consider whether the guidelines implementing the FSA should apply retroactively. Other significant changes include an amendment to §2L1.2 (illegal reentry) that would provide a limitation on the use of convictions under §2L1.2(b)(1)(A) and (B) in certain circumstances, and a provision for an upward departure in other circumstances; changes to the application notes to the §3B1.2 guidelines (mitigating role); an amendment on supervised release, creating an exception to the general rule that a term of supervised release be imposed whenever a sentence of imprisonment of more than one year is imposed, or when required by statute, and lowering the minimum term of supervised release required by the guidelines for certain defendants when a statute does not require a higher minimum; amendment of the fraud guideline regarding health care fraud offenses; and amendment of the firearms guideline involving straw purchasers.
April 4, 2011
Supreme Court Acts in Various Habeas Cases
On April 4 the Court issued an opinion in Cullen v. Pinholster (No. 09-1088), reversing the decision of the Ninth Circuit and holding that review under the federal habeas law is limited to the record that was before the state court which ruled on the claim on the merits. The Court also held that, on the record before the state court, Pinholster was not entitled to relief on his ineffective assistance of counsel claim.
After the denial of his state habeas claims, Pinholster filed a federal habeas claim. The federal district court held an evidentiary hearing at which Pinholster submitted new evidence that his trial counsel had been ineffective during the penalty phase of his trial. The district court granted the habeas petition. The Ninth Circuit, taking the district court evidence into account, determined that the California Supreme Court unreasonably applied Strickland in denying Pinholster's claim of penalty-phase ineffective assistance of counsel. In reversing, the Supreme Court agreed with the State's argument that review under §2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits, and that evidence presented to the federal habeas court cannot be considered.
The Court also granted certiorari on April 4 in another habeas case, Greene v. Fisher (No. 10-637) to address the following: For purposes of adjudicating a state prisoner's petition for federal habeas relief, what is the temporal cutoff for whether a decision from the U.S. Supreme Court qualifies as "clearly established Federal law" under 28 U.S.C. § 2254(d), as amended by AEDPA?
Additionally, the Court granted certiorari on March 21 in Maples v. Thomas (No. 10-63), to address whether the Eleventh Circuit properly held that there was no "cause" to excuse any procedural default where petitioner was blameless for the default, the State's own conduct contributed to the default, and petitioner's attorneys of record were no longer functioning as his agents at the time of any default. On March 21 the Court also issued a summary per curiam decision in Felkner v. Jackson (No. 10-797) reversing the Ninth Circuit's grant of federal habeas relief on a Batson claim.
March 23, 2011
Sentencing Commission's Proposed Amendments to Sentencing Guidelines
The Sentencing Commission has recently held hearings on its proposed 2011 amendments to the sentencing guidelines, policy statements and commentary. An analysis of some of these proposals is available from the federal defender testimony and public comment.
Among the proposed amendments are: (1) repromulgation as a permanent amendment the emergency, temporary amendment in response to the Fair Sentencing Act of 2010; (2) a change to §2D1.1 to implement the directive in section 4 of the Secure and Responsible Drug Disposal Act of 2010; (3) an amendment on firearms, including proposed changes to §2M5.2 regarding certain cases involving small arms and ammunition crossing the border and related issues for comment, including whether revisions to §2K2.1 and related guidelines may be appropriate to address concerns about firearms crossing the border and straw purchasers; (4) an amendment to Appendix A (Statutory Index) in response to the Dodd-Frank Wall Street Reform and Protection Act (5) an amendment to §2B1.1 (fraud) to implement the directive in section 10606 of the Patient Protection and Affordable Care Act; (6) an amendment on supervised release, including a change to §5D1.1 on cases in which the court is required by the guidelines to impose supervised release and a change to §5D1.2 on the minimum lengths required by that guideline for a term of supervised release; (7) an amendment to §2L1.2 (illegal reentry) that would provide a limitation on the use of convictions under §2L1.2(b)(1)(A) and (B) in certain circumstances; (8) an amendment to §2J1.1 (contempt) that would address a circuit conflict on the applicability of a specific enhancement in a case involving the willful failure to pay court-ordered child support; (9) changes to the policy statement at §6B1.2 (Standards for Acceptance of Plea Agreements) in light of United States v. Booker; and (10) proposed changes to Appendix A (Statutory Index) to address certain criminal provisions in the Coast Guard Authorization Act of 2010.
March 7, 2011
Supreme Court Rules on AEDPA Tolling Claim and Section 1983 Access to DNA Claim
On March 7, the Supreme Court issued an opinion in Wall v. Kholi (No. 09-868), addressing the time limits for filing a habeas petition under AEDPA. The Court held that "the phrase 'collateral review' in §2244(d)(2) means judicial review of a judgment in a proceeding that is not part of direct review. Because the parties agree that a motion to reduce sentence under Rhode Island law is not part of the direct review process, we hold that respondent's motion tolled the AEDPA limitation period and that his federal habeas petition was therefore timely."
The Court also issued an opinion in Skinner v. Switzer (No. 09-9000), holding that "a postconviction claim for DNA testing is properly pursued in a § 1983 action." For more on the opinion see this scotusblog post.
March 2, 2011
Supreme Court Holds That District Courts May Consider Post-Sentencing Rehabilitation at Resentencing
Today, the Supreme Court issued its decision in Pepper v. United States (No. 09-6822), reversing the Eighth Circuit's determination that the district had improperly considered Mr. Pepper's post-sentencing rehabilitation in granting a substantial downward variance at resentencing. In rejecting the Eighth Circuit's conclusion, the Supreme Court held: "[W]hen a defendant's sentence has been set aside on appeal, a district court at resentencing may consider evidence of the defendant's postsentencing rehabilitation and that such evidence may, in appropriate cases, support a downward variance from the now-advisory Federal Sentencing Guidelines range."
More broadly, the Court emphasized that district courts may properly reject the Sentencing Commission's policy statements in imposing a non-guideline sentence: "[O]ur post-Booker decisions make clear that a district court may in appropriate cases impose a non-Guidelines sentence based on a disagreement with the Commission's views. That is particularly true where, as here, the Commission's views rest on wholly unconvincing policy rationales not reflected in the sentencing statutes Congress enacted."
February 28, 2011
Supreme Court Issues Decisions Addressing Confrontation Clause and Adequate State Grounds for Denial of Habeas Review
On February 28, the Supreme Court issued an opinion in Michigan v. Bryant (No. 09-150), holding that a statement given to police by a murder victim identifying the person who shot him was non-testimonial and therefore was properly admitted as evidence at the defendant's murder trial.
At Bryant's trial, the court admitted statements that the victim, Anthony Covington, made to police officers who found him lying on the ground in a gas station parking lot suffering from a gunshot wound. After a jury convicted Bryant of second-degree murder, Bryant appealed. The Supreme Court of Michigan held that the Sixth Amendment's Confrontation Clause, as explained in Crawford v. Washington, 541 U. S. 36 (2004), and Davis v. Washington, 547 U. S. 813 (2006), rendered Covington's statements inadmissible testimonial hearsay, and the court reversed Bryant's conviction. In addressing whether the Confrontation Clause barred the admission at trial of Covington's statements to the police, the Supreme Court held that "the circumstances of the interaction between Covington and the police objectively indicate that the 'primary purpose of the interrogation' was 'to enable police assistance to meet an ongoing emergency.' Therefore, Covington's identification and description of the shooter and the location of the shooting were not testimonial statements, and their admission at Bryant's trial did not violate the Confrontation Clause."
Last week, the Court also issued an opinion in Walker v. Martin (No. 09-996), holding that a California rule requiring state habeas petitions to be filed "as promptly as the circumstances allow" constitutes an independent state ground that is adequate to bar habeas relief in federal court. See this scotusblog post for a detailed analysis of the opinion.
January 25, 2011
Supreme Court to Address SORNA Standing Issue and Miranda Custody Issue; Court Also Issues Opinions in Several Habeas Cases
On January 24 the Supreme Court granted certiorari in two cases, Reynolds v. United States (No. 10-6549) and Howes v. Fields (No. 10-680).
In Reynolds, the Court will address whether Mr. Reynolds has standing under the plain reading of the Sex Offender Registration and Notification Act (SORNA) to raise claims concerning the Attorney General's Interim Rule making SORNA retroactively applicable to those who committed their underlying sex offense prior to its enactment date, and whether the Court's review is needed to resolve the Circuit conflict. Below, the Third Circuit held that Mr. Reynolds did not have standing to challenge the Interim Rule because he was registered under state law before Congress passed SORNA.
In Fields, the Court will address whether its clearly established precedent under 28 U.S.C. § 2254 holds that a prisoner is always "in custody" for purposes of Miranda any time that prisoner is isolated from the general prison population and questioned about conduct occurring outside the prison regardless of the surrounding circumstances. For a more detailed analysis of the case, see this scotusblog post.
In addition to the two cert grants, the Court also issued an opinion summarily reversing the Ninth Circuit in Swarthout v. Cooke (No. 10-333). The case involved California's parole statute, which provides that the Board of Prison Terms "shall set a release date unless it determines that . . . consideration of the public safety requires a more lengthy period of incarceration." If the Board denies parole, the prisoner can seek judicial review in a state habeas petition. As interpreted by the California Supreme Court, "the standard of review properly is characterized as whether 'some evidence' supports the conclusion that the inmate is unsuitable for parole because he or she currently is dangerous." After receiving adverse rulings on their parole determinations in state court, Respondents Cooke and Clay ultimately pursued federal habeas relief. In both cases, the Ninth Circuit held that the state court had made an unreasonable determination of the facts in light of the evidence. In reversing, the Supreme Court held, "In granting habeas relief based on its conclusion that the state courts had misapplied California's 'some evidence' rule, the Ninth Circuit must have assumed either that federal habeas relief is available for an error of state law, or that correct application of the State's 'some evidence' standard is required by the federal Due Process Clause. Neither assumption is correct."
Also, on January 19 the Supreme Court issued opinions in two other habeas cases out of the Ninth Circuit, both of which addressed ineffective assistance of counsel claims. In Harrington v. Richter (No. 09-578) the Court reversed the decision of the Ninth Circuit, holding that the defense lawyer was not deficient in failing to consult blood evidence when planning strategy for trial. For detailed analysis of the opinion see this scotusblog post. In Premo v. Moore (No. 09-658) the Court reversed, holding that defense counsel was not ineffective for failing to pursue a suppression motion and that Mr. Moore was not in any event prejudiced by his counsel's actions.
January 10, 2011
Supreme Court Grants Certiorari to Address ACCA; Ineffective Assistance of Counsel Related to Guilty Pleas
On January 7 the Supreme Court granted certiorari in three cases of interest to criminal defense practitioners.
In McNeill, Clifton T. v. United States (No. 10-5258) the Court will address whether the plain meaning of "is prescribed by law" which the Armed Career Criminal Act (ACCA) uses to define a predicate "serious drug offense" requires a federal sentencing court to look to the maximum penalty prescribed by current state law for a drug offense at the time of the instant federal offense, regardless of whether the state has made that current sentencing law retroactive.
ACCA defines a "serious drug offense" in relevant part as "an offense under State law . . . for which a maximum term of imprisonment of ten years or more is prescribed by law." 18 U.S.C. § 924(e)(2)(A)(ii). The Fourth Circuit affirmed the district court's classification of Mr. McNeill's North Carolina drug offenses as "serious drug offenses" under ACCA, even though at the time of his federal sentencing, North Carolina's current sentencing law did not prescribe a maximum term of imprisonment of at least ten years for those state drug offenses. The Fourth Circuit held that since North Carolina did not apply its current sentencing law retroactively, the fact that Mr. McNeill's drug offenses were punishable by imprisonment for at least ten years under the version of the law in effect at the time he committed the offenses qualified them as "serious drug offenses" under ACCA.
The other two cases in which the Court granted review present issues regarding ineffective assistance of counsel at the plea stage. In Lafler v. Cooper (No. 10-209) the Court will address whether a state habeas petitioner is entitled to relief where his attorney advised him to reject a favorable plea bargain, based on counsel's misunderstanding of the law, and petitioner was later convicted at trial. In Missouri v. Frye (No. 10-444) the Court will review a habeas petitioner's claim that, but for his attorney's error in failing to communicate a plea offer, he would have pleaded guilty with more favorable terms. In both cases, the Court will also address the following: "What remedy, if any, should be provided for ineffective assistance of counsel during plea bargain negotiations if the Defendant was later convicted and sentenced pursuant to Constitutionally adequate procedures?"
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