Criminal Justice Section  


Criminal Justice Magazine
Winter 2003
Volume 17 Issue 4

Cert Alert

Paul M. Rashkind

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 is current Section vice-chair for publications, chair of the Book Committee, and a contributing editor to Criminal Justice magazine.

Term Begins with Jurisdictional Issues

The beginning of the Supreme Court’s 2002–03 Term has been filled with the classic threshold question—jurisdiction. The issue is central to seven of the Court’s early decisions and it is a prominent issue in three grants of certiorari, one of which has already been dismissed. Four decisions limit federal jurisdiction to entertain habeas corpus proceedings for state prisoners ( Early and Visciotti), limit federal court review of the ATF’s failure to act on applications to restore gun rights to felons ( Bean), and limit federal appellate review of immigration asylum claims ( Ventura). In a fifth case, a pending certiorari was dismissed as improvidently granted, after supplemental briefing on the habeas jurisdiction of the Supreme Court and federal courts of appeals below ( Addur’Rahman). Two other cert grants will consider the jurisdiction of federal magistrates to conduct civil trials ( Roell) and of non-Article III judges to sit on a federal court of appeals panel ( Nguyen).

The Court rejected two opportunities to extend its recent constitutional review of the death penalty to juveniles ( Patterson and Stanford), but will decide what constitutes ineffectiveness during the mitigation phase of a death case ( Wiggins). A recent order hints at the Court’s possible interest in furthering its Apprendi jurisprudence ( Hitt). And the Court has agreed to consider the constitutionality of forcefully administering antipsychotic drugs to persons accused of nonviolent felonies ( Sell).

The High Court will also consider whether an ineffective assistance of counsel claim must, under certain circumstances, be raised on direct appeal ( Massaro), when AEDPA began to apply to habeas cases ( Garceau), and whether a state statute of limitations can be effectively extended by federal legislation ( Jinks). The Court will also interpret the Freedom of Information Act and the extent to which it may permit disclosure of firearms information ( Treasury).


Habeas Corpus Jurisdiction Under AEDPA. Early v. Packer, 123 S. Ct. 362 (Nov. 4, 2002) (per curiam). A habeas corpus petitioner claimed that a holdout juror had been coerced by the state trial court’s instructions in a criminal case. Although California law prohibits an Allen-type charge (instructing minority jurors to give weight to the majority’s views), federal law permits such a jury charge. California upheld the conviction. The Ninth Circuit Court of Appeals found that the federal courts had habeas jurisdiction under AEDPA because California’s courts violated clearly established U.S. Supreme Court precedent on the jury coercion issue. The U.S. Supreme Court disagreed, holding that AEDPA, 28 U.S.C. § 2254(d), foreclosed federal habeas jurisdiction because the state court decision was not "contrary to" established Supreme Court law.

Habeas Corpus Jurisdiction Under AEDPA . Woodford v. Visciotti, 123 S. Ct. 357 (Nov. 4, 2002) (per curiam). The Ninth Circuit Court of Appeals held that the California Supreme Court had mischaracterized the U.S. Supreme Court’s prejudice standard under Strickland v. Washington, 466 U.S. 668 (1984), involving an ineffective assistance of counsel claim. This mischaracterization, it held, permitted federal habeas jurisdiction under AEDPA, 28 U.S.C. § 2254(d). The U.S. Supreme Court reversed, holding that the state courts did not mischaracterize Strickland, that states have the primary responsibility for determining the objective reasonableness of counsel’s performance, and that California’s assessment in this case was not unreasonable. Therefore, the Ninth Circuit’s decision exceeds the limits imposed by AEDPA on federal habeas jurisdiction.

Appellate Review of INS Asylum Determination. I.N.S. v. Ventura, 123 S. Ct. 353 (Nov. 4, 2002) (per curiam). Federal law authorizes the attorney general, at his or her discretion, to grant asylum claims based upon a well-founded fear of political persecution in the home country. The INS Board of Immigration Appeals determined that Ventura faced no such threat in Guatemala. The BIA did not consider the alternative claim that, even if he had faced persecution before, conditions had improved and he would not face political persecution now. On appeal to the Ninth Circuit, both sides asked the court to remand the case to the BIA to decide the changed-conditions issue. Despite the joint request, the Ninth Circuit addressed the changed-conditions issue, deciding in favor of Ventura. The Supreme Court reversed, holding that "well-established principles of administrative law require the Court of Appeals to remand the ‘changed-circumstances’ question to the BIA."

ÿ Jurisdiction of Magistrate Judge to Conduct Civil Trial. Roell v. Withrow, 123 S. Ct. 512 ( cert. granted Nov. 4, 2002); decision below at 288 F.3d 199 (5th Cir. 2002). A prisoner-plaintiff in a civil rights action consented to referral of the case for trial by a magistrate judge, as permitted by 28 U.S.C. § 636(c), but the consent was not reduced to writing and filed prior to trial, as required by the law. The verdict was rendered against the prisoner-plaintiff. The court of appeals held that the verdict must be vacated, despite the prisoner’s postjudgment consent, because all but one defendant failed to consent in writing prior to trial. The Supreme Court granted certiorari. The question presented: "When district court, upon plaintiff’s written consent, refers case to magistrate judge for trial under 28 U.S.C. 636(c), and all parties, magistrate judge, and jury proceed in manner consistent with that referral, must court of appeals sua sponte vacate judgment for lack of jurisdiction because defendants did not expressly consent, or can defendants cure that alleged defect by confirming, in post-judgment filing in the district court, their consent to trial before the magistrate judge?"

ÿ Composition of Appellate Court Panel. Nguyen v. United States and Phan v. United States, 123 S. Ct. 512, 513 (cert. granted Nov. 4, 2002); decisions below at 284 F.2d 1086 (9th Cir. 2002). The defendants were arrested when they came to retrieve a postal delivery that had been confiscated by officers at a Guam postal facility. The package contained 443.8 grams of crystal methamphetamine and listed a return address of a man named Thanh Nguyen in California. At trial, the government adduced evidence that the person who allegedly mailed the package was related to the defendants to establish the conspiracy connection. The trial court allowed the testimony into evidence and the defendants were convicted of conspiracy to import methamphetamine. On appeal, the issue presented was whether evidence about familial relationships can support a conviction for conspiracy to commit drug crimes. The Ninth Circuit affirmed the convictions, determining that evidence of consanguinity was not irrelevant or unfairly prejudicial. The Ninth Circuit Court of Appeals panel hearing the appeal included the chief district judge for the Northern District of Mariana Islands. Question presented: Was the Ninth Circuit’s judgment vitiated by participation of non-Article III judge?

ÿ Jurisdiction to Hear Habeas Corpus Appeal. Abdur’Rahman v. Bell, 122 S. Ct. 1605 ( cert. granted) and 123 S. Ct. 465 (order requesting briefing on jurisdiction entered Oct. 24, 2002), 123 S. Ct. ___ (dismissed as improvidently granted Dec. 10, 2002). During the petitioner’s federal habeas proceedings, the state supreme court changed its rules on exhaustion to eliminate an arguable procedural default and permit federal review of the habeas petitioner’s claims. Federal courts refused to acknowledge the intervening change in law. Initially, the U.S. Supreme Court granted cert on two questions: (1) whether the Sixth Circuit erred in holding, in square conflict with decisions of the Supreme Court and of other circuits, that every Rule 60(b) motion constitutes a prohibited "second or successive" habeas petition as a matter of law; and (2) whether a court of appeals abuses its discretion in refusing to permit consideration of a vital intervening legal development when the failure to do so precludes a habeas petitioner from ever receiving any adjudication of his or her claims on the merits. In October 2002, the Supreme Court requested supplemental briefs on two new jurisdictional issues: "Did the Sixth Circuit have jurisdiction to review the district court’s order, dated November 27, 2001, transferring Petitioner’s Rule 60(b) Motion to the Sixth Circuit pursuant to 28 U.S.C. § 1631? Does this Court have jurisdiction to review the Sixth Circuit’s order, dated February 11, 2002, denying leave to file a second habeas corpus petition?" On December 10, 2002, the Court dismissed the certiorari proceeding as improvidently granted, apparently due to unsatisfactory answers to one or both of the jurisdictional questions.

Federal Court Jurisdiction over Felon Gun Rights. United States v. Bean, 123 S. Ct. ___ (Dec. 10, 2002). The secretary of the treasury has statutory power to restore gun rights to convicted felons, 18 U.S.C.
§ 925(c), a power he has delegated to the Department of Alcohol, Tobacco, and Firearms. Congress has deleted ATF funding to process the restoration applications and forbids ATF to expend any funds to investigate or act on such applications. Bean filed a restoration application with ATF, which returned it unprocessed, explaining it was forbidden by its annual appropriation to do so. Bean then filed suit under section 925(c), contending that ATF’s inaction was a denial, permitting a federal judge to review ATF’s determination and ultimately restore his right to possess a firearm. The district court granted relief, which was affirmed on appeal. The Supreme Court reversed, however, holding that ATF’s inaction did not amount to a "denial." Denial comes only after dispositive action by the secretary of the treasury or his or her designee, the ATF.


Apprendi’s Application to Prior Convictions. Hitt v. Kansas , 123 S. Ct. 465 (order requesting solicitor general’s position entered Oct. 21, 2002); decision below at 42 P.3d 732 (Kan. 2002). Hitt was convicted in state court for state offenses. His sentence was aggravated by six juvenile offenses, including one for burglary, which counted as a felony. His sentence was doubled to 38 months. Hitt argues, under Apprendi v. New Jersey, that juvenile adjudications arising without a jury trial cannot be used to enhance his sentence. Prior to a grant of certiorari, the Supreme Court has taken the unusual step of requesting the views of the U.S. solicitor general on this state case, leading many to conclude that the Court is looking for an appropriate case to address the impact of Apprendi on prior convictions that enhance basic sentences.

Death Penalty

Juveniles. Patterson v. Texas, 123 S. Ct. 24 ( cert. denied Aug. 28, 2002). Justices Stevens, Ginsburg, and Breyer dissented from the denial of a stay in a case involving the application of the death penalty to a defendant who was 17 at the time of the offense. All three Justices would have granted the stay until the Court’s next scheduled conference to decide whether Stanford v. Kentucky, 492 U.S. 361 (1989) (permitting death penalty for juveniles) should be reconsidered, especially in light of last Term’s decision in Atkins v. Virginia (prohibiting execution of mentally retarded persons.)

Juveniles. In re Stanford, 123 S. Ct. 472 ( cert. denied Oct 21, 2002). Justice Breyer joined the dissenters in Patterson—Justices Stevens, Souter, and Ginsburg—dissenting from the denial of a habeas corpus petition challenging the execution of a person for a crime committed while a juvenile.

Competency of Counsel

ÿ Reasonableness of Tactical Decisions. Wiggins v. Corcoran, 123 S. Ct. ___ ( cert. granted Nov. 18, 2002); decision below at 288 F.3d 629 (4th Cir. 2002). The defendant in this state death penalty case was accused of drowning an elderly woman in her bathtub. The case was proved by circumstantial evidence. Rather than present mitigating evidence during the penalty phase, defense counsel attempted to retry the defendant’s guilt. Counsel failed to develop or present to the jury the defendant’s social history, harsh childhood, and sub-average intelligence. Defendant’s conviction was sustained by state courts, which concluded that counsel’s penalty phase representation was adequate, based on tactical choices. The federal district court granted habeas relief due to ineffective counsel during the penalty phase, but the court of appeals reversed, holding that the state court’s appraisal of the effectiveness of counsel was not unreasonable. The Supreme Court granted certiorari to decide if counsel can reasonably be said to have made a tactical decision to not present defenses, when counsel never investigated the defenses he failed to present.

ÿ Exhausting Ineffective Assistance of Counsel Claim on Direct Appeal. Massaro v. United States, 123 S. Ct. 31 ( cert. granted Oct. 1, 2002); decision below at 27 Fed. App. 26 (2d Cir. 2001). The Second Circuit requires ineffective assistance of trial counsel claims to be exhausted on direct appeal, if the appeal is handled by new counsel, not trial counsel. The question presented: whether ineffective assistance of counsel claims must be pursued on direct appeal, if appellate counsel was not trial counsel, in order to exhaust claim for section 2255 review?

Competency of Client

ÿ Forced Use of Antipsychotic Drugs. Sell v. United States, 123 S. Ct. 512 ( cert. granted Nov. 4, 2002); decision below at 282 F.3d 560 (8th Cir. 2002). The government forcibly administered to the defendant antipsychotic drugs for purpose of rendering him competent to stand trial for federal charges of mail fraud, money laundering, and false statements. The court of appeals upheld the procedure. The question presented: Does forcible administration of antipsychotic drugs solely to render a criminal defendant competent to face nonviolent criminal charges violate the First, Fifth, and Sixth Amendments?

Statutes & Limitations

ÿ Applicability of AEDPA. Woodford v. Garceau, 123 S. Ct. 32 ( cert. granted Oct. 1, 2002); decision below at 275 F.3d 769 (9th Cir. 2001). Garceau was convicted of capital murder in California. After his conviction was affirmed by the state courts, Garceau filed for habeas relief in federal court. The district court denied his request for an evidentiary hearing and denied his motion for relief. Garceau appealed and the Ninth Circuit decided that because Garceau requested habeas counsel in May of 1995, his petition was pending on the effective date of the AEDPA. Ultimately, the Ninth Circuit reversed, directing the district court to evaluate the petition under pre-AEDPA standards. The state argued that the AEDPA became effective prior to the date Garceau actually filed his petition, and therefore, AEDPA applied. The Supreme Court will decide whether the provisions of AEDPA can be applied to all habeas petitions filed after the effective date of the Act.

ÿ Limitations of Actions. Jinks v. Richland County, S.C. 123 S. Ct. 435 ( cert. granted Oct. 21, 2002); decision below at 563 S.E.2d 104 (S.C. 2002). Jinks was arrested for failing to pay child support and died in the detention center four days later. His wife sued Richland County, the detention center director, and the detention center physician in federal court. When the federal court claims were adjudicated in favor of the state, she filed negligence claims in state court 16 days later, taking advantage of federal legislation that tolled her state statute of limitations while the federal claim was pending. The state jury entered an award for damages to the wife. The South Carolina Supreme Court reversed, holding that the federal statute allowing for tolling of claims against states exceeds Congress’s power under the Necessary and Proper Clause and violates the Tenth Amendment. The Supreme Court will decide whether a federal law extending a state statute of limitations for claims against the state violates the states’ rights.

ÿ FOIA v. ATF. Department of Treasury v. City of Chicago, 123 S. Ct. 536 ( cert. granted Nov. 12, 2002); decision below at 297 F.3d 672 (7th Cir. 2002). Furthering its civil action against gun manufacturers, the City of Chicago invoked the Freedom of Information Act to obtain information from two computer databases maintained by the Bureau of Alcohol Tobacco and Firearms. The requested information included the trace and multiple sales databases. The government opposed disclosure, claiming the exemption for records collected for law enforcement purposes. The court of appeals rejected the claimed exemption and found that disclosure would not endanger law enforcement proceedings or officers. The government sought certiorari, claiming that release of the information would interfere with investigations, endanger law enforcement agents, and intrude upon firearms purchasers’ privacy right. The Supreme Court granted certiorari to review the decision of the court of appeals. n

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