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July 20, 2021 Cert Alert

Supreme Court Cases of Interest

Anthony Franze

At the time this column went to print, the Supreme Court had issued opinions in just over half of its criminal law–related cases for the 2020-21 term. In this edition, we focus on two of those decisions, both with unusual facts and both with broader implications for pressing issues of our times: police violence and immigration.

In Torres v. Madrid, a closely watched Fourth Amendment case, the question presented was “whether a seizure occurs when an officer shoots someone who temporarily eludes capture after the shooting.” In a 5-3 opinion written by Chief Justice John Roberts, the Court held, “the answer is yes: The application of physical force to the body of a person with intent to restrain is a seizure, even if the force does not succeed in subduing the person.”

Michael Dreeben, one of the country’s leading Supreme Court advocates and experts in criminal law, said, “Torres accords with common sense: when the police wound a suspect through gunfire, the Constitution takes hold even if the suspect escapes.” Still, the question divided the Court. As renown scholar Professor Dan Epps noted, though the holding in Torres “comports with common sense and intuitions of fairness,” the case “presented real difficulties in regard to textual interpretation and history—concerns that caused some of the more originalist-leaning justices, Justices Thomas and Gorsuch, to vote against the plaintiff despite their usual fondness for Justice Scalia’s jurisprudence.” The ruling, Epps said, “preserves an avenue for constitutional redress in police shooting cases presenting similar facts. More generally, though, it suggests that pragmatism may continue to hold sway over strict formalism in constitutional interpretation at the Court.”

Dreeben added, “the holding sends an unmistakably modern message: police shootings—an all-too-frequent contemporary occurrence—are governed by the Fourth Amendment.”

In Pereida v. Wilkinson, another 5-3 decision, the Court held that noncitizens seeking relief from deportation have the burden of showing that they have not been convicted of a disqualifying criminal offense. Under the Immigration and Nationality Act, noncitizens subject to deportation who have a long history in the United States and close relatives who are U.S. citizens or lawful permanent residents are eligible to apply for a benefit that would cancel their deportation based on hardship to these relatives. But this benefit is unavailable to individuals who have been convicted of a “crime of moral turpitude.” The Court held that noncitizens cannot meet their burden of showing eligibility when their criminal record is unclear on whether they were convicted of a crime that disqualifies them from relief.

Professor Kate Evans, a prominent scholar and director of the Immigrant Rights Clinic at Duke law school, said that “the ruling creates new complications for noncitizens who have been convicted under statutes that can be divided into offenses that disqualify them for immigration relief alongside offenses that do not. The problem for Mr. Pereida was that his court record did not demonstrate which offense, within a divisible statute, he was convicted of. The Court, therefore, concluded that he could not meet his burden of proof to demonstrate he was not disqualified from deportation relief.” As for the practical import of the decision, Evans said that “immigration counsel and defense counsel will face additional demands to work together to ensure that criminal court records preserve eligibility for relief from removal through careful plea agreements going forward and post-conviction relief for those now facing the impact of Pereida on convictions in the past.”

Below are the other criminal law–related cases of the term, and new cases added to next term’s docket.


Opinions as of June 3, 2021

Military Justice—Statute of Limitations

United States v. Briggs, No. 19-108
Decided: December 10, 2020
Holding from Court’s Syllabus:

The Uniform Code of Military Justice (UCMJ) has long provided that a military offense, “punishable by death, may be tried and punished at any time without limitation.” 10 U.S.C. § 843(a). Other military offenses are subject to a 5-year statute of limitations. § 843(b). Respondents are three military service members, each convicted of rape. When they were charged, the UCMJ provided that rape could be “punished by death.” § 920(a) (1994 ed.). Because this Court held that the Eighth Amendment forbids a death sentence for the rape of an adult woman, Coker v. Georgia, 433 U.S. 584, respondents argue that they could not, in fact, have been sentenced to death, and therefore the UCMJ’s 5-year statute of limitations applies and bars their convictions. Agreeing, the Court of Appeals for the Armed Forces set aside their convictions. Held: Respondents’ prosecutions for rape under the UCMJ were timely.

Eighth Amendment—Juvenile Sentencing

Jones v. Mississippi, No. 18-1259
Decided: April 22, 2021
Holding from Court’s Syllabus:

In the case of a defendant who committed a homicide when he or she was under 18, Miller and Montgomery do not require the sentencer to make a separate factual finding of permanent incorrigibility before sentencing the defendant to life without parole. In such a case, a discretionary sentencing system is both constitutionally necessary and constitutionally sufficient.

Fourth Amendment—“Community Caretaking” Exception to Warrant

Caniglia v. Strom, No. 20-157
Decided: May 17, 2021
Holding from Court’s Syllabus:

Neither the holding nor logic of Cady justifies such warrantless searches and seizures in the home. Cady held that a warrantless search of an impounded vehicle for an unsecured firearm did not violate the Fourth Amendment. In reaching this conclusion, the Court noted that the officers who patrol the “public highways” are often called to discharge noncriminal “community caretaking functions,” such as responding to disabled vehicles or investigating accidents. 413 U.S., at 441. But searches of vehicles and homes are constitutionally different, as the Cady opinion repeatedly stressed. The very core of the Fourth Amendment’s guarantee is the right of a person to retreat into his or her home and “there be free from unreasonable governmental intrusion.” Florida v. Jardines, 569 U.S. 1, 6. A recognition of the existence of “community caretaking” tasks, like rendering aid to motorists in disabled vehicles, is not an open-ended license to perform them anywhere.

Retroactive Effect of Court’s Prior Unanimous Jury Ruling

Edwards v. Vannoy, No. 19-5807
Decided: May 17, 2021
Holding from Court’s Syllabus:

The Ramos jury-unanimity rule does not apply retroactively on federal collateral review.

Tribal Police Authority

United States v. Cooley, No. 19-1414
Decided: June 1, 2021
Holding from Court’s Syllabus:

A tribal police officer has authority to detain temporarily and to search non-Indian persons traveling on public rights-of-way running through a reservation for potential violations of state or federal law.

Computer Fraud and Abuse Act

Van Buren v. United States, No. 19-783
Decided: June 3, 2021
Holding from Court’s Syllabus:

An individual “exceeds authorized access” when he accesses a computer with authorization but then obtains information located in particular areas of the computer—such as files, folders, or databases—that are off-limits to him.

Cases Argued and Awaiting Opinions

Crimes and Offenses—Armed Career Criminal Act

Borden v. United States, No. 19-5410
Argued: November 3, 2020
Question Presented:

Whether the “use of force” clause in the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(i), encompasses crimes with a mens rea of mere recklessness.

Fourth Amendment—Exigent Circumstances

Lange v. California, No. 20-18
Argued: February 24, 2021
Question Presented:

Does pursuit of a person who a police officer has probable cause to believe has committed a misdemeanor categorically qualify as an exigent circumstance sufficient to allow the officer to enter a home without a warrant?

Possessing a Firearm as a Felon

United States v. Gary, No. 20-444
Argued: April 20, 2021
Question Presented:

Whether a defendant who pleaded guilty to possessing a firearm as a felon, in violation of 18 U.S.C. 922(g)(1) and 924(a), is automatically entitled to plain-error relief if the district court did not advise him that one element of that offense is knowledge of his status as a felon, regardless of whether he can show that the district court’s error affected the outcome of the proceedings.

Sentencing—Crack Offenders

Terry v. United States, No. 20-5904
Argued: May 4, 2021
Question Presented:

Whether pre-August 3, 2010 crack offenders sentenced under 21 U.S.C. § 841(b)(1)(C) have a “covered offense” under Section 404 of the First Step Act.

Cases Granted but Not Yet Set for Argument

Disclosure of Grand Jury Materials in Mueller Report

Department of Justice v. House Committee on the Judiciary, No. 19-1328
Question Presented:

Whether an impeachment trial before a legislative body is a “judicial proceeding” under Rule 6(e)(3)(E)(i) of the Federal Rules of Criminal Procedure.


Crimes and Offenses—Armed Career Criminal Act

Wooden v. United States, No. 20-5279
Question Presented:

Did the Sixth Circuit err by expanding the scope of 18 U.S.C. § 924(e)(1) in the absence of clear statutory definition with regard to the vague term “committed on occasions different from one another”?

[Disclosure: Arnold & Porter is counsel for petitioner]

Death Penalty—Sentencing

United States v. Tsarnaev, No. 20-443
Questions Presented:

1. Whether the court of appeals erred in concluding that respondent’s capital sentences must be vacated on the ground that the district court, during its 21-day voir dire, did not ask each prospective juror for a specific accounting of the pretrial media coverage that he or she had read, heard, or seen about respondent’s case.

2. Whether the district court committed reversible error at the penalty phase of respondent’s trial by excluding evidence that respondent’s older brother was allegedly involved in different crimes two years before the offenses for which respondent was convicted.

Habeas—Standard for Constitutional Error

Brown v. Davenport, No. 20-826
Question Presented:

May a federal habeas court grant relief based solely on its conclusion that the Brecht test is satisfied, as the Sixth Circuit held, or must the court also find that the state court’s Chapman application was unreasonable under § 2254(d)(1), as the Second, Third, Seventh, Ninth, and Tenth Circuits have held?

Section 1983—Favorable Termination Rule

Thompson v. Clark, No. 20-659
Question Presented:

Whether the rule that a plaintiff must await favorable termination before bringing a Section 1983 action alleging unreasonable seizure pursuant to legal process requires the plaintiff to show that the criminal proceeding against him has “formally ended in a manner not inconsistent with his innocence,” Laskar v. Hurd, 972 F.3d 1278, 1293 (11th Cir. 2020), or that the proceeding “ended in a manner that affirmatively indicates his innocence,” Lanning v. City of Glens Falls, 908 F.3d 19, 22 (2d Cir. 2018); see also Laskar, 972 F.3d at 1293 (acknowledging 7-1 circuit conflict).

Sixth Amendment—Confrontation Clause

Hemphill v. New York, No. 20-637
Question Presented:

A litigant’s argumentation or introduction of evidence at trial is often deemed to “open the door” to the admission of responsive evidence that would otherwise be barred by the rules of evidence. The question presented is: Whether, or under what circumstances, a criminal defendant who opens the door to responsive evidence also forfeits his right to exclude evidence otherwise barred by the Confrontation Clause.


Shinn v. Ramirez, No. 20.-1009
Question Presented:

The Antiterrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C. § 2254(e) (2), precludes a federal court from considering evidence outside the state court record when reviewing the merits of a claim for habeas relief if a prisoner or his attorney has failed to diligently develop the claim’s factual basis in state court, subject to only two statutory exceptions not applicable here. In the cases below, the Ninth Circuit concluded that AEDPA’s bar on evidentiary development does not apply to a federal court’s merits review of a claim when a court excuses that claim’s procedural default under Martinez v. Ryan, 566 U.S. 1 (2012), because the default was caused by postconviction counsel’s negligence. The question presented, which drew an eight-judge dissent from the denial of en banc rehearing in each case, is: Does application of the equitable rule this Court announced in Martinez v. Ryan render 28 U.S.C. § 2254(e)(2) inapplicable to a federal court’s merits review of a claim for habeas relief?

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Anthony Franze


Anthony Franze is a lawyer in the Appellate & Supreme Court practice at Arnold & Porter, a regular commentator on the high court and appellate law, and a critically acclaimed novelist.