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Supreme Court Grants Cert on Aiding/Abetting Use of a Firearm; Issues Opinions in Two Habeas Cases

Yesterday, the Supreme Court granted cert in Rosemond v. United States (No. 12-895) to address the elements required to prove the offense of aiding and abetting the use of a firearm during and in relation to a crime of violence or drug trafficking crime. In addition, the Court issued opinions in Trevino v. Thaler (No. 11-10189), allowing the petitioner's IAC claim to survive notwithstanding a procedural default, and McQuiggen v. Perkins (No. 12-126), holding that an actual innocence claim can survive the expiration of AEDPA's statute of limitations.  

In Rosemond, the Court will determine whether the offense of aiding and abetting the use of a firearm during and in relation to a crime of violence or drug trafficking crime, in violation of 18 U.S.C. §§ 924(c)(1)(A) and 2, requires proof of (i) intentional facilitation or encouragement of the use of the firearm, as held by the First, Second, Third, Fifth, Seventh, Eighth, Ninth, and Eleventh Circuits, or (ii) simple knowledge that the principal used a firearm during a crime of violence or drug trafficking crime in which the defendant also participated, as held by the Sixth, Tenth, and District of Columbia Circuits.

In Trevino the Court held that when a state’s procedural framework, by reason of its design and operation, makes it highly unlikely in a typical case that a defendant will have a meaningful opportunity to raise on direct appeal a claim that his trial counsel provided ineffective assistance, the good cause exception recognized in Martinez v. Ryan applies.  '[A] procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective.'"  Whether raising such claims on direct appeal is explicitly barred, as in Martinez, or implicitly barred, as in Trevino, "[i]n both instances failure to consider a lawyer's 'ineffectiveness' during an initial-review collateral proceeding as a potential 'cause' for excusing a procedural default will deprive the defendant of any opportunity at all for review of an ineffective-assistance-of-trial-counsel claim." For an analysis of the opinion see this SCOTUSblog post.

The Perkins majority held that "actual innocence, if proved, serves as a gateway through which a petitioner may pass whether the impediment is a procedural bar, as it was in [Schlup v. Delo and House v. Bell], or as in this case, expiration of the statute of limitations."  The Court, however, also clarified that "[u]nexplained delay in presenting new evidence bears on the determination of whether the petitioner has made the requisite [miscarriage of justice] showing."  In other words, "[u]ntimeliness, although not an unyielding ground for dismissal of a petition, does bear on the credibility of evidence proffered to show actual innocence."  For more on the case, see this SCOTUSblog post.


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