Criminal Justice Section  


Criminal Justice Magazine
Fall 2001
Volume 16, Issue 3

Cert Alert

Paul M. Rashkind

2001 TermBegins

The Supreme Court’s 2000 Term has ended and the 2001 Term began on the traditional first Monday in October. Here’s a summary of last year’s decisions and the docket of the 2001 Court. One important development last year was the Court’s implementation of a website,, which contains all orders and opinions of the Court, as well as a searchable docket and copies of oral argument transcripts.

Fourth Amendment

Securing residence during search warrant application. Illinois v. McArthur, 121 S. Ct. 946 (2001). As she finished moving out of their trailer home, Chuck McArthur’s estranged wife, Tera, told the police that "Chuck had dope in there" and that she had seen him "slid[e] some dope underneath the couch." Armed with this probable cause to believe that Chuck had hidden marijuana in his trailer home, police applied for a search warrant for the trailer. During the two-hour application process, police restrained Chuck on the porch while they secured the home. Police refused to allow him to re-enter, unless accompanied by a police officer, who could prevent removal or destruction of evidence. Illinois courts suppressed the small quantity of marijuana found during the search, finding that the restraint violated the Fourth Amendment. The U.S. Supreme Court reversed, holding that the brief seizure of the premises was reasonable under the Fourth Amendment, given the nature of the intrusion and the law enforcement interest at stake.

Probationer’s residence. United States v. Knights, 121 S. Ct. 1955, cert. granted, May 14, 2001; decision below at 219 F.3d 1138 (9th Cir. 2001). Defendant agreed as a term of probation to searches of himself, his property, and his residence. Does such an agreement to searches, without individualized suspicion, constitute valid consent to search by police investigating a crime?

Thermal imaging of home. Kyllo v. United States, 121 S. Ct. 2038 (2001). Without a warrant, police conducted a thermal imaging scan of a residential triplex to confirm their suspicions that marijuana was being grown in one of the units. They found that Kyllo’s roof and one wall of his home were substantially warmer than the neighboring units. Based in part on that information, police obtained a search warrant for the unit, executed it and found pot. Kyllo’s motion to suppress evidence was denied and he entered a conditional guilty plea. The Ninth Circuit held that scanning of the home with a thermal imaging device that detects the waste heat signature of objects, but not of intimate activities, is not a search. The U.S. Supreme Court reversed, holding that thermal imaging is a search, which is presumptively unreasonable without a warrant. The Court found that when surveillance is conducted using a device that is not in general use, to explore the details of a private home that were previously unknowable without a physical intrusion, the surveillance is a search. ( See Silverman v. United States, 365 U.S. 505 (1961); Katz v. United States, 389 U.S. 347 (1967).) Case was remanded for district court to determine if search warrant could be sustained without the thermal imaging evidence, or if some other basis exists for admissibility of the evidence.

Pretext search of vehicle. Arkansas v. Sullivan, 121 S. Ct. 1876 (2001) (per curiam). Sullivan was stopped for speeding and for having an improperly tinted windshield. The officer noticed a hatchet inside the car while obtaining Sullivan’s car documents. Sullivan was arrested. The officers then conducted an inventory search of the vehicle, and found methamphetamine and numerous items of drug paraphernalia. The Arkansas courts granted Sullivan’s motion to suppress, finding that the arrest was a pretext to search his car. The Supreme Court reversed, holding that the Arkansas Supreme Court erred when it interpreted Whren v. United States, 517 U.S. 806 (1996), to permit suppression of evidence when the grounds for a search were "pretextual." The Court reaffirmed Whren’s holding that Fourth Amendment challenges could not be based on the subjective motivations of the arresting officers. The Court rejected the Arkansas Supreme Court’s statement that it was free to provide greater protection under the U.S. Constitution than the U.S. Supreme Court had provided. The Court ruled that while a state is free to impose greater restrictions on police activity as a matter of its own law, it could not go beyond the U.S. Supreme Court on matters of federal constitutional law.

Reasonable suspicion for vehicle stop. United States v. Arvizu, 121 S. Ct. 2214, cert. granted, June 4, 2001; decision below at 232 F.2d 1241 (9th Cir. 2000). After denial of a motion to suppress marijuana found in defendant’s van, defendant entered conditional guilty plea to possession with intent to distribute marijuana. Defendant appealed. The Ninth Circuit reversed, holding that (1) facts that van slowed down after driver spotted law enforcement vehicle, that driver failed to acknowledge law enforcement officer, and that children in back seat of vehicle waved for several minutes, but not towards the law enforcement officer, were not proper factors to rely on to justify an investigatory stop; (2) facts that one minivan stopped in the past month on the same road contained marijuana, that officer did not recognize minivan as belonging to a local resident, that van was registered to an address in a block allegedly notorious for smuggling, and that children sitting in back seat of vehicle had their knees raised, as if they were resting their feet upon something, were entitled to little or no weight in determination of reasonable suspicion; (3) facts that road on which minivan was traveling was sometimes used by smugglers, that minivan was on the road near time that Border Patrol shift changed, and that minivan was type of car sometimes used by smugglers were legitimate and probative to some degree in determination of reasonable suspicion, but were not enough to constitute reasonable suspicion; and (4) taint of illegal stop of vehicle, which was made without reasonable suspicion, was not purged by any intervening events. Supreme Court granted certiorari to consider the standard for determining reasonable suspicion.

Routine traffic stop checkpoints. City of Indianapolis v. Edmond, 121 S. Ct. 447 (2000). Routine traffic checkpoints, set up for the sole purpose of investigating criminal activity, are used in many communities. A predetermined number of cars are pulled over at one time at "narcotic checkpoints," in hopes of catching people using or selling drugs. Motorists are asked to show a driver’s license and car registration, while drug-sniffing dogs walk around the stopped car. The detention lasts approximately three minutes. The Supreme Court held that the checkpoint program in Indianapolis violates the Fourth Amendment. Although the Court has allowed brief, suspicionless seizures at fixed checkpoints to intercept illegal aliens, drunk drivers, and licensure violations, it has never approved a checkpoint program with the primary purpose of detecting evidence of ordinary criminal wrongdoing. Allowing such checkpoints permits police to construct a roadblock for almost any conceivable law enforcement purpose.

Custodial arrest for traffic stop. Atwater v. Lago Vista, 121 S. Ct. 1536 (2001). Gail Atwater drove her truck to soccer practice with her children in the front seat, not secured with seatbelts, which is a violation of Texas law punishable by fine only. Texas law permits a warrantless arrest for this offense. She was stopped, berated by the officer, and ultimately arrested for the seatbelt violation, failure to have her driver’s license, and failure to provide proof of insurance. She pleaded no contest, paid a $50 fine for the seatbelt violation, and the remaining charges were dismissed. She later sued the arresting officer and city for violating her civil rights by arresting her unreasonably for a minor traffic offense that is punishable only by fine. The U.S. Supreme Court held that the Fourth Amendment does not forbid a warrantless arrest for a minor criminal offense, such as a misdemeanor seatbelt violation. "If an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender."

Drug tests of hospital patients. Ferguson v. Charleston, S.C., 121 S. Ct. 1281 (2001). Concerned about cocaine use during pregnancy, a state university hospital and police set up a task force for drug-testing patients, including a required chain-of-custody, and for hospital staff to assist in the prosecution of mothers whose newborn children tested positive for cocaine. The procedure also included drug counseling during the pregnancy. The court of appeals affirmed the procedure, based on "special needs," a Fourth Amendment exception permitting searches under limited circumstances, for non-law enforcement ends. The U.S. Supreme Court reversed, holding that the hospital’s performance of a diagnostic test to obtain evidence of a patient’s criminal conduct for law enforcement purposes is an unreasonable search if the patient has not consented to the procedure. The Court rejected applying the "special needs" exception due to the close involvement of police in the policy and procedure. This allowed the Court to distinguish its earlier drug-testing cases, which had approved testing in non-law enforcement settings.

Unlawful wiretapping sanctions. Bartnicki v. Vopper, 121 S. Ct. 1753 (2001). One of the provisions of the federal (and Pennsylvania) wiretap laws, 18 U.S.C. § 2511(1)(c), bars the intentional disclosure of the contents of a wire, oral, or electronic communication by one who has reason to know that the information was obtained in violation of the interception law. Another subsection imposes civil liability for unauthorized disclosures. An unknown person intercepted cellular phone calls and then delivered the tapes to the media, which broadcast the conversations. The Supreme Court held that the state and federal laws violate the First Amendment to the extent they prohibit disclosure or other use of an unlawfully intercepted communication by one who was not involved in the illegal interception, but who knows or has reason to know that the communication was unlawfully intercepted.

Fifth Amendment

Privilege against self-incrimination. Ohio v. Reiner, 121 S. Ct. 1252 (2001) (per curiam). Reiner was prosecuted for involuntary manslaughter in the "shaken-baby" death of an infant. His theory of defense was that the crime was committed by a babysitter. The babysitter denied any involvement in the crime, but when called to testify at trial, she refused, invoking her Fifth Amendment right to silence. The state granted her transactional immunity and she then testified, a fact that was made known to the jury. Reiner appealed his conviction, arguing that the babysitter’s testimony was improperly bolstered by the immunity, since she denied culpability in the crime and was, therefore, not entitled to invoke the Fifth Amendment. The Ohio Supreme Court agreed that one who denies culpability cannot invoke the Fifth Amendment when called as a witness. The U.S. Supreme Court reversed, holding that a witness has a Fifth Amendment privilege against self-incrimination even though she protests her innocence. "[O]ur precedents dictate that the privilege protects the innocent as well as the guilty. . . ." If the witness has a reasonable fear that her answers to the possible questions might tend to incriminate her, the privilege applies, even though her answers will deny involvement in a crime.

Inmate’s Fifth Amendment privilege against self-incrimination. McKune v. Lile, 121 S. Ct. 1955, cert. granted, May 14, 2001; decision below: 224 F.3d 1175 (10th Cir. 2000). A prison’s sex abuse treatment program requires participants to disclose past misconduct, or suffer reduced personal privileges. There is no confidentiality for disclosures. Question presented: Does revocation of correctional privileges violate Fifth Amendment privilege against self-incrimination when inmate has no liberty interest in lost privileges and revocation is based on refusal to accept responsibility for crime as part of rehabilitation program?

Sixth Amendment

No right to counsel during interrogation of related crime. Texas v. Cobb, 121 S. Ct. 1335 (2001). Cobb was indicted for burglary. He accepted appointment of counsel. Subsequently, without getting counsel’s permission, police initiated interrogation of Cobb about missing residents of the home he burglarized. Cobb gave a statement implicating himself. Texas held that his right to counsel had attached before interrogation, and his subsequent waiver of rights violated Michigan v. Jackson, 475 U.S. 625 (1986), since counsel had not acceded to Cobb’s interview on this occasion. Counsel had previously granted permission for interrogation before Cobb became a suspect in the burglary-murder, but the Texas court held that was not relevant and fruits of this interrogation must be suppressed. The U.S. Supreme Court reversed, holding that the confession was not obtained in violation of the Sixth Amendment right to counsel because the right to counsel in the burglary case did not extend to the "factually-related" murder case. The Court acknowledged that some other courts had extended McNeil v. Wisconsin, 501 U.S. 171 (1991) (right to counsel is "offense specific") based on Maine v. Moulton, 474 U.S. 159 (1985) and Brewer v. Williams, 430 U.S. 387 (1977). But the Supreme Court rejected this interpretation, holding neither case specifically addressed the issue, and that "constitutional rights are not defined by inferences from opinions which did not address the question." To determine whether the new interrogation involves the same offense, or merely a related offense, the Court used the very strict Blockberger test: "The test to be applied to determine whether there are two offenses or one, is whether each [statutory] provision requires proof of a fact which the other does not."

Suspended sentence for misdemeanor. Alabama v. Shelton, 121 S. Ct. 1955, cert. granted, May 14, 2001; decision below: 67 Cr. L. 356 (2000). In light of Argersinger v. Hamlin and Scott v. Illinois, does imposition of suspended or conditional sentence in misdemeanor case invoke the Sixth Amendment right to counsel?

Due ProcessClause

Judicial abrogation of common-law defense. Rogers v. Tennessee, 121 S. Ct. 1693 (2001). Tennessee judicially abrogated the common-law "year-and-a-day rule," which precluded a homicide prosecution unless the victim died within a year and a day of the inflicted injury. Thereafter, Tennessee attempted to prosecute a homicide that occurred five years before the rule was abolished. The U.S. Supreme Court held that the Ex Post Facto Clause does not apply to judicial decisions that retroactively change law; that clause only applies to legislative action. Rather, the Court held that such retroactive court rulings are governed by the Due Process Clause, which considers the forseeability and indefensibility of the change, as gauged by prior expressions of law. Since abolition of the year-and-a-day rule was foreseeable, based on earlier court decisions, its retroactive application was defensible and not a violation of due process.

Constitutionality of Criminal Statutes

First Amendment: Child Online Protection Act. Ashcroft v. American Civil Liberties Union, 121 S. Ct. 1997, cert. granted, May 21, 2001; decision below at 217 F.3d 162 (3d Cir. 2000). Child Online Protection Act, 47 U.S.C. § 231, bans knowingly making communication on the Internet, in interstate or foreign commerce, "that is available to any minor and that includes any material that is harmful to minors." Content is determined by applying "contemporary community standards" to ascertain if the material was designed to pander to minors’ prurient interest. The Third Circuit barred enforcement of the law, holding that it likely violates the First Amendment. The U.S. Supreme Court granted certiorari to consider whether the court of appeals properly barred enforcement of the law on First Amendment grounds because it relies on community standards to identify material that is harmful to minors.

Criminal Procedure

Bar to prosecution for violation of Interstate Agreement on Detainers. Alabama v. Bozeman, 121 S. Ct. 2079 (2001). The Interstate Agreement on Detainers sets forth procedures for lodging and executing detainers on prisoners. Article IV(c) provides that a state may obtain a prisoner and then has 120 days to try the individual after his or her arrival. Article IV(e) provides that if the receiving state returns the prisoner before trial, the charges in that state must be dismissed. Bozeman was serving a federal sentence of imprisonment in Florida. Alabama sought temporary custody of him for firearms charges pending there. They held him overnight in a county jail, took him to court for arraignment and appointment of counsel, and returned him to federal prison that evening. He spent about a day in Alabama. About a month later he was returned to Alabama for trial and he moved to dismiss the Alabama charges based on Art. IV(e). His motion was denied, but the Alabama Supreme Court reversed, holding that the literal language of the agreement required dismissal of the state charges. The U.S. Supreme Court affirmed, holding that the literal language of Art. IV(e) bars further criminal proceedings when a defendant is returned to the original place of imprisonment before trial.

Adequacy of unsigned notice of appeal. Becker v. Montgomery, 121 S. Ct. 1801 (2001). A pro se plaintiff filed a notice of appeal of the dismissal of his civil rights action. He typed his name as counsel, but failed to sign the form. The Sixth Circuit dismissed the appeal, finding that the lack of a handwritten signature was a jurisdictional defect under the Federal Rules of Appellate Procedure. The federal rules also provide that an omission, including a signature, may be corrected promptly after it is called to a party’s attention. Although the Supreme Court did not quarrel with the Sixth Circuit’s view of the jurisdictional nature of the appellate rules, it reversed the dismissal, finding that Rule 11(a)’s directive to allow correction of an omitted signature applies to the notice of appeal, as well as other papers.

Review of adequacy of guilty plea colloquy. United States v. Vonn, 121 S. Ct. 1185, cert. granted, Feb. 26, 2001; reported below at 224 F.3d 1152 (9th Cir. 2000). Is district court’s failure to advise defendant of his right to counsel (as required by Fed. R. Crim. P. 11(c)(3)) subject to plain error review, where defendant fails to posit a timely objection to the oversight? Also, in determining if a defendant’s substantial rights have been violated by the error, is the court of appeals limited to only the transcript of the guilty plea colloquy, or may the appellate court also consider other official parts of the record that occurred prior to the plea colloquy?


Federal Sentencing: career offender; consolidation of priors—appellate standard of review. Buford v. United States, 121 S. Ct. 1276 (2001). Under the career offender provisions of the U.S. Sentencing Guidelines, "related" prior convictions are counted as only one. Defendant claimed that, although prior offenses had not been formally consolidated, they were functionally consolidated by the manner in which they were resolved together. Trial court did not deny that there could be a functional consolidation of cases, but found that these cases had not been, and were, therefore, not related. The Seventh Circuit Court of Appeals affirmed, holding that it should use a deferential standard of review when reviewing district court’s determination of relatedness. The U.S. Supreme Court affirmed, holding that deferential review, not de novo review, is appropriate. The decision is remarkable because it recognizes that prior offenses can be functionally consolidated, a principle that had not previously received wide recognition throughout other circuits.

Civil commitment of sexually violent predators. Seling v. Young, 121 S. Ct. 727 (2001). The State of Washington’s Community Protection Act of 1990 authorizes the civil commitment of "sexually violent predators." A committed person challenged the law "as applied," contending that the commitment failed to meet its designated purposes and was therefore merely punitive. Prior Supreme Court precedent, Kansas v. Hendricks, 521 U.S. 346 (1998), held that a similar commitment scheme—Kansas’s Sexually Violent Predator Act—was facially valid, met substantive due process requirements, was nonpunitive, and, thus, did not violate the Double Jeopardy and Ex Post Facto Clauses. Here, the Supreme Court held that the Washington law could not be subject to an "as applied" constitutional challenge—i.e., that the state manner of enforcement of the Act as to this petitioner’s conditions of confinement was punitive—to circumvent the holding of Hendricks. The Court noted that the plaintiff, held in confinement under the Act, might have other remedies, including showing that the law was actually "punitive" in nature, or by seeking due process relief. The Court did not reach the question whether the overall manner of enforcement of a statute—as to all confinees—could be a factor in determining whether the statute itself was civil or criminal.

Sexually violent predator laws and due process. Kansas v. Crane, 121 S. Ct. 1483, cert. granted, Apr. 2, 2001); reported below at 7 P.3d 285 (Kan. 2000). Does the Fourteenth Amendment Due Process Clause require the state to prove that sexually violent predators "cannot control" their criminal sexual behavior before the state can civilly commit them for residential care and treatment?

Early release programs. Lopez v. Davis, 121 S. Ct. 714 (2001). Title 18 U.S.C. § 3621(e)(2) states that the U.S. Bureau of Prisons "may" reduce a prisoner’s sentence by up to one year if the prisoner completes a residential drug treatment program. BOP has exercised its discretion to categorically deny such relief to convicted felons in possession of firearms and those whose sentences were enhanced for using a dangerous weapon during the commission of a drug offense, even though their offenses were nonviolent. The Supreme Court upheld the BOP regulation, holding that it is a permissible exercise of the BOP’s discretion under § 3621(e)(2)(B).

Death Penalty

Simmons Jury Instructions. Shafer v. South Carolina, 121 S. Ct. 561 (2001). Despite the U.S. Supreme Court’s decision in 1994 in Simmons, the South Carolina Supreme Court held that the decision does not apply in that state, because the state has a new sentencing scheme. Under the new law, as the South Carolina Supreme Court saw it, the defendant could be sentenced to death, life without the possibility of parole, or a mandatory minimum 30 years’ imprisonment. Question presented: Were petitioner’s due process rights under Simmons violated by trial court’s refusal to instruct the jury that "under South Carolina law, [the defendant] would be ineligible for parole if the jury were to vote for a life sentence," and by the South Carolina Supreme Court’s holding that Simmons no longer applies to that state’s capital cases? The U.S. Supreme Court reversed, holding that South Carolina misinterpreted Simmons, since there are not three options under the state’s current sentencing scheme, but only two. If a jury finds an aggravating circumstance it must recommend either death or life without parole.

More Simmons instructions. Kelly v. South Carolina, 121 S. Ct. 2548, cert. granted, June 25, 2001; reported below at 540 S.E. 2d 851 (S.C. 2001). Did South Carolina violate Simmons by refusing to inform capital defendant’s sentencing jury that he would never be eligible for parole if jury sentenced him to life in prison rather than death?

Mitigation instruction. Penry v. Johnson, 121 S. Ct. 1910 (2001). The Supreme Court overturned the death penalty applied to a mentally retarded man because the jury was not properly instructed. The Court, which had previously overturned Penry’s death penalty because of incorrect jury instructions, again held that the jury was not properly instructed. The jury was not fully instructed that it could consider and give effect to the mitigating evidence of Penry’s mental retardation, organic brain damage, and background of abuse as a whole and beyond the scope of the special issues submitted by the court in order to decline to impose the death penalty.

Execution of mentally retarded persons. McCarver v. North Carolina, 121 S. Ct. 1221, cert. granted, Mar. 26, 2001. Is execution of a mentally retarded person unconstitutional, as cruel and unusual punishment? In this case the Supreme Court is agreeing to rehear the issue that was decided adversely in Penry v. Lynough, 492 U.S. 392 (1989) (execution of moderately retarded person is not unconstitutional). In 1989 only the federal government and one state prohibited execution of the mentally retarded, but now there appears to be a national consensus against such executions. Today 11 more states prohibit such executions and 12 states have no death penalty at all.

Collateral Relief

Prisoner’s right to give legal assistance. Shaw v. Murphy, 121 S. Ct. 1475 (2001). Inmates do not possess a special First Amendment right to provide legal assistance to fellow inmates.

Challenging prior convictions used for federal sentence enhancement. Daniels v. United States, 121 S. Ct. 1578 (2001). Defendant was sentenced under the federal Armed Career Criminal Act. He attempted to invoke 28 U.S.C.
§ 2255 to collaterally attack his prior state convictions, used to enhance his sentence, on the grounds of ineffective assistance of counsel. The court of appeals held that section 2255 could not be invoked for this purpose. The Supreme Court affirmed, holding that a defendant may not use federal habeas corpus to reopen his federal sentence and challenge constitutionally infirm prior convictions used for sentencing enhancement. The Court recognized an exception: Defendants can attack a prior conviction if they claim that the conviction was obtained in violation of the right to counsel and they raise that claim at their federal sentencing proceeding ( Custis v. United States). The Court also observed: "We recognize that there may be rare cases in which no channel of review was actually available to a defendant with respect to a prior conviction, due to no fault of his own. The circumstances of this case do not require us to determine whether a defendant could use a motion under § 2255 to challenge a federal sentence based on such a conviction."

Custody requirements under habeas corpus. Lackawanna County, Pa., District Attorney v. Coss, 121 S. Ct. 1567 (2001). Title 28 U.S.C. § 2254 permits habeas corpus relief only if the petitioner is in custody. The defendant’s federal sentence was enhanced based on a prior state sentence that he had fully served. The court of appeals held he should be permitted to challenge the prior sentence, based on ineffectiveness of counsel, and be resentenced, even though he was no longer in custody on the prior sentence. The U.S. Supreme Court reversed, holding that a defendant could not obtain habeas relief under section 2254 for a conviction (with an expired sentence) that was used to enhance another sentence. Daniels was extended to 2254 petitions, but the Custis exception remains in 2254 cases as well.

Tolling habeas time limit when state claim not properly filed. Artuz v. Bennett, 121 S. Ct. 361 (2000). Title 28 U.S.C. § 2244(d)(2) provides that the federal habeas corpus one-year time limitation is tolled during the pendency of a "properly filed" state petition for collateral relief. The state argued that applications are not properly filed in state court, if some of the claims are procedurally barred. The court of appeals held that the time was tolled as long as the petition was filed in state court, without regard for whether it suffered mandatory procedural bar under state law. The U.S. Supreme Court affirmed, holding that time is tolled if the petition is filed in a state court, even if that state court has no power to hear the merits of the application, based on a procedural default that is ascertained only by reading the petition, e.g. failure to raise issue on direct appeal. This probably does not apply to petitions that were time-barred under the state’s rules.

Tolling AEDPA time when federal section 2254 pending with unexhausted claims. Duncan v. Walker , 121 S. Ct. 2120 (2001). The time during which a federal habeas petition is pending (but later dismissed based on failure to exhaust state claims) does not toll the one-year time limitation under 28 U.S.C. § 2244(d).

Procedural default. Lee v. Kemna, 121 S. Ct. 1186, cert. granted, Feb. 26, 2001; reported below at 213 F.3d 1037 (8th Cir. 2000). Does procedural default bar habeas claim that due process was violated by denial of continuance to obtain alibi witnesses, when court personnel misadvised witnesses about their need for attendance? Also, does violation of state procedural rule bars relief despite these facts; and does the actual innocence exception to procedural bar applies to these facts?

Ineffective assistance of counsel; meeting the Strickland prejudice prong for federal Sentencing Guidelines errors. Glover v. United States, 121 S. Ct. 696 (2001). The court of appeals held that, assuming habeas petitioner’s attorney was ineffective at sentencing, a collateral attack was not permitted because the 2-level error caused only a six- to 21-month difference in the sentence; this is insufficiently significant to satisfy the prejudice prong of Strickland v. Washington. The U.S. Supreme Court reversed, holding that the Seventh Circuit erred in engrafting onto the prejudice prong of the Strickland test the requirement that any increase in sentence must meet a standard of significance. Any additional sentence is significantly prejudicial under the Strickland test. The differential in sentence may be applicable, however, under the "deficient performance" prong of Strickland. Thus, a lawyer’s failure to raise an issue may not be legally deficient if the net sentence does not change remarkably; but once the deficiency prong is met, prejudice occurs regardless of the amount of additional sentence it caused.

Ineffective assistance of counsel; conflict of interest. Mickens v. Taylor, 121 S. Ct. 1651, cert. granted and execution stayed, Apr. 13, 2001; reported below at 240 F.3d 348 (4th Cir. 2001). Did the court of appeals err in holding that a defendant must show an actual conflict of interest and an adverse effect in order to establish a Sixth Amendment violation where a trial court fails to inquire into a potential conflict of interest about which it reasonably should have known?

Retroactive application of new rule. Tyler v. Cain, 121 S. Ct. 2478 (2001). For purposes of federal habeas corpus law regarding second and successive habeas petitions, 28 U.S.C. 2244(b)(2)(A), the Supreme Court itself must hold new rules of constitutional law retroactive, not the lower courts. And it must make the holding directly. Otherwise, second and successive petition relief is not available under federal law. Since the Supreme Court has never held the rule of Cage v. Louisiana, 498 U.S. 39 (1990) is retroactive, it does not permit a second or successive habeas petition under the statute.

Retroactivity of state case law. Fiore v. White, 121 S. Ct. 712 (2001) (per curiam). A state defendant was convicted of operating a hazardous waste facility without a permit, even though he had a permit. His conviction was affirmed in state court, but the conviction of his codefendant was subsequently reversed because the statute does not permit the conviction of one who has a permit. Fiore was denied relief in habeas proceedings. In federal court, he made a Fourteenth Amendment claim that he was entitled to the benefit of the state appellate decision that reversed his codefendant’s conviction. Federal court of appeals held that states are under no constitutional obligation to apply their own decisions retroactively and that new state law decisions are not applicable retroactively on federal habeas corpus. Initially, the U.S. Supreme Court certified a question to the Pennsylvania Supreme Court to determine if the codefendant’s case was new law or an application of existing law. The Pennsylvania Supreme Court, responding to the certified question, made clear that retroactivity is not at issue; that the codefendant’s appellate decision merely clarified the law existing at the time of Fiore’s conviction. The U.S. Supreme Court held, therefore, "that [the Pennsylvania Supreme C]ourt’s interpretation of its statute makes clear that Fiore did not violate the statute. We consequently find that his conviction is not consistent with the demands of the Federal Due Process Clause. See Jackson v. Virginia, 443 U. S. 307, 316 (1979)."


Deportation and review. INS v. St. Cyr, 121 S. Ct. 2271 (2001). Before the effective dates of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), section 212(c) of the Immigration and Nationality Act of 1952 was interpreted to give the attorney general broad discretion to waive deportation of resident aliens. The large class of aliens depending on section 212(c) relief was reduced in 1996 by section 401 of AEDPA, which identified a broad set of offenses for which convictions would preclude such relief; and by IIRIRA, which repealed section 212(c) and replaced it with a new section excluding from the class anyone "convicted of an aggravated felony," (8 U.S.C. § 1229b(a)(3)). St. Cyr, a lawful permanent United States resident, pleaded guilty to a criminal charge that made him deportable. He would have been eligible for a waiver of deportation under the immigration law in effect when he was convicted, but his removal proceedings were commenced after AEDPA’s and IIRIRA’s effective dates. The attorney general claims that those Acts withdrew his authority to grant St. Cyr a waiver. The district court accepted St. Cyr’s habeas corpus application and agreed that the new restrictions do not apply to removal proceedings brought against an alien who pleaded guilty to a deportable crime before their enactment. The Second Circuit affirmed. The Supreme Court held that federal courts have jurisdiction under 28 U.S.C. § 2241 to decide the legal issue raised by St. Cyr’s habeas petition.


Paul M. Rashkind is a supervisory assistant federal public defender and chief of appeals for the Office of the Federal Public Defender, Southern District of Florida. He also serves on the adjunct faculty at the University of Miami School of Law. He was a partner in private practice from 1984–92. He is currently the Section’s vice-chair for publications and a contributing editor of Criminal Justice magazine.

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