Criminal Justice Section
Criminal Justice Magazine
Volume 17 Issue 1
Paul M. Rashkind
Mid-Term Supreme Court Report
After a slow start, the 2001–02 Term of the Supreme Court is beginning to take shape. Six criminal cases have been decided involving Fourth Amendment rights (Knights and Arvizu) , procedural ( Dusenbery) and substantive due process ( Crane) , and the proper instruction of a capital jury ( Kelly) . The Court also recognized an exception to procedural default in extraordinary habeas corpus proceedings ( Lee).
Eleven new cert petitions have been granted. In three of those cases the Court promises to review how its Apprendi decision impacts death penalty sentencing ( Ring), sufficiency of federal indictments charging crimes with mandatory minimum sentences ( Harris), and the appellate standard of review for Apprendi-related errors ( Cotton). The new certiorari grants also add to the docket bus passenger searches ( Drayton), the validity of plea agreements that waive the right to Brady disclosures ( Ruiz), the constitutionality of executing mentally retarded persons ( Atkins), and a trio of habeas corpus issues ( Bell, Newland, Stewart).
Apparently concerned that the right to counsel in misdemeanor cases was not fully briefed in Shelton, the court appointed an amicus curiae to brief a pro prosecution issue not raised by the parties. And in its most recent cert grant, the Court will address the authority of a federal court to restore gun rights to a convicted felon ( Bean).
Probationer’s rights. United States v. Knights, 122 S. Ct. 587 (2001). The defendant agreed as a term of probation to searches of himself, his property, and his residence. Police searched his apartment, without individualized suspicion, based solely on his probation-related agreement to searches. Knights sought to suppress the fruits of the search, arguing that his agreement did not constitute a valid consent to search by police investigating a crime. He argued that a warrantless search of a probationer satisfies the Fourth Amendment only if it is just like the search at issue in Griffin v. Wisconsin—a "special needs" search conducted by a probation officer monitoring whether the probationer is complying with probation restrictions. The Court called it dubious logic to contend that an opinion upholding the constitutionality of a particular search implicitly holds unconstitutional any search that is not like it. It found that the argument actually runs contrary to Griffin’s express statement that its "special needs" holding made it "unnecessary to consider whether" warrantless searches of probationers were otherwise reasonable under the Fourth Amendment. Since nothing in Knights’s probation condition limits searches to those with a "probationary" purpose, the question is whether the Fourth Amendment imposes such a limitation. The Supreme Court held that the warrantless search was supported by reasonable suspicion and was authorized by the probation condition, thereby satisfying the Fourth Amendment. The Court did not decide whether Knights’s acceptance of the search condition constituted consent to a complete waiver of his Fourth Amendment rights, a la Schneckloth v. Bustamonte, because the search was reasonable under the totality of circumstances test of Ohio v. Robinette, with the search agreement being a salient circumstance. The Court did find that probationers are more likely to violate the law than others, and that government searches of them further interests in rehabilitation, protection of society from further crimes, and apprehension of criminals. The Court noted that probable cause is ordinarily required by the Fourth Amendment, but, relying on Terry v. Ohio, held that a lesser standard—reasonable suspicion—is sufficient when the balance of government and private interests make such a lesser standard reasonable. Since the Court’s holding relied on ordinary Fourth Amendment reasonableness analysis, the Court did not address the official purpose behind the search agreement condition.
Innocent conduct as reasonable suspicion for vehicle stop. United States v. Arvizu, 122 S. Ct. 744 (2002). After denial of a motion to suppress marijuana found in the defendant’s van, Arvizu entered a conditional guilty plea to possession with intent to distribute marijuana, and appealed. The Ninth Circuit reversed, holding that: (1) facts that the van slowed down after the driver spotted a law enforcement vehicle, that the driver failed to acknowledge the law enforcement officer, and that children in the back seat of the 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 the officer did not recognize the minivan as belonging to a local resident, that the van was registered to an address in a block allegedly notorious for smuggling, and that the children sitting in the back seat of the 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 the road on which the minivan was traveling was sometimes used by smugglers, that the minivan was on the road near the time that the Border Patrol shift changed, and that the minivan was the 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 the vehicle, which was made without reasonable suspicion, was not purged by any intervening events. The Supreme Court granted certiorari to consider the standard for determining reasonable suspicion. It rejected the Ninth Circuit’s refusal to consider innocent conduct as part of the totality of circumstances from which reasonable suspicion may be ascertained. The Supreme Court held that under the totality of circumstances test for investigatory stops, an officer may rely on a combination of otherwise innocent observations to stop and briefly investigate further a suspect vehicle.
• Bus passenger search . United States v. Drayton, 122 S. Ct. 803, cert. granted Jan. 4, 2002; decision below at 231 F.3d 787 (11th Cir. 2000). Defendants consented to a pat-down search while on a cross-country bus stopped at a bus depot. To obtain consent, the officers did a passenger-by-passenger encounter, making an individual show of authority to each seated passenger. The officer held up his badge, leaned over, and got face to face, 12 to 18 inches away from passenger, and said he was conducting a drug interdiction, looking for drugs and illegal weapons. Cocaine was discovered, for which Drayton was prosecuted, convicted, and imprisoned. Although the district court refused to suppress the seized evidence, the Eleventh Circuit reversed, following its consistent circuit precedent that consent obtained by such a show of authority is coerced, since a reasonable person would not feel free to refuse. The Supreme Court has granted the government’s petition to review the Eleventh Circuit’s holding and precedent.
• Right to counsel for misdemeanor with suspended sentence. Alabama v. Shelton, 121 S. Ct. 1955, cert. granted May 14, 2001; decision below: 2000 WL 1872080 (Ala. Ct. Crim. App. 2000). In light of Argersinger v. Hamlin and Scott v. Illinois, does the imposition of a suspended or conditional sentence in misdemeanor case invoke the Sixth Amendment right to counsel? Note: The case was due to be argued in November 2001, but the Supreme Court removed it from the oral argument calendar and appointed former Solicitor General Charles Fried to argue as amicus the following position: "Where counsel is not afforded to an indigent defendant, the Constitution of the United States does not bar the imposition of a suspended or probationary sentence upon conviction of a misdemeanor, even though the defendant might be incarcerated in the event probation is revoked." The case was reset for argument February 19, 2002.
• Federal indictment permitting mandatory minimum sentence. Harris v. United States, 122 S. Ct. 663, cert. granted Dec. 10, 2001; decision below at 243 F.3d 806 (4th Cir. 2001). Given that a finding of "brandishing," as used in 18 U.S.C. § 924(c)(1)(A), results in an increased mandatory minimum sentence, must the fact of "brandishing" be alleged in the indictment and proved beyond a reasonable doubt?
• Standard of appellate review. United States v. Cotton, 122 S. Ct. 803, cert. granted Jan. 4, 2002; decision below at 261 F.3d 397 (4th Cir. 2001). "Whether the omission from a federal indictment of a fact that enhances the statutory maximum sentence requires a court of appeals automatically to vacate the enhanced sentence, notwithstanding that the defendant did not object to the sentence in the district court, the government introduced overwhelming proof of the fact that supports the enhanced sentence, and the defendant had notice that the fact could be used to seek an enhanced sentence."
• Capital sentencing under Apprendi. Ring v. Arizona, 122 S. Ct. 865, cert. granted Jan. 11, 2002; decision below at 25 P.3d 1139 (Ariz. 2001). Should Walton v. Arizona be overruled in light of the holding in Apprendi v. New Jersey that for the legislature to remove from the jury assessment of facts that increase prescribed range of penalties to which a criminal defendant is exposed violates the defendant’s Sixth Amendment right to jury trial? Arizona Supreme Court held that despite the United States Supreme Court’s decisions in Jones and Apprendi, Arizona’s capital sentencing scheme does not violate the Sixth and Fourteenth Amendments and that Walton v. Arizona (approving Arizona’s present judge-sentencing procedure for capital cases) is still controlling. The Arizona court held that it was bound by Walton and therefore affirmed a death sentence founded on a judge’s "special verdict" of aggravating factors.
Simmons instructions. Kelly v. South Carolina, 122 S. Ct. 726 (2002). South Carolina violated the Supreme Court’s decision in Simmons v. South Carolina by refusing to inform a capital defendant’s sentencing jurythat he would never be eligible for parole if the jury sentenced him to life in prison rather than death. The Court reiterated Simmons: When a capital defendant’s future dangerousness is at issue, and the only alternative to death available to the jury is life without parole, due process entitles the defendant to inform the jury of that fact, either by jury instruction or argument. Kelly was, therefore, entitled to a jury instruction that he would be ineligible for parole under a life sentence.
• Execution of mentally retarded persons. Atkins v. Virginia, 122 S. Ct. 24, 29, cert. granted Sept. 25, 2001, as amended Oct. 1, 2001; decision below at 534 S.E.2d 312 (Va. 2000). Question presented: "Whether the execution of mentally retarded individuals convicted of capital crimes violates the Eighth Amendment?" The Supreme Court has agreed to rehear the issue, which 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 18 states and the federal government prohibit such executions, and 12 states have no death penalty at all. This case replaces on the docket McCarver v. North Carolina, 121 S. Ct. 1221, cert. granted Mar. 26, 2001; cert. dismissed Sept. 25, 2001, because North Carolina recently passed a law prohibiting execution of the mentally retarded.
• Ineffective death penalty phase defense. Bell v. Cone, 122 S. Ct. 663, cert. granted Dec. 10, 2001; decision below at 243 F.3d 961 (6th Cir. 2001). Cone was convicted in the state court of first degree murder, murder in the perpetration of a burglary, assault with intent to commit murder, and robbery by use of deadly force, then sentenced to death. During the sentencing phase, his lawyer failed to present evidence and a closing argument. The lawyer later explained that this was done out of fear that the prosecutor might make a devastating closing argument. Cone’s convictions and death sentence were affirmed by the Tennessee state courts, which concluded that his counsel’s omissions did not fall below the Strickland standard for ineffective assistance of counsel. Cone then petitioned for federal habeas corpus relief, which was denied. He appealed and the Sixth Circuit affirmed most issues, but reversed as to the death sentence, holding that trial counsel’s failure to present mitigating evidence and a closing argument during the penalty phase of trial amounted to ineffective assistance of counsel. The court of appeals presumed prejudice and did not require Cone to demonstrate prejudice. Moreover, it maneuvered around the state court’s findings, by holding that they constitute a "decision that is contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." (28 U.S.C. § 2254(d)(1).) The court of appeals concluded that the refusal by Cone’s counsel to offer any evidence in mitigation and refusal even to address the jurors to ask them to spare Cone’s life because counsel feared the prosecutor might make a devastating argument denied Cone his Sixth Amendment right to counsel at sentencing and that the Tennessee court’s conclusion to the contrary is an unreasonable application of the clearly established law announced by the Supreme Court in Strickland. The Supreme Court granted certiorari to review the decision.
Due Process of Law
Forfeiture; adequacy of notice. Dusenbery v. United States, 122 S. Ct. 694 (2002). The FBI administratively forfeited cash it seized from Dusenbery during the execution of a search warrant at his home. In accordance with the statute then in effect, the FBI provided notice of the forfeiture proceedings by certified mail to Dusenbery at his federal prison, the residence from which the cash was seized, and his mother’s home. When he did not respond, the cash was turned over to the U.S. Marshal’s Service. Five years later, Dusenbery sought return of the cash in a Rule 41(e) proceeding. He claimed the forfeiture was improper because anything less than actual notice failed to meet due process. His contention was rejected by the district court, but reversed by the Sixth Circuit, which found that the Rule 41(e) proceeding should have been treated as a civil complaint for equitable relief, alleging a due process violation based on inadequate notice. On certiorari, the Supreme Court reversed, holding that the former statute and notice procedures met the reasonableness test, and therefore did not deprive Dusenbery of due process of law.
• Waiving right to Brady disclosures. United States v. Ruiz, 122 S. Ct. 803, cert. granted Jan. 4, 2002; decision below at 241 F.3d 1157 (9th Cir. 2001). Supreme Court has granted the government’s petition to review the Ninth Circuit’s holding that the right to disclosure of Brady information cannot be waived by plea agreement and that any such waiver in a plea agreement is invalid.
Involuntary commitment. Kansas v. Crane, 122 S. Ct. 867 (Jan. 22, 2002). The Supreme Court superimposed a substantive due process requirement on its previous decision, Kansas v. Hendricks, which determined that the Kansas Sexually Violent Predator Act is facially constitutional. The law permits involuntary commitment if a jury determines, beyond a reasonable doubt, that the person has been previously convicted of an enumerated sex crime, suffers from a mental abnormality or personality disorder, and that the condition renders him or her likely to commit future acts of sexual violence. The present decision holds that for the law to be upheld, due process requires the jury to also find that the defendant suffers from an inability to control his or her behavior—there must be a lack-of-control determination. The dissent of Justice Scalia claims that the present decision "snatch[es] back from the State of Kansas a victory so recently rewarded" and points out the difficulty inherent in trying to apply the new requirement.
Exception to procedural default. Lee v. Kemna, 122 S. Ct. 877 (Jan. 22, 2002). Lee intended to present an alibi defense to his state prosecution for murder. He raised the issue throughout the proceedings and subpoenaed his alibi witnesses to court. Although his alibi witnesses were present in court on the first two days of trial, they were inexplicably absent on the third day of trial when defense evidence was due to be presented. Lee moved, orally, for a continuance, which was denied due to the trial judge’s personal and professional schedule. No issue was made about the form of the motion to continue. His appeal and collateral relief proceedings were heard jointly, under state rules. The state appellate court affirmed, identifying a procedural default—violation of state rules that require motions for continuance to be in writing and to be accompanied by an affidavit—raising for the first time the fact that Lee’s oral motion for continuance should have been in writing. On that basis, his conviction was affirmed and collateral relief was denied. During federal habeas corpus proceedings, Lee produced affidavits from the alibi witnesses that they were told by a court officer to leave the courthouse because their testimony was not needed that day, and claimed prosecutorial misconduct created the need for his continuance. The district court held that the affidavits could not be considered because Lee had not presented them first to the state court. The district court found that the state court’s invocation of state procedural rules was an adequate and independent state-law ground barring federal habeas review. The court of appeals affirmed. The Supreme Court granted certiorari to determine if violation of the state rules was adequate basis, "under the extraordinary circumstances of this case," to close out Lee’s "federal, fair-opportunity-to-defend" claim. Finding that this case falls within a small category of cases in which the asserted state grounds are inadequate to bar federal habeas review, the Supreme Court reversed, identifying three reasons, which, in combination support its finding: (1) the reason for denial of a continuance (trial judge’s personal and professional scheduling) would not have been countered by a perfect motion for continuance; (2) no published state case directs flawless compliance with the rules under the circumstances present here; (3) "given the ‘realities of trial’ Lee substantially complied" with the state rule.
• Tolling time when it is not clear state claim was timely filed; mailbox rule. Newland v. Saffold, 122 S. Ct. 393, cert. granted Oct. 15, 2001; decision below at 250 F.3d 1262 (9th Cir. 2001). The defendant filed state habeas claims with his warden with only six days remaining on AEDPA’s one-year statute of limitations. These claims were denied on the merits by the trial court. Five days later, he filed with his warden an appeal to the state appellate court, which the appeals court denied 12 days later. Saffold then waited four-and-a-half months before filing an original habeas corpus proceeding in the state supreme court, which was denied "on the merits and for lack of diligence." Upon federal habeas review, the district court dismissed, holding that the AEDPA time limit was tolled only while each state court had the petition under consideration, so the state supreme court petition did not toll the one-year limitation period. The Ninth Circuit reversed, holding that the tolling occurred from the first habeas filing through the final determination by the last state court to hear the claim. The Ninth Circuit also applied the mailbox rule to habeas petitions under AEDPA. The Supreme Court granted the state’s petition for writ of certiorari to review the Ninth Circuit’s tolling determination.
• Procedural default—state rules requiring partial merits consideration. Stewart v. Smith, 122 S. Ct. ___, cert. granted and question certified to Arizona Supreme Court Dec. 12, 2001; decision below at 241 F.3d 1191 (9th Cir. 2001). In a case involving application of the procedural default doctrine to a habeas corpus petition under 28 U.S.C. § 2254, the U.S. Supreme Court certified to the Arizona Supreme Court the question whether Arizona’s rules of procedure required at least partial merits consideration by a state habeas court of a successive ineffective assistance of counsel claim, such that an Arizona court’s purported denial of review of a habeas claim, nominally based on a procedural bar, would not necessarily be treated as a true procedural bar. The Court concluded that resolution of the state law issue was necessary in order to evaluate the correctness of the Ninth Circuit’s reasoning that "[g]iven Arizona’s exception for errors of ‘constitutional magnitude,’ the state court’s finding of procedural default in Smith’s case necessarily included an evaluation of the strength of his federal claim" and that where "the state court’s procedural ruling in this case was necessarily intertwined with its implicit determination that the merits of his claim were of insufficient constitutional magnitude . . . federal review is not barred."
Restoration of Felon’s Rights
• Felon gun rights. United States v. Bean, 122 S. Ct. 917, cert. granted Jan. 22, 2002; decision below at 253 F.3d 234 (5th Cir. 2001). Are federal judges empowered to restore gun rights to convicted felons, when Congress has ordered the Bureau of Alcohol, Tobacco, and Firearms not to expend funds to process such applications administratively, in accordance with a federal law setting forth administrative procedures for relief from disabilities under the Federal Firearms Act?
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, in Miami. He also serves on the adjunct faculty of the University of Miami School of Law. He was in private practice from 1984–92. He is currently the Section’s vice-chair for publications and a contributing editor to Criminal Justice magazine.