Supreme Court takes up Sex Offender Issues

The Court, already committed to one ruling on laws involving sex offenders, on Wednesday added another: Carr v. U.S., 08-1301. That case, from Indiana, asks the Court to interpret the Sex Offender Registration and Notification Act of 2006, requiring those convicted of sex crimes to register with state and federal databases. The question before the Court is whether it was unconstitutional for the U.S. Attorney General to apply the law retroactively to an individual whose underlying crime occurred before the law was enacted by Congress — in other words, an “Ex Post Facto” clause issue. (The other sex offender case the Court has on its decision docket, but not yet scheduled for argument, is United States v. Comstock, 08-1224, testing the constitutionality of continued imprisonment of a sex offender considered to be dangerous, after that individual has completed serving a prison sentence for the crimes.)

Docket: 08-1301
Title: Carr v. United States
Issue: Whether a person may be criminally prosecuted under 18 U.S.C. § 2250 for failure to register when the defendant’s underlying offense and travel in interstate commerce both predated the Sex Offender Registration and Notification Act’s enactment ; whether the Ex Post Facto Clause precludes prosecution under § 2250(a) of a person whose underlying offense and travel in interstate commerce both predated SORNA’s enactment.

• Opinion below (7^th Circuit)
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply

False Evidence: Fabrication, Subornation of and Use at Trial,

My pet issue has made it to the Supreme Court:

Whether a prosecutor may be subjected to a civil trial and potential damages for a wrongful conviction and incarceration where the prosecutor allegedly violated a criminal defendant’s “substantive due process” rights by procuring false testimony during the criminal investigation, and then introduced that same testimony against the criminal defendant at trial.

The case is Pottawattamie County et al v McGhee et al. (at Scotus wiki).

Far from impairing the judicial process, prosecutors must be held accountable for bad conduct. The judicial system would benefit greatly from the credibility this lends to notions of justice contrary to the arguments presented by petitioners.

Thesis: Supreme Court & Public Opinion

Friedman’s thesis about the influence of public opinion on the Supreme Court sees the justices and the people as partners in a “marriage” that bypasses the elected legislature and the president.

The Will of the People

Actual Innocence in Scotus

Here is a link to WP picking up a Scotus order for a hearing in the case of a Georgia man on death row who has put forward recantations of seven witnesses in support of his claim that he is innocent.

Section 1983, DNA, Claims of Innocence (and Potty Fodder for Newsletter)

Here is a new cert grant in a DNA evidence case, District Attorney’s Office v. Osborne (08-6) courtesy of SCOTUSBLOG. An implied question is whether an inmate has a right under the Fourteenth Amendment, after conviction, to seek that type of evidence when the right is based upon the Supreme Court’s 1963 ruling in Brady v. Maryland, requiring prosecutors to turn over evidence that would help the accused’s defense.

Fodder for the Newsletter, which I promise will be out before December. Now for the POTTY FODDER UPDATE, Dahlia Lithwick gives us the following in Slate: (Shit Doesn't Happen, The Supreme Court's 100 percent Dirt-Free Exploration of Dirty Words)

FCC v. Fox Television is not a First Amendment case. It's a First Amendment-minus case, in that while the various justices insist that it need not be decided on constitutional grounds, it nevertheless provokes one of the best First Amendment debates I have ever heard. Since the Supreme Court decided FCC v. Pacifica in 1978, which found the midday radio broadcast of George Carlin's "Filthy Words" monologue to be indecent, the FCC rule has been this: The agency may regulate a daytime broadcast of the sort of "verbal shock treatment" of the Carlin monologue, but it will overlook the "isolated use" of one-off potty words. A 2001 clarification of the FCC policy provided that a finding of indecency requires that the naughty word "describe or depict sexual or excretory organs or activities" and be "patently offensive as measured by contemporary community standards."

Enter Bono, who accepted his 2003 Golden Globe with the heartfelt (live) declaration that the honor was "really, really fucking brilliant." Oh. And Cher, who received her 2002 Billboard music award with the gracious, "I've also had critics for the last 40 years saying that I was on my way out every year. So fuck 'em." And the ever delightful Nicole Richie, who wowed them at the Billboard awards the following year with the observation that "it's not so fucking simple" to remove "cow shit out of a Prada purse."

Annual Review, Criminal

For housekeeping purposes and future review and research, here is a link to a "terrific" summary of the USSC term as compiled by Prof. Rory Little of Hasting Law.

Habeas and Unconstitutional Deference

The Supreme Court granted petition re: the 28 USC 2254(d) deferential standard of review in the case of Bell v Kelly (SCOTUSwiki preview here). The practical issue is, how do you get to present "new" evidence that was lost previously through your lawyer's conduct or misconduct, (or the governments sleight of hand, or procedure) when the standard of review won't allow for a fresh look at all the circumstances, but only a "reasonableness" test brushing over what is already in the record below? Petitioner took issue that the state court proceedings did not afford a full and fair hearing, sufficient to consider the element of prejudice. Finding no prejudice, but affirmative deficient performance, the courts below had denied relief.

To noone's surprise, there is a split in the circuits. Technically, it might be phrased: (1) whether the deferential 28 U.S.C. § 2254(d) standard should apply to a claim resting on evidence that the state court did not consider and was thus introduced for the first time on federal habeas.

It occurred to me reviewing the briefs (available at SCOTUSblog wiki) that the adverse position makes a good practical case in point for why the statute is facially unconstitutional: following the dictates requires no substantive review, contrary to the traditional, constitutional role of higher court review.

Do we want our higher courts rubber stamping decisions in other areas as well? Not, hopefully.

An argument schedule for cases in Nov. follows:

Mon., Nov. 3

Wyeth v. Levine (06-1249) — federal preemption of state drug labeling law

Ysursa v. Pocatello Education Association (07-869) — state legislative control of county and city payroll policies

Carcieri v. Kempthorne (07-526) — federal power to set aside land for Indian tribes’ use

Tues., Nov. 4

FCC v. Fox Television Stations (07-582) — scope of federal law on use of single or fleeting use of “indecent” words on radio and TV

U.S. v. Eurodif (07-1059) and USEC v. Eurodif (07-1078) — federal power to impose “anti-dumping” fees on imports (cases consolidated for one hour of argument)

Jimenez v. Quarterman (07-6894) — clarification of one-year filing deadline for habeas petitions

Wed., Nov. 5

Negusie v. Mukasey (07-499) — availability of asylum in U.S. for individual who formerly was a prison guard abroad

Van de Kamp v. Goldstein (07-854) — legal immunity for supervisors of prosecutors at the trial level

Mon., Nov. 10

Chambers v. U.S. (06-11206) — failure to report to jail as “violent felony” under federal armed career criminal law

U.S. v. Hayes (07-608) — ban on gun possession after conviction for domestic violence

Melendez-Diaz v. Massachusetts (07-591) — right to confront at trial a forensic expert who prepared a crime lab report offered as evidence

Tues., Nov. 11 (legal holiday; no arguments)

Wed., Nov. 12

Pleasant Grove City v. Summum (07-665) — right to display religious monument on government property, including public park

Bell v. Kelly (07-1223) — scope of federal court duty in habeas to defer to state court findings

Scotus Term Summary, 2007-08

New York Times summarizes here, the most important decisions of the Supreme Court term just ended, leading with the Guantanamo Bay habeas/access to courts decision, Boumediene v. Bush, No. 06-1195, (the guarantee of habeas corpus applies at the Navy base in Cuba, the court said, and the truncated alternative procedure that Congress set up was not an adequate substitute.).

Not very surprisingly, the decision was “no bolt out of the blue” according to the majority. The minority (Justice Scalia for one) strove mightily to instill fear, the fear of deaths of more Americans, as a direct result of the decision.

Curious, how justices can disagree so drastically on the nature of a notion of what it means to live, and govern, under the rule of law.

What one hand giveth, the other taketh away: By contrast to the sharp division in the Guantánamo case, the court was unanimous in another case on the availability of habeas corpus. It rejected the Bush administration’s argument that two United States citizens facing criminal charges in Iraq, and held in that country by the American military, could not seek federal court review of their detention. The two were entitled to file habeas corpus petitions, Chief Justice Roberts wrote for the court in Munaf v. Geren, No. 06-1666. Proceeding to the merits of the petitions, the court ordered them dismissed on the ground that holding the men while awaiting further action by the Iraqi authorities did not violate their rights.

The Times counts five access to courts decisions deserving of mention.

Of the ten criminal cases deserving mention, two involved sentencing after Blakely: Gall v. United States, No. 06-7949, (upheld a trial judge’s refusal to impose prison time on a young drug offender, despite the sentence of 30 to 36 months called for by the guidelines), AND Kimbrough v. United States, No. 06-6330 (the court upheld a lower sentence for a man convicted of a crack cocaine offense than the guidelines called for under a formula that treated crimes involving crack cocaine much more harshly than those involving cocaine in its powdered form. Justice Ginsburg wrote the opinion. Both cases were decided by the same 7-to-2 alignment, with Justices Thomas and Scalia dissenting). Others involved the lethal injection challenge, death penalty for rape of a child, money laundering, and another had implications for international law.

Texas Justice Redux

Here is some more recent "Texas Justice" from the Fifth Circuit. Read that together with this from UK judges remarking on efforts to install an federal style sentencing "grid" system across the pond. Wow, Professor Berman, good work. If you thought judges should curb excesses of the legislature that have proven to be very, very foolish you'd be wrong respecting the Fifth.

And then, updating the topic there is this from Grits, who is devoted to the topic, on something as mundane as a data entry error that caused SCOTUS to have to weigh in. That would be the Rothgery decision (the opinion is at the link) from the current Supreme Court term. Here is analysis from Grits:

What's the significance? In the past, a defendant was not entitled to counsel at their bail hearing unless they couldn't make bond or bail was denied. In that case they had counsel appointed fairly quickly. But in the case where a defendant makes bond but also requests a lawyer, Texas courts previously held the defendant could not get a court appointed lawyer until they were indicted, leaving indigent defendants for weeks in limbo with no legal adviser. Now SCOTUS has said courts must appoint counsel for indigent defendants at their bail hearing.

That's how most other states do it; Texas had just been skimping by not appointing counsel earlier. According to the opinion, "The Court is advised without contradiction that not only the Federal Government, including the District of Columbia, but 43 States take the first step toward appointing counsel before, at, or just after initial appearance. To the extent the remaining 7 States have been denying appointed counsel at that time, they are a distinct minority."

PREVIOUS POST ON TOPIC:
Here is my earlier verbose-but-important post on Rothgery.

Rothgery Argument in Supreme Court

a policy of denying appointed counsel to arrestees released from jail on bond and by failing to adequately train and monitor those involved in the appointment-of-counsel process.

This is at the core of Rothgery v. Gillespie County, (scotusblogwiki) to be argued today in the Supreme Court. My prediction is that plaintiff Rothgery wins, case returns to the District Court for further proceedings.

Curious that the question arises in the context of a civil rights action. But he's already won his criminal case and is now seeking redemption, damages, for the violation. Loss of income, etc., for having to sit in jail in order to get a lawyer appointed, among other things. He is just one of the lucky ones who was actually innocent and won. Until we find a way to make counties and states pay for violations and policies that result in violations it seems clear to me that said violations will continue.

No wonder the County is fighting so hard to maintain their own, clearly wrong, policy.

The case has special significance for me because I was one of those in another county in Texas who was denied appointed counsel because I had made bond. I was also not even aware of the examining trial process to probe the existence of probable cause until today, when I read about it in the Fifth Circuit's opinion.

Even though he'd been arrested, brought before a magistrate, and read Miranda rights, according to the Fifth Circuit Panel,

the summary judgment evidence fails to establish that adversary judicial proceedings had been initiated against Rothgery during his magistrate appearance.

Here is my question, getting technical, if as the court says the affidavit was filed only to establish pc for arrest and not to initiate charges, if the hearing was not an "arraignment" which concededly triggers the right to counsel, why would Rothgery need to be held on bail? Why would he need a Miranda warning? Didn't Mirandization trigger the right to counsel all by itself?

And isn't getting pc for arrest the initial step in filing charges? Should we presume that arrests do not initiate adversary proceedings? Until when do they not initiate them. Until a prosecutor decides not to prosecute. Does that make sense? Not to me. So, in the court's opinion here, "investigation" is not an adversary proceeding. That almost makes sense until you see the circumstances in which the investigation was being conducted, and by whom. Until Rothgery's own lawyer got involved nobody thought to check the bona fides of the California "conviction." That's an investigation?

I must be too dumb to understand the reasoning behind the opinion. In fact, I confess, I see only conclusory statements and little reasoning.

UPDATE: Transcript of oral argument is here.
Thanks as always to Scotusblog.
FURTHER UPDATE: I notice that Bill Long, here, agrees with my assessment, although he blogged on it earlier I only noticed this now in reviewing who else has been blogging on it. Not many so far. Simple Justice on it here. Grits here (the comments are interesting). Orin Kerr here. I guess I was aware of the "examining trial" but by another name, preliminary hearing.

"Supreme Court , Inc." in Numbers

Reading this made me feel exactly the way I felt after seeing No Country for Old Men, which won Best Pic: The bad guys are getting away with murder. So what? Here's a little snippet from a review of Alterman's new book, Why We're Liberals, by Scott McLemee who serves on the board of the National Book Critics Circle.

Immanuel Kant (a liberal) said the three questions facing philosophy were “What can I know?” “What ought I to do?” and “What can I hope for?” Politics is philosophy continued by other means, so these puzzlers still apply.

Well, we know, from the polling data, that the right wing’s claim to speak for the majority of American opinion is untrue. But Alterman never really addresses what liberals (or progressives, or whatever) ought to do. Nor, subtitle notwithstanding, does he ever address what one might reasonably hope for in the post-Bush world.

Back on topic, quoting Rosen, "exactly how successful has the Chamber of Commerce been at the Supreme Court? Although the court is currently accepting less than 2 percent of the 10,000 petitions it receives each year, the Chamber of Commerce’s petitions between 2004 and 2007 were granted at a rate of 26 percent, according to Scotusblog. And persuading the Supreme Court to hear a case is more than half the battle: Richard Lazarus, a law professor at Georgetown who also represents environmental clients before the court, recently ran the numbers and found that the court reverses the lower court in 65 percent of the cases it agrees to hear; and when the petitioner is represented by the elite Supreme Court advocates routinely hired by the chamber, the success rate rises to 75 percent."

Talking public safety, businesses will surely be encouraged to keep unsafe products on the shelf longer, and be slower to make improvements. 'By and large, the Supreme Court defers to agencies that refuse to regulate public health and safety. “The industry has a lot of money, and they can routinely hire the biggest names in the biggest firms, while we’re doing it on our own,” Zieve, of Public Citizen, says. “We don’t charge anything — we’re free. It didn’t cost $250,000 to get us to write the brief.”'

Jeffrey Rosen, NYT Magazine

Comments?

Reviewing Wallace v Kato

The Short Skinny on Wallace v. Kato from Scotusblog and a longer piece by Kent (Crime and Consequences), here:

Justice Antonin Scalia wrote for the majority. There were two Justices in partial dissent. The case was Wallace v. Kato (05-1240, download here). In that case, the statute of limitations for filing a civil rights claim was two years, under Illinois law.

The false arrest claim in the civil rights lawsuit by Andre Wallace of Chicago had its origin, the Court ruled, when he appeared before a magistrate after his arrest and was bound over for trial. More than two years elapsed between that date and the day he filed his lawsuit, and thus, the Court decided, the lawsuit was too late.

The Scalia opinion was supported by Chief Justice John G. Roberts, Jr., and by Justices Samuel A. Alito, Jr., Anthony M. Kennedy, and Clarence Thomas. Justice John Paul Stevens joined in the result only, along with Justice David H. Souter. Justice Stephen G. Breyer dissented, joined by Justice Ruth Bader Ginsburg.

The Supreme Court (Danforth opinion), Ohio and Missouri make news this week in the Habeas and Residency Restriction arenas. Get your update from here of course, thanks to Doc Berman.

On Danforth, the headliner here says it all (THANKS SCOTUSBLOG). Was that supposed to be a good thing I wonder, Wanda? To expand the "criminal rights" -- I'm sure it is a magnanimous thing for the Court to allow the States to do that. But read on, and we find we are actually talking about something akin to the retrospective application, or as some say, the "retroactive benefit" of Supreme Court rulings. Chief Justice Roberts dissented, in which Justice Kennedy joined.

Is it only coincidence that retrospective application of laws is also in the spotlight in those Residency challenges? Don't let the big words fool you. What this involves is determining whether the rules of the game can/will be changed in the middle of the fourth quarter, sort of like counting the Florida and Michigan delegates after the DNC said they wouldn't before the vote (or non-vote), because the state's delegations broke, (transgressed?) the Party rules.

That depends, of course, on what the word Justice means to you. The Framers'? I heard something about "restoring habeas" (Obama) in last night's debate with Hilary. Was he speaking only about Guantanomo detainees? Barrack also mentioned the phrase "wrongful convictions." This is clearly something to be redressed through a pardon or a more muscular Habeas process. There must be consequences for those who would callously engage in behavior designed to produce wrongful conviction of innocent individuals.

Here is an interesting, if tangential discussion arising out of Danforth on Scotusblog's site.

“…while on your website you claim this is relevant to constitutional habeas.”

If by “constitutional habeas” you mean habeas as required by the Suspension Clause, the only point in today’s decision relevant to that question is the Court’s acknowledgment that common law habeas (and therefore the Suspension Clause) was limited to jurisdictional questions. That was once a furious historical debate, but it’s largely over, and the Fay v. Noia revisionism lies in ruins.

The primary debate over § 2254(d)– the one in the two law review articles I cited in the beginning and the one before the Ninth Circuit in Irons v. Carey — is all about the statutory writ and whether Congress can, consistently with Article III, require “deference” (actually a limited form of res judicata) to state court judgments in a class of cases where Congress could repeal the jurisdiction entirely if it chose. Today’s holding on the nature of the Teague rule is highly relevant to that debate, as I explained in comment 7, above.

And here's this one concerning Theory: "Blinking on the Bench -- How Judges Decide Cases"

A Cute, if Sardonic, Irony

RATS in robes

sardonic "Like sarcastic, but more in order to cause amusement than insult"

I know, relative to the other Supremes, Roberts is comparatively young, but at 52 years, "young man" seemed a stretch. But like everything else with the Supremes, it's all relative, right? Relative conservatives, relative liberals, relative moderates, relative reactionaries? Well, no -- the latter are pretty clear, the RATS of this court: Roberts, Alito, Thomas, and Scalia -- they're sure to surprise people, if only by how far they'll go to bat for a Republican president. I have no doubt that, should the Democrats actually win the White House in 2008, the RATS will work hard to oppose that new president; they know which party they represent. Rehnquist certainly set that mold for them, and Roberts will follow it. Their creed:

concentrated Republican executive power good,

unchecked corporate power good,

environmental law/regulation bad,

human rights bad,

property rights good,

free speech bad,

economic speech good (e.g., being able to pay for the privilege of said "free" speech, like campaign donors)

That's a pretty reliable barometer of their approach, and I doubt they'll stray from the script much, unless a Democrat wins in '08, then they might oppose concentrated, unchecked executive Democratic power. But we'll see; they might, in principle, maintain that in hopes that the GOP is able to seize power again.

-- Slackie Onassis
Hat tip: How Appealing/Salon

Early Commentary on Cunningham

Thanks to this SCOTUSblog post, you can find the opinion of the Court in California v. Cunningham here (syllabus here). The dissent, written by Justice Kennedy and joined by Justice Breyer, is here. Justice Alito's dissent, joined by Kennedy and Breyer, is here.

From Doug Berman's Sentencing Law and Policy, (link at right). He's already posted 3 times and the comments are hermeneutically expository.

A One Sided View of a SCT Argument

Reviewing Oral Argument in Abdul Kabir FKA (sic) Cole v Quarterman, and Brewer v. Quarterman. Robert C. Owen for Petitioners.

The death cases have instructional value for several reasons. We demonstrate how questions of life and death are treated for the world to see, (apart from what we are NOT accomplishing in Iraq).

The transparency of our system of justice is commendable and remarkable. Death is different. AEDPA and legalistic points aside, these, as do all cases brought before the SCT, spotlight how our system "works" and does not work.

Remember that almost fifty individual prisoners on TX death row will be affected by this decision (have cases pending raising the same issue re the pre-1991 jury instructions). That it takes over 15 years to resolve the matter says something too. I'll let that speak for itself. We can only wish that justice was as speedy as the recent Presidential decision to begin re-utilizing FISA authority for wiretaps.

Preliminary Box Score:
Edward L. Marshall for Texas makes an interesting point about the AEDPA inquiry under Teague and clearly established law (pp 35). He relies on and desperately wants the Court to look at Graham and Johnson, rather than Penry, Tennard (pp 40). But Johnson unfortunately may have been a very narrow fact-based decision, and Owen suggests in any event that the language favoring the state's case must be read in context of other language that does not help it.

Summarizing, the question was whether the jury instructions permitted "meaningful" consideration of mitigating evidence.

Argument:
O begins with: Would the reasonable juror find evidence of mistreatment as a youth as reasons to find defendant more dangerous rather than less dangerous, contrary to the lower courts' earlier findings on this? O noted that the Fifth Circuit in December's Nelson decision (split decision BTW) turned away from its prior position and followed the Court's guidance under Tennard and Smith. For that reason counsel had requested the Court vacate and return the case for reconsideration in light of Nelson.

But Nelson is likely to be challenged, said Ginsburg, resulting in delay.
Stevens thought that these cases are different and there was no reason to wait to decide them. So after about five or ten minutes O turned to the merits (pp7).

CJ Roberts first wanted to compare the evidence with that in Penry. This is precisely how law is made and he gets right to it. Is the case similar enough to follow or different enough to distinguish? He suggested these were "closer" cases. Owens, not conceding that calls them "different" but not closer, returning to the suggestion that the evidence made defendants out to be more not less dangerous (therefore, not mitigating). This is important because the question is whether the instructions permitted a reasonable juror to consider the evidence AS MITIGATING, apart from the question of future danger.

Justice Ginsburg next offers that the evidence even if not as strong as Penry's still really does fall into the category of MITIGATING (only if considered as such under the Tennard line of cases.)

Scalia notes Tennard post-dates the State court decisions in these cases. This is important because under AEDPA the question is whether the State court's decision was "unreasonable". It was Johnson and another case which the State court purported to be following at the time of its ruling. O points out that the Tennard dicta was made in the context of a COA qn. (misunderstanding the thrust of Scalia's remark -- the State decided Tennard in 1997).

When Scalia points out that Tennard did not overrule Johnson, O points out that in Johnson, the evidence in qn was limited to defendant's youth which is coextensive to dangerousness and mitigation, contrary to the cases at bar.

J Alito wants to know more about the similarities with Johnson, and Roberts goes to the specific evidence in Brewer's case, and thinks it is quite different than Penry.

O directs the justices back around to the question at hand, that evidence of mental impairment raises a probable inference of dangerousness in Tennard and Penry, as in the cases at bar.

Roberts makes the point that an absence of a "similar prosecutorial statement in the Cole case cuts against you" (getting very parsimonious in the differences--for Roberts, it is not just the evidence, its nature and character or the lack of it, but also how or if it was presented IN THE LOWER COURTS -- in this instance he felt that the absence of the prosecutor telling the jury about the "mitigating" evidence that O argues the reasonable juror would feel makes defendant more dangerous makes Cole different than Brewer's).

Is it reasonable to make such a fine distinction? How about: My lawyer was tongue-tied at trial, or the prosecutor mucked up and forgot to make a point or two. It is all in what you believe the proverbial "reasonable juror" could objectively believe. Are judges truly qualified to answer that as a matter of "science"? Regardless, these are the sorts of things judges do day-in and day-out. If not judges, do we need psychiatrists for that? I suppose the great thing about American justice is that common sense should prevail, so we appoint and elect judges and justices to define that for us. After all, that is why we call it "common" sense. What a system. Does it work? For whom does it work best? (IMO judges should be drawn from the commuity, receive expense pay only, and go back to their day jobs periodically to re-discover common sense and experience a little humanity and humility. I think I know more than a few lawyers who could benefit too).

Roberts wants very much to believe that a juror COULD, IF SHE WISHED TO, have considered the evidence mitigating. But this does not appear to follow the Court's precedent in Tennard, Penry, but to essentially re-litigate the question whether mental impairment and/or mistreatment creates an inference of dangerousness unless provided a way to be considered as categorically and specifically mitigating. Texas, recognizing the weakness, had reformed this shortcoming by changing the instruction set, in 1991, to allow for that.

Roberts then notes Penry did not establish an absolute rule and thinks maybe O is arguing for such. pp19

O responds that no, the Court need only enforce Penry for Brewer to prevail.
Scalia wants more about the deferential review and O responds that yes, the State court chose between applying the Penry line or the Graham, Johnson and chose wrong. Not only that, the choice was "objectively" unreasonable, he concluded, as necessarily he must.

That is what AEDPA has done for us.

NB. I'll let somebody else do Ed's argument. But if somebody wants it from me my standard hourly rate is $625/hr. That's a joke. [At that rate I'd pay off my student loans in no time, but I wonder why that's not happening].

The tranny is here. (and it is not a GM, Ford or Toyota model -- I prefer Mazda myself).

Reviewing the Criminal Week in SCT

Check out the Motions to vacate in the Brewer and Abdul-Kabir/Cole cases, about which I plan to briefly review the oral arguments from Wednesday:

The Brewer motion to vacate is here. The state's response is here. And the Brewer reply is here.

The Abdul-Kabir motion to vacate is here. The state's response is here. And the Abdul-Kabir reply is here.

The state's letter to the Court regarding both cases is here.

The Questions Presented are here:
(QP in 11284, QP in 11287)
(QP)

The cert. petitions, briefs in opposition, and reply briefs in these cases can now be found here at Supreme Court Times (thanks to Ross Runkel for sending along the information).

Abdul-Kabir v . Quarterman (05-11284, denial of rehearing, panel opinion) and Brewer v. Quarterman (05-11287, denial of rehearing, panel opinion).

[involves another test of whether Texas juries have an adequate opportunity, in capital cases, to consider mitigating factors when deciding whether to impose a death sentence... lawyers say the Fifth Circuit Court has consistently failed to follow Supreme Court precedent on the mitigation issue.]

Hat tip to Lyle over at SCOTUSblog.

Duenas Alvarez, 549 U.S. ___ (2007) (syllabus) was Wednesday's SCT opinion. (HT SCOTUSblog)

Here is my earlier post on Smith:

Fish for Dinner, the B vitamins kicking in now

A Review of the Smith v. Texas Transcript (took much too long):

Fish for Dinner, the B vitamins kicking in now

A Review of the Smith v. Texas Transcript (took much too long):

Jordan Steiker, Esq., batting for Petitioner Smith: harmless error analysis under state law, "when it's predicated on a misunderstanding of Federal constitutional law, is not an independent basis for decision." It's "clearly wrapped up in the Federal claim," pp8.

Issues:
1. Court can/not find error was harmful.
2. There was/not significant mitigating evidence in the case.

Some of the Argument and background: The Supreme Court had ruled earlier that the jury could not fully consider the mitigating evidence under the nullification jury instruction set. On remand the CCA erred and said otherwise, and Petitioner appealed again. Now, up before the Court a second time, Texas argued that its error was conceded (which was a point of contention in the argument). That contrasted with the alternative possible view that CCA ruled Petitioner had been procedurally barred by not entering a proper and timely objection to the nullification instruction (a view held by 4 of the CCA justices and not contradicted by the majority), in which event the merits had not been decided and the Court could now rule de novo; a ruling by the lower court on the merits would require the Supreme Court to give deference to the lower court's findings of fact and conclusions of law. By arguing that the error was harmless under the state standard, Texas sought to paint that determination of harmlessness, and the error, as an independent and adequate state ground and thus untouchable on federal review.

Discussion: Did Petitioner allege a federal constitutional violation? If he did so then regardless of whether the State's curve ball came in high and wide and independent state grounds existed for the State's decision to the contrary, the constitution has been violated. Ball one. Constitutional violations are not necessarily excused by contrary or independent state court rulings. Ball two. The nub is thus whether Smith's allegations on the record supports his claim. Ball three. The claim? That the nullification instruction set violates the constitution and is/was not cured, in that it cannot allow the jury to give full effect to mitigating evidence. Ball Four and walked. As much as some on the Court would like to let States to employ independent and adequate state grounds reviews I do not see how the Court could reverse itself and not grant Petitioner's claim this time as well. Bases loaded.

Hat tip to SCOTUSblog for the link to the tranny and to Aaron Streett of Baker Botts, whose recent post on Gonzales v. Duenas-Alvarez, 05-1629 is here, (on Prawfblawg) for the inspiration.
Dahlia Lithwick here on Day to Day at NPR on the Smith case. (HT Howard Bashman).
My earlier post on the case here.

Today in SCOTUS

The opinion of the Court in MedImmune v. Genentech can now be found here. The syllabus is here. Justice Thomas's dissent is here.

The decision in U.S. v. Resendiz-Ponce can be found here. The syllabus is here. Justice Scalia's dissent is here.

The Court's ruling in Burton v. Stewart can be found here. (hat tip SCOTUSblog). And here, is Prof. Berman's reaction and some interesting comments concerning DIG's. Scot Henson at Grits for Breakfast (blog) might call this another "bench slap".

Here is my humble analysis of Burton, 549 U.S. ___ (2007) (dismissed for lack of jurisdiction, on which issue the state had lost challenges below).

The Procedural Bar is a Bleeping (no laughing matter): The Court sua sponte reviews a question of jurisdiction:

In a nutshell, Burton’s petition raised a question that was not properly "exhausted," and was not "excused" from the requirement (because it was presumably known to him that he might have a legitimate challenge after his sentence became final). As such it was not authorized explicitly as a “second or successive“ petition as required. But requiring authorization to proceed with a second petition presumes that one knows of the status as such.

The problem is that in 1998 when B proceeded with the first petition Apprendi had not been decided so he could not have known of the grounds under which he might challenge his sentence. Only after Apprendi (2000) was decided did he raise the challenge (in the 2002 petition) alleging violation of Apprendi. Is it so clear and obvious that a challenge the basis of which has not yet been “created” should have been foreseen, and therefore could not be excused for not having been foreseen?

The following language from Burton might seem dispositive at first glance (however, the 1998 petition was not a “mixed petition” because unexhausted grounds were not stated and the option to withdraw was not available or sensible; B proceeded with the claims he had at the time. Only after Apprendi “intervened” was he able to raise the sentencing claim under that ruling, and Blakely, posed in the 2002 petition):

That court’s ruling that Burton had a “legitimate excuse,” however, is inconsistent with the precise practice we have explained governs in circumstances such as Burton’s.
The plurality opinion in Rose v. Lundy, 455 U. S. 509, 520.522 (1982), stated that district courts should dismiss “mixed petitions“ --those with exhausted and unexhausted claims--and that petitioners with such petitions have two options. They may withdraw a mixed petition, exhaust the remaining claims, and return to district court with a fully exhausted petition. We have held that in such circumstances the later filed petition would not be “second or successive.” Slack v. McDaniel, 529 U. S. 473, 485.486 (2000). Alternatively, prisoners filing mixed petitions may proceed with only the exhausted claims, but doing so risks subjecting later petitions that raise new claims to rigorous procedural obstacles.

UPDATE: Given that a 28 U.S.C. 2244(b)(3) order was not sought (click for stat.) the Court's decision seems justified, if formalistic. This brings me back around to the question, what if you didn't think you were filing a "second or successive"? I know, this is weak, but only if you are a lawyer.

There just seems something wacky about having to ask for a pre-determination in order to file under a new rule in order to invoke that new rule for relief. Isn't it usually clear from the face of a petition that you are invoking a new rule? So what is the point of erecting these "rigorous procedural obstacles"? Surely this is not "justice" but injustice particularly to those who are not lawyers. Thanks Kent, for your response over at SL and P

Playing Catch (up)

One of my picks from the SCOTUSblog list of Petitions to watch: (IAC/Deference)
Varner v. Thomas (3d Circuit) is here (pdf).

Certs Granted list from Friday here, (again, from SCOTUSblog and Lyle Denniston)

January Hearings List is here (guess from where?)

PS. I started a few new blogs that you can easily link to at top right, and will be moving some of the cool links that are more appropriately placed elsewhere to these new places, soon!

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