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.