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.

Monday, January 22, 2007

Government & Friends File Rita & Claiborne Briefs

On the heels of the Court's Cunningham decision earlier today, the Solicitor General filed the government's briefs in Rita and Claiborne. In case the SG missed something, the U.S. Sentencing Commission weighed in, adding its self-defense by filing an amicus brief for both cases. Three prominent Senators -Kennedy, Hatch and Feinstein - filed as amici in support of affirmance in the Claiborne case. In addition to briefs, the government filed appendices, including relevant constitutional and statutory provisions and separate statistical analysis in appendix 31a and 32a. The petitioner's filings and their amicus briefs were collected here last month. Oral argument will occur February 20. Preparation of reply briefs and moot courts will fill counsels' days between now and then.

Cunningham: California's DSL Struck Down

In Cunningham v. California, No. 06-6551 (Jan. 22, 2007), the Supreme Court held that California’s determinate sentencing law (DSL) violates the rule of Apprendi, because it authorizes a judge to enhance a sentence based on aggravating facts found by the judge, not the jury. California’s DSL provides for a middle term and upper term sentence, with the middle term being applicable unless a judge found aggravating facts, in which case the judge was authorized to impose the upper term.

The Court noted that, like the sentencing schemes it had previously struck down, California’s DSL authorized judges to increase sentences based on findings of facts by judges.

The Court rejected the argument that the upper term of a possible sentence, not the middle term, should be viewed as the maximum for constitutional purposes. The Court noted that the jury’s verdict alone would not authorize a sentence above the middle term.

The Court also rejected the argument that California’s DSL survived scrutiny because it preserved jury fact finding for some enhancements. The Court noted that Apprendi established a "bright line rule."

The Court also rejected the attempt to equate California’s DSL with the post-Booker advisory regime of the Federal Sentencing Guidelines. The Court found that the upper limit provision of California’s DSL was not a "reasonableness constraint." Further, the reasonableness constraint is not a substitute for Sixth Amendment constraints, but a requirement for the federal system to operate within constitutional constraints: "Booker’s remedy for the Federal Guidelines, in short, is not a recipe for rendering this Court’s Sixth Amendment case law toothless." The majority noted that two pending federal cases, Claiborne and Rita, [discussed here] will address the federal reasonableness standard created by Booker. The only dissenters were Justices Kennedy, Breyer and Alito. Chief Justice Roberts joined the majority decision; together with Justice Ginsburg, and the four Booker-remedial dissenters, they formed a new and stronger majority on Apprendi-Blakely jurisprudence that may foretell a different path than originally appeared post-Booker.

Jones v. Bock: PLRA Exhaustion

Jones v. Bock, 127 S. Ct. ___ (Jan. 22, 2007). Local circuit rules that require an inmate to plead and prove exhaustion in his initial complaint are not required by the Prison Litigation Reform Act. Indeed, Chief Justice Roberts wrote for a unanimous Court, such rules exceed the permissible scope of the PLRA because the exhaustion question is not a pleading requirement, but rather it is an affirmative defense to be raised first by the respondent. Also, the Court held, exhaustion does not require that the inmate name the offending official, nor does the person named in the lawsuit have to have been named at each stage of the exhaustion process. In addition, the Court held that when a petitioner brings a mixed petition with only some exhausted claims, the trial court may not simply dismiss the petition; it must entertain the exhausted claims, while setting the unexhausted claims aside.

Friday, January 19, 2007

Brendlin v. California - 4th Amendment cert grant

Seizure of Passenger in Vehicle During Traffic Stop. Brendlin v. California, 127 S. Ct. ___ (cert. granted Jan. 19, 2007); decision below at 136 P.3d 845 (Cal. 2006) (en banc). Defendant was a passenger in a vehicle driven by another that was subjected to a traffic stop. A search of the vehicle incident to the stop yielded contraband. The passenger entered a negotiated plea of guilty to manufacturing methamphetamine following denial of his motion to suppress the seized evidence The California Court of Appeal reversed, finding that defendant, as a passenger, could challenge the traffic stop, and that the traffic stop was unlawful. The California Supreme Court overruled the Court of Appeal, holding that a passenger in a vehicle stopped by police is not seized as a constitutional matter in the absence of additional circumstances that would indicate to a reasonable person that he was the subject of officer’s investigation or show of authority. The U.S. Supreme Court granted certiorari to review the question: Is a passenger in a vehicle stopped by police seized as a constitutional matter in the absence of additional circumstances that would indicate to a reasonable person that he was the subject of officer’s investigation or show of authority?

Tuesday, January 16, 2007

Joseph v. US: Jury Consideration of Voluntariness of Confession

Joseph v. United States, 127 S. Ct. ___ (cert. denied Jan. 16, 2007); decision below unpublished (3d Cir. 2006). The district court admitted defendant’s confession at trial, but refused to give a jury instruction required by the third sentence of 18 U.S.C. § 3501(a): "If the trial judge determines that the confession was voluntarily made it shall be admitted in evidence and the trial judge shall permit the jury to hear relevant evidence on the issue of voluntariness and shall instruct the jury to give such weight to the confession as the jury feels it deserves under all the circumstances." The Court of Appeals reasoned that this entire subsection was invalidated by Dickerson v. United States, 530 U.S. 428 (2000), which explicitly invalidated the first sentence of 3501(a) (Congressional attempt to overrule Miranda v. Arizona). Cert was denied in this case, but Justice Stevens issued this clarifying statement: "In Dickerson v. United States, 530 U. S. 428 (2000), we held that the first sentence of 18 U. S. C. §3501(a) is unconstitutional. In this case the Court of Appeals affirmed the District Court’s rejection of the petitioner’s request for an instruction relating to the voluntariness of her confession—an instruction that the third sentence of §3501(a) requires. The Court of Appeals reasoned that Dickerson had invalidated all of §3501 and not just the first sentence. As the Solicitor General concedes, that holding was erroneous. While I am persuaded that the arguably harmless character of the trial judge’s error provides a proper reason for denying the petition for certiorari, I think it important to note that our denial does not endorse the incorrect reasoning in the opinion of the Court of Appeals."

Tuesday, January 09, 2007

Burton v. Stewart: Retroactivity of Blakely

Burton v. Stewart, 127 S. Ct. ___ (2007). Burton received an exceptional sentence of 258 months above the 305 month ceiling of the statutory range. The sentence became final after Apprendi v. New Jersey but before Blakely v. Washington. Questions presented: (1) Is the holding in Blakely a new rule or is it dictated by Apprendi? (2) If Blakely is a new rule, does its requirement that facts resulting in an enhanced statutory maximum be proved beyond a reasonable doubt apply retroactively? Rather than answer these questions, the Court issued a per curiam decision holding that the district court lacked jurisdiction to hear the habeas corpus petition because it had not been filed as required by the AEDPA gateway; this was a second or successive petition for which permission had not been granted under 28 U.S.C. § 2244(b). The per curiam decision reversed all proceedings and held that the habeas proceeding must be dismissed, leaving the questions raised to be answered in the future.

US v. Resendiz-Ponce: Omitting Elements from Indictment

United States v. Resendiz-Ponce, 127 S. Ct. ___ (Jan. 9, 2007). Cert petition by government to determine whether the omission of an element of a criminal offense from a federal indictment can constitute harmless error. Here, the indictment for unlawful reentry failed to allege an overt act, an essential element of the crime, and Ninth Circuit precedent therefore dictated that the conviction must be reversed even though the government presented uncontested proof of an overt act at trial. After oral argument, the Court asked for additional briefing on the underlying question: Was the indictment defective? Rather than answer the government’s question on harmless error, the Court (Stevens, J.) held there had been no error at all, since the indictment was not defective. This obviated the need to decide the harmless error issue. Justice Scalia dissented, contending that the indictment was defective and that left him as the only justice willing to address the original question. "Since the full Court will undoubtedly have to speak to the point on another day (it dodged the bullet today by inviting and deciding a different constitutional issue—albeit, to be fair, a narrower one) there is little use in my setting forth my views in detail. It should come as no surprise, given my opinions in United States v. Gonzalez-Lopez, 548 U.S. ___ (2006), and Neder v. United States, 527 U.S. 1, 30 (1999) (opinion concurring in part and dissenting in part), that I would find the error to be structural."