Supreme Court Review-Preview-Overview

An up-to-date outline of Supreme Court criminal cases
is available here. It covers pending cert grants and decisions from the past and current Terms. Other "cites" of interest are available here.

Thursday, December 01, 2005

Bradshaw v. Richey: Transferred intent in Ohio

In Bradshaw v. Richey, 2005 WL 3144332 (Nov. 28, 2005), the Supreme Court reversed a grant of habeas relief to an Ohio inmate convicted of aggravated murder and sentenced to death. Richey had set fire to an apartment to kill his ex-girlfriend and her new boyfriend; they escaped unharmed by a two-year old daughter died in the fire. Richey was convicted on a theory of “transferred intent.” Federal habeas relief was granted on the ground that Ohio law does not recognize a transferred intent theory.

Reversing, the Supreme Court held that Ohio law does recognize a transferred intent theory in murder cases. The Sixth Circuit erred in applying the rule that limits transferred intent liability for arson, not murder.

The Court also found that the habeas petitioner had waived his ineffective assistance of counsel claim, but remanded the case to the Sixth Circuit for a determination whether the State had itself waived its waiver objection.

Monday, October 17, 2005

Auspicious Beginning?

A bit of trivia: For whom did the Roberts Court rule in its historic first published opinion? It ruled in favor of convicted murderer Paul Allen Dye, who sought a writ of habeas corpus based on prosecutorial misconduct. Check out Dye v. Hofbauer, 546 U.S. ___ (2005) (per curiam) here.

Granting Dye's petition for writ of certiorari, the per curiam opinion of the Court reversed a decision of the Sixth Circuit Court of Appeals that had denied habeas corpus relief on two separate procedural grounds: failure to exhaust the claim in state court and failure to allege the claim with specificity in federal court. The justices overruled both procedural bars, holding the claim was both properly exhausted in state court and alleged with particularity in federal court. As to the first purported bar, the Court determined that the Sixth Circuit erroneously based its exhaustion determination on the lack of ruling on the issue by the state court, rather than on the pleading of the petitioner:

The Court of Appeals examined the opinion of the state appellate court and noted that it made no mention of a federal claim. That, however, is not dispositive. Failure of a state appellate court to mention a federal claim does not mean the claim was not presented to it. "It is too obvious to merit extended discussion that whether the exhaustion requirement . . . has been satisfied cannot turn upon whether a state appellate court chooses to ignore in its opinion a federal constitutional claim squarely raised in petitioner’s brief in the state court . . . ." Smith v. Digmon, 434 U. S. 332, 333 (1978) (per curiam).

As to the other purported bar, the Court found that "[t]he habeas corpus petition made clear and repeated references to an appended supporting brief, which presented Dye’s federal claim with more than sufficient particularity. See Fed Rules Civ. Proc. 81(a)(2), 10(c)."

Hardly a harbinger of liberalism, the Dye opinion is nevertheless an interesting and ironic beginning for the Roberts Court.

Monday, July 18, 2005

Halbert: Michigan must provide counsel on first-tier appeal

In Halbert v. Michigan, No. 03-10198 (U.S. June 23, 2005), the Supreme Court held that the Due Process and Equal Protection Clauses require the appointment of counsel for defendants, convicted on based on their pleas, who seek access to first-tier review (direct appeal) in the Michigan Court of Appeals. The Court thus reaffirmed its holding in Douglas v.California, 372 U.S. 353 (1963), that, in criminal proceedings, a State must provide counsel for an indigent defendant in a first appeal as of right. The Court distinguished Ross v. Moffit, 417 U.S. 600 (1974) in which it held that a State need not appoint counsel to aid a poor person seeking to pursue a second-tier discretionary appeal to the State's highest court or certiorari review to the U.S. Supreme Court. The Michigan constitution was amended to provide that "an appeal by an accused who pleads guilty or nolo contendere shall be by leave of court." Mich. Const., art. I, § 20. Despite the discretionary nature of such an appeal, the Court looked at the function of the state appellate court vis-a-vis the state supreme court and ruled that the appellate court fell within the Douglas category rather than the Ross category. Key to its decision was the fact that the appellate court sat as an error-correcting court deciding the merits of the case and that an indigent defendant was ill-equipped to represent himself on direct appeal.

Felix: Petition does not "relate back."

In Mayle v. Felix, No. 04-563 (U.S. June 23, 2005), the Supreme Court, in another AEDPA statute of limitations case, ruled that Rule 15(c)(2) of the Federal Rules of Civil Procedure, which allows an amended pleading filed after the running of the statute of limitations to relate back to the filing date of the original pleading where the original and amended pleading "arise out of the same conduct, transaction, or occurrence," does not apply where the amended pleading asserts a new ground for relief supported by facts that differ in both time and type from those set forth in the original pleading. Mr. Felix was convicted of murder and robbery in California state court and sentenced to life. His conviction was affirmed on appeal and became final on August 12, 1997. Under the one-year AEDPA statute of limitations, he had until August 12, 1998 to file a federal habeas petition. He timely filed a pro se habeas petition in federal district court on May 8, 1998 in which he raised a Confrontation Clause challenge to the admission of a videotape recording of testimony of a prosecution witness. The court appointed counsel to represent Mr. Felix and on January 28, 1999, counsel filed an amendment to the habeas petition raising a Fifth Amendment challenge to the admission of statements made by Mr. Felix during a pretrial police interrogation claiming that the statements were coerced. Although the amended claim was filed after the one-year statute of limitations, Mr. Felix claimed that the amended claim related back to his timely-filed petition under Rule 15(c)(2) since both claims dealt with the unconstitutional admission of out-of-court statements during the prosecutor's case-in-chief. Reversing the Ninth Circuits' holding that the "transaction" for Rule 15(c)(2) purposes was Mr. Felix's criminal trial, the Supreme Court ruled that such a reading obliterates the statute of limitations. The Court ruled that relation back under Rule 15(c)(2) depends on the existence of a common core of operative facts uniting the original and newly asserted claim. Here, the Court found no such common core of operative facts.

Thursday, June 23, 2005

Gonzalez: Rule 60(b) applies to habeas

In Gonzalez v. Crosby, 2005 WL 1469516 (June 23, 2005), the Supreme Court (7-2) held that a habeas petitioner can bring a motion under Fed. R. Civ. P. 60(b) which challenges not the substance of a federal court’s prior resolution of a habeas petition on the merits, but "some defect in the integrity of the federal habeas proceedings." The Court rejected the Eleventh Circuit’s blanket rule that all Rule 60(b) motions were prohibited because of their inconsistency with the policies of AEDPA.
The Court noted that AEDPA merely limited "applications" for habeas relief, and held that a "claim" in a Rule 60(b) motion would not necessarily qualify as an "application" for habeas relief. The Court stated that Rule 60(b) "has an unquestionably valid role to play in habeas cases," pointing out that it can enable parties to obtain relief from habeas judgments which were mistakenly entered. The Court further noted that potential friction between AEDPA and Rule 60(b) was limited by the "extraordinary circumstances" required to obtain Rule 60(b) relief.
The Court found that Gonzalez had failed to show "extraordinary circumstances" because his only basis for reopening the judgment was that the statute of limitations ground for denying him habeas relief was incorrect in light of a subsequent Supreme Court interpretation of this limitations provision. The Court explained that changes in law do not always provide a basis for reopening cases long final. The Court further faulted the petitioner for his lack of diligence in seeking appellate review of the adverse limitations ruling. Decision here.

Tuesday, June 21, 2005

Stumpf: Triggerman identity

In Bradshaw v. Stumpf, No. 04-637 (June 13, 2005), the Supreme Court held that a defendant entered into a knowing guilty plea, despite the trial court’s failure to explain the specific intent to cause death element of the aggravated murder charge, when the elements of the crime were explained to the defendant by his competent defense counsel, and where the defendant so confirmed on the record.
The Court rejected the argument that Stumpf’s profession of not having been the triggerman was inconsistent with a knowing guilty plea. The Court noted that under Ohio aider and abetter theory, Stumpf could have been guilty of the offense without being the actual triggerman. The Court also rejected the argument that the plea was involuntary because the prosecution later took the inconsistent position that Stumpf was not the triggerman. The Court noted that the precise identity of the triggerman was irrelevant to the conviction.
The Court recognized, however, that the prosecution’s inconsistent position as to whether Stumpf or his accomplice was the triggerman could have affeced his death sentence. The Court pointed out that the Sixth Circuit’s opinion on this subject was ambiguous, because it focused on the validity of the conviction, not of the sentence. The Court therefore remanded the case for further proceedings to address the question of how the prosecutor’s inconsistent position related to the validity of Stumpf’s death sentence.

Monday, June 20, 2005

Rompilla: Ineffective capital counsel

In Rompilla v. Beard, No. 04-5462 (June 20, 2005), the Supreme Court held that capital counsel’s assistance in the penalty phase was constitutionally ineffective when he failed to examine the material he knew the prosecutor would rely on as evidence of aggravation. Counsel failed to examine the court file on Rompilla’s prior felony convictions – a file which was readily available. This was objectively unreasonable, and counsel’s consultation with the defendant’s and his family was not a sufficient substitute. The Court held that the lawyer’s lapse prejudiced the defendant, because the court record would have unearthed mitigation leads – such as the defendant’s mental disorders and organic brain damage and childhood problems probably related to fetal alcohol syndrome.

Miller-El vindicates Batson challenge

In Miller-El v. Dretke, No. 03-9659 (June 13, 2005), the Supreme Court held that a Texas inmate was entitled to prevail on a Batson claim, and therefore was entitled to habeas relief.
The prosecutors used peremptory strikes to exclude 91% of the eligible black venire panelists. The Court found the reasons proffered by the prosecution for striking the black venire members to be "unlikely" and "pretextual." The evidence supported a conclusion that race was a significant factor in determining who was struck and who was not.
Moreover, the prosecution’s practice of "shufflng the cards" did not have racially neutral reasons. Instead, Texas was trying to avoid black jurors.
The Court rejected the Fifth Circuit’s contrary conclusion, finding that it "blinked reality."

Dodd: One year limitations period construed

In Dodd v. U.S., No. 04-5286 (June 20, 2005), the Supreme Court held that the one-year statute of limitations for post-conviction motions pursuant to 28 U.S.C. § 2255 for periods which run from the date on which a right was "newly recognized by the Supreme Court," begins to run on the date the Supreme Court initially recognized the right, not from the date on which the right was "made retroactive."
The Court grounded its interpretation of the limitations provision in the plain language of the statute. The Court recognized "the potential for harsh results" from its interpretation. But the Court held that so long as the result was not "absurd," it was not free to rewrite the statute Congress had written.

Wednesday, June 01, 2005

Deck: Visible Shackles are Inherently Prejudicial

In Deck v. Missouri, No. 04-5293 (May 23, 2005), the Supreme Court held that the Fifth and Fourteenth Amendments prohibit using physical restraints on a defendant during the sentencing phase of a capital trial, unless that use is justified by an essential state interest, such as courtroom security specific to the defendant. The Court noted that the accuracy of a life or death decision is important to a defendant, and that the view of shackles inevitably undermines the jury’s ability to weigh accurately all relevant considerations. The Court faulted the trial judge for failing to weigh all the circumstances. The shackles are presumptively prejudicial. Thus, where a court without adequate justification orders the defendant to wear shackles, visible to the jury, the defendant need not demonstrate "actual prejudice." Rather, the State must prove beyond a reasonable doubt that the shackling did not contribute to the verdict.

Tuesday, May 31, 2005

Arthur Andersen's Corrupt Instruction

In Arthur Andersen LLP v. U.S., No. 04-368 (May 31, 2005), the Supreme Court reversed Andersen’s conviction for violating 18 U.S.C. § 1512(b)(2)(A), which criminalizes "knowingly" persuading another person "corruptly" to withhold or alter documents for use in an official proceeding. Andersen employees destroyed documents pursuant to a document retention policy while an SEC investigation was getting under way.
The Court held that the jury instruction failed to convey the "corrupt persuasion" element of the offense. The Court noted the need to give this element a narrow meaning, noting that the mere persuasion of someone to withhold a document from a government proceeding is not inherently malign. The Court noted that the term "knowingly" applied to the phrase "corruptly persuades," and that accordingly only persons conscious of wrongdoing could be said to "knowingly . . corruptly persuade."
The words of the jury instruction failed to convey this meaning. The district court instructed the jury, at the government’s insistence and over the defendant’s objection, that the "knowingly" element of the offense would be satisfied if the evidence showed an intent to "impede" an investigation. But to "impede" encompasses conduct which is not "corrupt." The use of the word "impede" meant that the word "corruptly" word in the statute provided no limit on convicting a person merely because he withheld information from the government.
Further, citing U.S. v. Aguilar, the government noted that the impeded proceeding had to be foreseen. "A ‘knowingly corrupt persuader’ cannot be someone who persuades others to shred documents under a document retention policy when he does not have in contemplation any particular official proceeding in which those documents might be material."

Wednesday, April 27, 2005

Untimely State Petition Doesn't Toll AEDPA Limitations Period

In Pace v. DiGuglielmo, No. 03-9627 (April 27, 2005), the Supreme Court held that a state post-conviction motion is not "properly filed," within the meaning of the tolling provision of the AEDPA’s statute of limitations, when that motion was denied by the state courts for being untimely under state law. The Court distinguished Artuz v. Bennett, 531 U.S. 4 (2000), which found that a state petition was "properly filed." The Court pointed out that Artuz involved a state dismissal for procedural default, not, with Pace, a state dismissal for untimeliness. A petition dismissed as untimely cannot be considered "properly filed," the Court concluded.

Tuesday, April 26, 2005

Wire Fraud Based on Scheme to Defraud Foreign Government of Taxes

In Pasquantino v. U.S., No. 03-725 (April 26, 2005), the Court held that a plot to defraud the Canadian government of tax revenue violates the federal wire fraud statute, 18 U.S.C. § 1343. The plot involved the smuggling of large quantities of liquor from the United States to evade Canada's heavy alcohol import taxes. The Court found that Canada's right to uncollected excise taxes on liquor is "property" within the wire fraud statute's meaning. Further, the Court found that its construction of § 1343 did not derogate from the common law revenue rule, which prohibits one sovereign from enforcing its tax liabilities in the courts of another sovereign. The Court noted that this criminal prosecution did not have as its purpose the collection of revenues. Further, the prosecution was not the "indirect" enforcement of tax liability collection, and, based on the then-existing caselaw, would not have been regarded as such by the 1952 Congress which enacted the wire fraud statute. In addition, the prosecution poses little risk of the principal evil against which the revenue rule protects: judicial evaluation of the revenue policies of foreign sovereigns. The prosecution was brought by the Executive Branch of the United States government, which is entrusted with primary responsibility for foreign relations. Further, even though part of the criminal judgment involved restitution of the unpaid taxes, this restitution did not matter, as the government had an independent interest in criminal prosecution. The Court also rejected the argument based on the principle of avoiding giving statutes extraterritorial effects, pointing out that the criminal scheme was complete when the scheme was executed in the United States.

Wednesday, April 20, 2005

Foreign Conviction Not a 922(g)(1) Predicate Conviction

In Small v. U.S., No. 03-750 (April 16, 2005), the Court held that the phrase "convicted in any court" contained in the prohibition in 18 U.S.C. § 922(g)(1) on firearm possession by any person convicted in any court of a crime punishable by imprisonment exceeding one year encompassed only domestic, not foreign, convictions.The Court noted that it is appropriate to assume that Congress has domestic, not foreign, concerns in mind when it writes criminal statutes. Further, foreign convictions can involve conduct that is not criminal under Amercan laws. The Court pointed out that in view of the language creating exceptions to the firearm possession prohibition, reading the statute to include foreign convictions could create "anomalies," where a foreign conviction, for example for antitrust violations, would count whereas a domestic one would not. The Court recognized that the broad purpose of the statute of protecting public safety by keeping guns out of the hands of those likely to create a threat would support a broad reading of the law. But it concluded that Congress paid no attention to foreign convictions.

Tuesday, March 22, 2005

Handcuff Detention OK While Executing Search Warrant

In Muehler v. Mena, No. 03-1423 (March 22, 2005), the Supreme Court held that the detention in handcuffs of an occupant of premises which were being search for weapons and evidence of gang membership did not violate the Fourth Amendment and therefore could not give rise to a suit under 42 U.S.C. § 1983.
The Court noted that under Michigan v. Summers, police has the authority to detain occupants of premises while a proper search is being conducted. The use of force in the form of handcuffs to detain Mena was reasonable here because the governmental interest in minimizing the risk of harm to both officers and occupants, at its maximum when a warrant authorizes a search for weapons and a wanted gang member resides on the premises, outweighs the marginal intrusion.
The Court also found no Fourth Amendment violation in the questioning of Mesa about her immigration status. Mere police questioning does not constitute a "seizure."
The Court remanded the case for consideration of Mesa’s argument that the length of her detention violated the Fourth Amendment.

Deference to State Court Under AEDPA

In Brown v. Payton, No. 03-1029 (March 22, 2005), the Supreme Court held that, under the deferential AEDPA standard for federal review of state decisions, the California Supreme Court did not render a decision contrary to, or unreasonably applying, federal law, when it declined to find a constitutional violation in the prosecutor’s incorrect statement in closing argument in the death phase of the trial that a jury could not take account in mitigation of anything that happened after the crime, i.e, the defendant’s post-offense rehabilitation. The trial court gave a standard § (k) instruction that "any other" extenuating factor could be considered.The Court noted that in Boyde v. California, it had upheld the § k instruction, and that the California Supreme Court had relied on Boyde in affirming the defendant’s sentence. The found that the California Supreme Court had applied Boyde to a different set of facts and could not therefore, under AEDPA, be found to be contrary to established federal law.

Tuesday, February 22, 2005

Double Jeopardy After Grant and Retraction of JOA

In Smith v. Massachusetts, No. 03-8661 (Feb. 22, 2005), the Supreme Court held that Double Jeopardy principles barred a trial judge, after granting a motion finding insufficient evidence supported a gun count against a defendant when the prosecution rested its case, to change his mind and reconsider the issue after the defense rested.The Court noted that the trial judge’s ruling on the defense motion regarding the insufficiency of the evidence was in effect an acquittal. The ruling resolved some of the factual elements of the offense charged. And even if the jury was the primary factfinder in the case, the trial judge still resolve factual issues when ruling on Rule 29-type motion.The Court found that the acquittal triggered Double Jeopardy protection. First, the prosecution, after the ruling, did not make or reserve a motion for reconsideration, or seek a continuance. Further, the Massachusetts rules of procedure did not authorize the trial court to defer ruling on the motion. In addition, a defendant is prejudiced when the trial continues and he labors under the mistaken impression that he does not face a risk of conviction as to a certain count. This mistaken impression could lead the defendant to present inadvisable defenses, for example, admitting guilt on the acquitted count. It could also impact how co-defendants present their defense. The Court explained: "The Double Jeopardy Clause’s guarantee cannot be allowed to become a potential snare for those who reasonably rely upon it. If, after a facially unqualified midtrial dismissal of one count, the trial has proceeded to the defendant’s introduction of evidence, the acquittal must be treated as final, unless the availability of reconsideration has been plainly established by pre-existing rule or case authority." The Court noted the dissent’s contention that the defendant suffered no prejudice in this case when the judge reconsidered his ruling, but stated: "requiring someone to defend against a charge of which he has already been acquitted is prejudice per se for purposes of the Double Jeopardy Clause – even when the acquittal was erroneous."

Thursday, January 13, 2005

Booker/Fanfan Opinion Summary

In U.S. v. Booker, No. 04-194 (Jan. 12, 2005), the Supreme Court held that the Sixth Amendment as construed in Blakely applied to the Federal Sentencing Guidelines. In order to reconcile this constitutional holding with the Guidelines scheme, the Court held that two provisions were severed and excised: the provision that makes the Guidelines mandatory, 18 U.S.C. § 3553(b)(1), and the provision governing appellate review of sentences, including de novo review of departures from the applicable Guideline range. Consequently, the Guidelines are no longer binding on sentencing courts. In addition, on appeal, sentences are reviewable for "unreasonableness."
The Court found no basis for not applying the Blakely rule to the Guidelines. The Court noted that the limited availability of departures indicated that the Guidelines mandated sentences in most cases. Mandated sentence enhancements based on facts not authorized by a jury's verdict run afoul of Blakely.
Turning from the applicability of Blakely to the issue of what impact Blakely had on the Sentencing Reform Act, the Court found that Congress would not have wanted to engraft a Sixth Amendment constitutional requirement on the Guidelines. Further, Congress would have preferred excission of mandatory language to the invalidation of the entire Act. The Court emphasized that Congress sought to punish "real conduct," and to do so uniformly. Consequently, Congress would not have wanted to limit punishment to conduct found at trial, but, instead, would have wanted sentencing courts to take account of facts discovered after trial. Further, Congress would not have wanted sentencing to depend on a prosecutor's choice of facts alleged in the indictment, but would have wanted sentencing courts to take account of all relevant facts comprising the "real conduct."
The Court therefore invalidated only parts of the Sentencing Reform Act. The Court severed § 3553(b)(1), which had required courts to impose a sentence within the Guideline range. The Court also severed § 3742(e), which provided, inter alia, for de novo review on appeal of guideline departure decisions. Thus, severed, the Act requires judges to take account of the Guidelines together with other sentencing goals reflected in the Sentencing Reform Act, 18 U.S.C. § 3553(a)(1)-(7). Further, in place of the appeal standards provided in § 3742(e), sentences will be reviewed for "unreasonableness."
The Court noted that its decision must be applied to all cases on direct review. The Court pointed out that not every pending appeal will lead to a new sentencing hearing, either because the challenge to the sentence would not satisfy "plain error" review if the issue was not raised below, or because a sentence may survive harmless-error review. [Note: Any pending appeal which challenged a district court's denial of a downward departure would appear to be eligible for Booker-reversal, because the district court likely denied the departure in part based on the (now-mistaken) view that departures were foreclosed because the Sentencing Commission had adequately taken all relevant factors into account. Also eligible for Booker-reversal, it appears, are all cases in which a defendant challenged the mandatory character of a Guideline enhancement, or, more generally, the validity of the Guidelines].

Tuesday, January 11, 2005

Section 1956(h) Conspiracy Does Not Require Overt Act

In Whitfield v. U.S., No. 03-1293 (Jan. 11, 2005), the Supreme Court held that proof of a conspiracy to commit money laundering in violation of 18 U.S.C. § 1956(h) does not require proof of an overt act in furtherance of the conspiracy. The Court noted its rule of statutory construction for conspiracy statutes, which provides that a conspiracy statute will not be interpreted to make an overt act an element of the offense unless the statute expressly provides such a requirement. The money laundering statute at issue, like the drug conspiracy statute in U.S. v. Shabani, 513 U.S. 10 (1994), did not contain an express overt act element. Hence, no overt act element would be required to prove the offense. The Court rejected the argument that § 1956(h) did not create a separate offense, but merely increased the penalties for a traditional 18 U.S.C. § 371 conspiracy to money launder – an offense which did contain an overt act element. The Court found that the plain language of § 1956(h) showed that it established an offense. Moreover, the legislative history was consistent with this interpretation. Finally, the Court rejected an argument based on the venue provision of the law, finding that by allowing venue to lie in any district in which an overt act was committed in furtherance of the conspiracy Congress did not make an overt act an element of the offense.