DEFENDER SERVICES OFFICE
TRAINING DIVISION





The Defender Services Office Training Division furthers the right to effective assistance of counsel by providing training and other resources to attorneys appointed under the Criminal Justice Act.





    May 19, 2015
    Supreme Court Holds Firearm Owner Convicted of a Felony May Lawfully Transfer His Weapons
    Yesterday, the Court unanimously ruled in Henderson v. United States (No. 13-1487) that a firearm owner convicted of a felony is allowed to transfer his weapons to independent third parties, including selling the weapon on the open market. For more on the opinion see this SCOTUSblog post

    April 21, 2015
    Supreme Court Limits Use of Dog Sniff After Completion of a Traffic Stop
    Today, the Supreme Court issued an opinion in Rodriguez v. United States (No. 13-9972).  As summarized by Justice Ginsburg, writing for the majority, the Court held the following:

    In Illinois v. Caballes, 543 U. S. 405 (2005), this Court held that a dog sniff conducted during a lawful traffic stop does not violate the Fourth Amendment’s proscription of unreasonable seizures. This case presents the question whether the Fourth Amendment tolerates a dog sniff conducted after completion of a traffic stop. We hold that a police stop exceeding the time needed to handle the matter for which the stop was made violates the Constitution’s shield against unreasonable seizures. A seizure justified only by a police-observed traffic violation, therefore, “become[s] unlawful if it is prolonged beyond the time reasonably required to complete th[e] mission” of issuing a ticket for the violation. Id., at 407. The Court so recognized in Caballes, and we adhere to the line drawn in that decision.

    April 13, 2015
    Sentencing Commission Votes to Promulgate Amendments to Guidelines
    On April 9, 2015, the Sentencing Commission voted to promulgate amendments to the sentencing guidelines.  These amendments will be submitted to Congress by May 1, 2015.  Barring congressional action, they will take effect November 1, 2015.  For an overview of the most relevant changes, see this Summary of the 2015 Proposed Amendments to the Sentencing Guidelines by National Sentencing Resource Counsel. Read the language of all the proposed amendments in the Commission's Preliminary Version of the Amendments. Practitioners may be able to use favorable amendments now in arguments for variances.

    April 01, 2015
    This Week's Actions by the Supreme Court: Opinions on Electronic Monitoring and IAC, and Cert Grants on Death-Sentencing Proceedings
    Yesterday, the Supreme Court issued a per curiam opinion in Grady v. North Carolina (No. 14-593), addressing whether North Carolina's electronic monitoring program constitutes a search under the Fourth Amendment. The monitoring program requires those convicted of sex offenses to wear an ankle bracelet tracking their movement for the rest of their lives. While the Court held that "a State. . . conducts a search when it attaches a device to a person's body, without consent, for the purpose of tracking that individual's movements," the Court declined to decide whether or not such a search is unreasonable.

    The Court also issued a per curiam opinion in the habeas case of Woods v. Donald (No.14-618), and granted cert to review death-sentencing proceedings in three state cases, Kansas v. Carr (Nos. 14-450 and 14-449), and Kansas v. Gleason (No. 14-452).

    In Woods v. Donald, the Court reversed the Sixth Circuit's judgement that Cory Donald's attorney provided per se ineffective assistance of counsel under United States v. Cronic when he was briefly absent during testimony concerning other defendants.

    The two Kansas v. Carr cases involve the joint murder trial of two brothers.  In Carr, the Court will decided whether it was unconstitutional for the state court to hold a death-sentencing proceeding for both brothers at the same time. The Court will also address whether a judge in a death case has a constitutional duty to tell the jury that a more relaxed standard of proof applies when the jurors are considering mitigating factors. This same issue is also before the Court in Kansas v. Gleason.

    For more on all of these cases, see this SCOTUSblog post

    March 25, 2015
    Supreme to Determine Whether Miller v. Alabama Applies Retroactively
    Yesterday, the Supreme Court granted cert in Montgomery v. Louisiana (No. 14-280).  The issue presented is whether Louisiana improperly denied retroactive application of the constitutional ban on automatic life-without-parole sentences for children, as set forth in Miller v. Alabama

    March 10, 2015
    Supreme Court to Examine Jury's Role in Death Penalty Sentencing
    Yesterday, the Supreme Court granted cert in Hurst v. Florida (No. 14-7505), to decide whether Florida's death sentencing scheme violates the Sixth Amendment or the Eighth Amendment in light of Ring v. Arizona,  536 U.S. 584 (2002) (applying Apprendi's reasoning in the capital sentencing context).  For more on the case, see this SCOTUSblog post.

    March 03, 2015
    Supreme Court to Rule on Conspiracy to Extort
    Yesterday the Supreme Court granted cert in Ocasio v. United States (No. 14-361) to decide whether a conspiracy to commit extortion requires that the conspirators agree to obtain property from someone outside the conspiracy. 

    February 25, 2015
    Supreme Court Holds That a Fish Is Not a "Tangible Object" Under 18 U.S.C. §1519
    Today the Court issued an opinion in Yates v. United States, in which it reversed the judgment of the Eleventh Circuit.  In the plurality opinion Justice Ginsburg wrote, "Mindful that in Sarbanes-Oxley, Congress trained its attention on corporate and accounting deception and cover-ups, we conclude that a matching construction of §1519 is in order: A tangible object captured by §1519, we hold, must be one used to record or preserve information."  For an analysis of the opinion see this SCOTUSblog post.

    January 26, 2015
    Supreme Court to Hear Challenge to Oklahoma's Lethal Injection Protocol
    After refusing to delay the execution of one of the petitioners, the Supreme Court granted cert last Friday in Glossip v. Gross (No. 14-7955), to decide these questions regarding the constitutionality of Oklahoma's three-drug lethal injection. See these articles in the New York Times and NPR for more on the case. 

    January 20, 2015
    Supreme Court to Rule on Mental State Required for Conviction Under Controlled Substances Analogue Act; Issues Decisions in Two Habeas Cases
    On January 16, 2015 the Supreme Court granted cert in McFadden v. United States (No. 14-378) to decide whether, to convict a defendant of distribution of a controlled substance analogue, the government must prove the defendant knew that the substance constituted a controlled substance analogue.

    The Court also issued a summary reversal in the capital habeas case of Christeson v. Roper (No. 14-6873), ruling that, pursuant to Martel v. Clair, 565 U.S. ___ (2012), the Eighth Circuit improperly affirmed the district court's denial of the petitioner's motion for substitute counsel.

    In addition, on January 13, 2015, the Court held in Jennings v. Stephens (No. 13-7211) that a prisoner who sought federal habeas relief based on three theories of ineffective assistance of counsel and prevailed in the district court on two of them is not required to file a cross-appeal or seek a certificate of appealability on the third theory to rely on it as part of his defense against the state’s appeal.  For an analysis of the opinion, see this SCOTUSblog post.

    January 13, 2015
    Supreme Court Hands Down Opinion on Forced-Accompaniment Provision of Bank Robbery Statute
    Earlier today the Supreme Court issued a unanimous opinion holding that “a bank robber 'forces [a] person to accompany him,' for purposes of [18 U.S.C.] §2113(e), when he forces that person to go somewhere with him, even if the movement occurs entirely within a single building or over a short distance."

    January 13, 2015
    Sentencing Commission Publishes Proposed Guideline Amendments
    On January 9, 2015 the Sentencing Commission voted to publish proposed amendments to the guidelines and issues for comment.  The Commission will hold a hearing in March and will vote on the final amendments in April.

    Proposed amendments and issues for comment include:

    • single sentence rule for career offenders (in cases where one offense is a qualifying offense and one is not)
    • mitigating role under 3B1.2
    • inflationary adjustment to loss tables
    • sophisticated means under 2B1.1
    • victim table in 2B1.1
    • intended loss under 2B.1
    • fraud on the market
    • jointly undertaken activity under 1B1.3
    • hydrocodone under 2D1.1
    • flavored drugs

    January 12, 2015
    Supreme Court to Decide Whether ACCA's Residual Clause Is Unconstitutionally Vague
    On Friday, the Supreme Court ordered supplemental briefing and oral argument in Johnson v. United States (No. 13-7120), a case that was first argued in November, 2014. In the new order, the Court has asked the parties to address: "Whether the residual clause in the Armed Career Criminal Act of 1984, 18 U. S. C. § 924(e)(2)(B)(ii), is unconstitutionally vague."
     

    December 15, 2014
    Supreme Court Holds Traffic Stop Based on Mistake of Law Still Proper; Grants Cert on Retroactivity of Miller v. Alabama
    Today, the Supreme Court issued its decision in Heien v. North Carolina (No.13-604), holding that a police officer's traffic stop did not violate the Fourth Amendment even though it was based on a mistake of law. 

    The Court also granted cert last Friday in Toca v. Louisiana (No. 14-6381) to determine (1) Whether the decision in Miller v. Alabama, limiting sentences of life without parole for minors who commit murder, applies retroactively in this case; and 2) Whether a federal question is raised by a claim that a state collateral review court erroneously failed to find a exception?

    In an 8-1 majority opinion, written by Chief Justice Roberts, the Court in Heien explained:

    In this case, an officer stopped a vehicle because one of its two brake lights was out, but a court later determined that a single working brake light was all the law required. The question presented is whether such a mistake of law can nonetheless give rise to the reasonable suspicion necessary to uphold the seizure under the Fourth Amendment. We hold that it can. Because the officer’s mistake about the brake-light law was reasonable, the stop in this case was lawful under the Fourth Amendment.

    December 10, 2014
    Recent Supreme Court Cert Grants and Opinions of Interest to CJA Practitioners
    In a unanimous opinion issued on December 8 - Warger v. Shauers (No.13-517) - the Supreme Court held that FRE 606(b) precludes a party seeking a new trial from using one juror's affidavit of what another juror said in deliberations to demonstrate the other juror's dishonesty during voir dire.  For an analysis of the opinion see this SCOTUSblog post

    On December 5, the Supreme Court granted cert in Brumfield v. Cain (No. 13-1433) to address the following issues:

    (1) Whether a state court that considers the evidence presented at a petitioner’s penalty phase proceeding as determinative of the petitioner’s claim of mental retardation under Atkins v. Virginia has based its decision on an unreasonable determination of facts under 28 U.S.C. § 2254(d)(2); and (2) whether a state court that denies funding to an indigent petitioner who has no other means of obtaining evidence of his mental retardation has denied petitioner his “opportunity to be heard,” contrary to Atkins and Ford v. Wainwright and his constitutional right to be provided with the “basic tools” for an adequate defense, contrary to Ake v. Oklahoma.

    Earlier in the term, the Court granted cert in another habeas case Chappel v. Ayala (No. 13-1428) to address: (1) whether a state court's rejection of a claim of federal constitutional error on the ground that any error, if one occurred, was harmless beyond a reasonable doubt is an “adjudicat[ion] on the merits” within the meaning of 28 U.S.C.
    § 2254(d), so that a federal court may set aside the resulting final state conviction only if the defendant can satisfy the restrictive standards imposed by that provision;  and (2) whether the Court of Appeals properly applied the standard articulated in Brecht v.
    Abrahamson
    .

    And in Henderson v. United States (No. 13-1487) the Court will determine whether a felony conviction, which makes it unlawful for the defendant to possess a firearm, prevents a court under FRCP 41(g) or under general equity principles from ordering that the government (1) transfer non-contraband firearms to an unrelated third party to whom the defendant has sold all his property interests; or (2) sell the firearms for the benefit of the defendant.


    November 03, 2014
    New Sentencing Guidelines Manual Now Available
    The 2014 Sentencing Guidelines Manual is now available in both PDF and HTML formats. 

    For an overview of the amendments that took effect on November 1, 2014, see this Summary of 2014 Amendments to the Sentencing Guidelines by National Sentencing Resource Counsel. 

    For guidance on the 2014 Amendments to USSG § 1B1.10, see FAQS: 2014 Amendments to USSG § 1B1.10: Retroactivity of "Drugs Minus 2" (Amendment 782) and Sentence Reductions in Cases Involving Mandatory Minimums and Substantial Assistance.

    October 15, 2014
    DOJ Announces New Policy: Prosecutors Should Not Request IAC Waivers in Plea Agreements
    In a press release issued yesterday, the Department of Justice announced a new policy of no longer asking "criminal defendants who plead guilty to waive their right to bring future claims of ineffective assistance of counsel." 

    Deputy Attorney General Cole conveyed the new policy to all federal prosecutors in this memo: Department Policy on Waivers of Ineffective Assistance of Counsel.  The memo directs prosecutors to no longer seek IAC waivers in plea agreements "whether those claims are made on collateral attack or, when permitted by circuit law, made on direct appeal."  And in cases with an existing IAC waiver, "prosecutors should decline to enforce the waiver when defense counsel rendered ineffective assistance resulting in prejudice or when the defendant's ineffective assistance claim raises a serious debatable issue that a court should resolve."

    October 03, 2014
    Supreme Court to Hear Cases on Length of Traffic Stops and Confrontation Clause Challenge to Use of a Child's Out-of-Court Statements About Abuse
    Yesterday, the Supreme Court granted cert in two criminal cases, Rodriguez v. United States (No. 13-9972) and Ohio v. Clark (No. 13-1352). 

    In Rodriguez, the question presented, as stated in the petition, is:

    This Court has held that, during an otherwise lawful traffic stop, asking a driver to exit a vehicle, conducting a drug sniff with a trained canine, or asking a few off-topic questions are "de minimis" intrusions on personal liberty that do not require reasonable suspicion of criminal activity in order to comport with the Fourth Amendment. This case poses the question of whether the same rule applies after the conclusion of the traffic stop, so that an officer may extend the already-completed stop for a canine sniff without reasonable suspicion or other lawful justification.

    In Clark, the Court will address  (1) Whether an individual's obligation to report suspected child abuse makes that individual an agent of law enforcement for purposes of the Confrontation Clause; and (2) whether a child's out-of-court statements to a teacher in response to the teacher's concerns about potential child abuse qualify as “testimonial” statements subject to the Confrontation Clause.




    October 01, 2014
    Attorney General Holder Issues Memo on § 851 Enhancements in Plea Negotiations
    In a memo dated September 24, 2014 - Guidance Regarding § 851 Enhancements in Plea Negotiations - Attorney General Eric Holder directed all federal prosecutors that such enhancements "should not be used in plea negotiations for the sole or predominant purpose of inducing a defendant to plead guilty."  Also, at least one news report indicates that Holder may issue additional memos, including one announcing that federal prosecutors will no longer request that defendants waive their right to appeal for ineffective assistance of counsel when pleading guilty: "Government Rethinks Waivers With Guilty Pleas" (Wall Street Journal, September 26, 2014).


    July 18, 2014
    Sentencing Commission Votes to Retroactively Apply Its Amendment to the Drug Guidelines
    Today the Sentencing Commission voted to retroactively apply its guideline amendment reducing the offense levels in the drug quantity table by two levels. The Commission's decision includes a requirement that reduced sentences cannot take effect until November 1, 2015.  Read the full text of the retroactivity amendment in this Reader-Friendly Version.  For more on the Commission's decision, see this press release.   

 

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