March 27, 2012
Supreme Court to Address Use of Narcotics Dogs to Establish Probable Cause
Yesterday, the Supreme Court granted certiorari in Florida v. Harris
(No. 11-817). The Court has been asked to determine whether the Florida Supreme Court has decided an important federal question in a way that conflicts with the established Fourth Amendment precedent of the U.S. Supreme Court by holding that an alert by a well-trained narcotics detection dog certified to detect illegal contraband is insufficient to establish probable cause for the search of a vehicle.
March 21, 2012
Supreme Court Issues Opinions on Ineffective Assistance of Counsel at Plea Bargain Stage
This week, the Supreme Court has issued three opinions and two grants of certiorari in cases of interest to criminal defense practitioners.
On Monday, the Court granted certiorari in two capital cases to address competency in federal habeas proceedings: Ryan v. Gonzales (No. 10-930) and Tibbals v. Carter (No. 11-218). In Ryan v. Gonzales the question presented is whether 18 U.S.C. § 3599(a)(2), which provides that an indigent capital state inmate pursuing federal habeas relief “shall be entitled to the appointment of one or more attorneys,” entitles a death row inmate to stay the federal habeas proceedings he initiated if he is not competent to assist counsel. In Tibbals v. Carter, the Court will decide whether capital prisoners possess a “right to competence” in federal habeas proceedings under Rees v. Peyton; and 2) whether a federal district court can order an indefinite stay of a federal habeas proceeding under Rees. For more on these cases, see this SCOTUSblog post.
Later in the week, the Court issued a series of opinions on the right to effective assistance of counsel. On Tuesday, the Court ruled in Martinez v. Ryan (No. 10-1001) that where, under state law, ineffective assistance of trial counsel claims must be raised in an initial-review collateral proceeding, a procedural default will not bar a federal habeas court from hearing those claims if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective. For more on Martinez v. Ryan see this SCOTUSblog post.
In Missouri v. Frye (No. 10-444), issued on Wednesday, the Court held that the right to effective assistance of counsel extends to the consideration of plea offers that lapse or are rejected. More specifically, “defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused. . . .When defense counsel [here] allowed the offer to expire without advising the defendant or allowing him to consider it, defense counsel did not render the effective assistance the Constitution requires.” In its opinion in Lafler v. Cooper (No. 10-209), also issued on Wednesday, the Court again addressed the right to effective assistance at the plea bargaining stage. The Court held that where counsel’s ineffective advice led to an offer’s rejection, and where the prejudice alleged is having to stand trial, a defendant must show that but for the ineffective advice, there is a reasonable probability that the plea offer would have been presented to the court, that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer’s terms would have been less severe than under the actual judgment and sentence imposed.
March 09, 2012
TRAC Analysis of Variations in Sentencing Misses the Mark
On March 5, 2012, the Transactional Records Access Clearinghouse (TRAC) announced “Wide Variations Seen in Federal Sentencing,” and stated in a press release that it had discovered “extensive and hard-to-explain variations in the sentencing practices of district court judges.” Sentencing Resource Counsel reviewed TRAC’s report, and concluded that its analyses, and accompanying media coverage, demonstrate the danger of a little knowledge about a complex subject. For example, TRAC treats all drug cases as “similar,” regardless of the type or quantity of drug, and regardless of whether defendants were first offenders or career offenders. Read this Sentencing Resource Counsel Fact Sheet
February 22, 2012
Supreme Court Issues Opinions on Miranda, Brady and INA
On Monday, the Supreme Court issued several opinions of interest to criminal defense practitioners. In Howes v. Fields (No. 10-680), the Court addressed what constitutes "custodial interrogation" under Miranda when a prisoner is questioned about a crime that occurred outside the prison walls. The Court reversed the decision of the Sixth Circuit affirming the district court's grant of habeas relief. In an opinion by Justice Alito, the Court stated, "In this case, it is abundantly clear that our precedents do not clearly establish the categorical rule on which the Court of Appeals relied, i.e., that the questioning of a prisoner is always custodial when the prisoner is removed from the general prison population and questioned about events that occurred outside the prison. On the contrary, we have repeatedly declined to adopt any categorical rule with respect to whether the questioning of a prison inmate is custodial."
In Kawashima v. Holder (No. 10-577) the Court affirmed the decision of the Ninth Circuit. It held that violations of 26 U.S.C. §§ 7206(1) and (2), which preclude making (or assisting in the making of) a false tax return, are crimes "involv[ing] fraud or deceit" under 8 U.S.C. § 1101(a)(43)(M)(i) and are therefore aggravated felonies for purposes of the Immigration and Nationality Act, 8 U.S.C. § 1101 et seq., when the loss to the government exceeds $10,000.
The Court also issued a per curiam opinion in an unargued case, Wetzel v. Lambert (No. 11-38). James Lambert was convicted and sentenced to death in 1984 for murders committed in the course of a robbery. In a habeas petition in the Eastern District of Pennsylvania, Lambert asserted that the Commonwealth had failed to disclose a police activity sheet in violation of Brady v. Maryland. Lambert argued that the activity sheet was exculpatory because it suggested that one of his accomplices had identified a third person as a "co-defendant." The district court denied the petition, but the Third Circuit reversed, holding that the faiure to disclose the activity sheet was a Brady violation. The Supreme Court vacated the Third Circuit's decision and remanded the case for further proceedings, ruling that the Third Circuit had failed to address the state court's determination that the notations on the activity sheet were entirely ambiguous.
February 07, 2012
New Department of Justice Policy Extends Fast-Track for Illegal Re-Entry to All Districts
In a memorandum dated January 31, 2012, Deputy Attorney General James M. Cole advised all U.S. Attorneys of a new DOJ policy on fast-track/early disposition programs in illegal re-entry cases. Recognizing that the existence of these programs in some, but not all districts, leads to sentencing disparity, the memo states that "the Department is revising its fast-track policy and establishing uniform, baseline eligibility requirements for any defendant who qualifies for fast-track treatment, regardless of where that defendant is prosecuted." The memo mandates that districts implement this new policy "no later than by March 1, 2012." This new policy apparently does not extend to offenses other than illegal re-entry.
For more on the impact of this new policy see this 1/31/12 Sentencing Law and Policy Blog post and this 2/1/12 Sentencing Law and Policy Blog post, as well as this Life Sentence Blog post.
January 23, 2012
Supreme Court Limits Warrantless Use of GPS. Also Addresses Applicability of SORNA to Pre-Act Offenders
The Supreme Court today issued a groundbreaking opinion in United States v. Jones (No. 10-1259), holding that attaching a GPS device to a vehicle and then using the device to monitor the vehicle’s movements constitutes a search under the Fourth Amendment. Justice Scalia delivered the opinion of the Court, in which Chief Justice Roberts, Justice Kennedy, Justice Thomas and Justice Sotomayor joined. Justice Sotomayor also filed a concurring opinion. Justice Alito filed an opinion concurring in the judgment, in which Justices Ginsburg, Breyer, and Kagan joined. As a result of the various concurrences, the Court’s ruling is likely to leave open many questions regarding the expectation of privacy one may reasonably have in future cases involving the use of similar technology. For an analysis of the opinion, see this SCOTUSblog post.
In another opinion issued today, Reynolds v. United States (No.10-6549), the Court held that the Sex Offender Registration and Notification Act (SORNA) does not require pre-Act offenders to register before the Attorney General validly specifies that the Act’s registration provisions apply to them. Because the Third Circuit below did not address the validity of the Attorney General’s Interim Rule of February 28, 2007, in which the Attorney General specified that SORNA’s registration requirements apply to pre-Act offenders, the Court remanded the case for further proceedings.
January 19, 2012
Supreme Court Holds Habeas Petitioner Showed Cause to Excuse Procedural Default
Yesterday, the Supreme Court issued an opinion in Maples v. Thomas (No. 10-63), reversing the decision of the Eleventh Circuit and holding that death row inmate Cory Maples had shown the requisite “cause” to excuse his procedural default, which occurred when his lawyer missed a filing deadline in state court. As set forth by Justice Ginsburg, “The sole question this Court has taken up for review is whether, on the extraordinary facts of Maples’ case, there is 'cause' to excuse the default. Maples maintains that there is, for the lawyers he believed to be vigilantly representing him had abandoned the case without leave of court, without informing Maples they could no longer represent him, and without securing any recorded substitution of counsel. We agree. Abandoned by counsel, Maples was left unrepresented at a critical time for his state post conviction petition, and he lacked a clue of any need to protect himself pro se. In these circumstances, no just system would lay the default at Maples’ death-cell door. Satisfied that the requisite cause has been shown, we reverse the Eleventh Circuit’s judgment.”
Earlier this week the Court granted certiorari in another habeas case, Cavazos v. Williams (No. 11-465), in which it will decide whether a habeas petitioner’s claim has been “adjudicated on the merits” for purposes of 28 U.S.C. § 2254(d) where the state court denied relief in an explained decision but did not expressly acknowledge a federal-law basis for the claim.
January 11, 2012
Supreme Court Issues Opinion Addressing Brady Claim, Eyewitness Identification, and AEDPA Certificate of Appealability; Also Grants Cert on Fourth Amendment Challenge to Use of Drug Sniffing Dogs at Front Door of House
Today, the Supreme Court issued an opinion in Perry v. New Hampshire (No. 8974) affirming the decision of the New Hampshire Supreme Court and holding that the Due Process Clause does not require an inquiry into the reliability of an eyewitness identification when the identification was not procured under unnecessarily suggestive circumstances by law enforcement.
In Smith v. Cain (No. 10-8145), issued yesterday, the Court held that the substantial Brady claims in the case required a reversal of the petitioner’s Louisiana state court conviction. For analysis of the opinion see this SCOTUSblog post.
Yesterday, the Court also issued an opinion in Gonzalez v. Thaler (No. 10-895), holding that under AEDPA, 28 U.S.C. Section 2253(c)(3) is a mandatory but nonjurisdictional rule. The failure of a certificate of appealability to "indicate" a constitutional issue does not deprive a court of appeals of jurisdiction to adjudicate the appeal. The Court further held, however, that where a state prisoner does not seek review in a state's highest court, the judgment becomes "final" for purposes of Section 2244(d)(1)(A) upon "expiration of the time for seeking such review." The petitioner's appeal in this case was therefore untimely.
On January 6, the Court granted certiorari in Florida v. Jardines (No. 11-564) to address the following issues: (1) Whether a dog sniff at the front door of a suspected grow house by a trained narcotics detection dog is a Fourth Amendment search requiring probable cause; and (2) whether the officers’ conduct during the investigation of the grow house, including remaining outside the house awaiting a search warrant is, itself, a Fourth Amendment search. For more details on the case see this SCOTUSblog post.