Criminal Justice Section  


Criminal Justice Magazine
Fall 2004
Volume 19 Number 3

Cert Alert

Term Ends with Surprise and Conflicts

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

The Supreme Court ended its 2003-04 Term with a flurry of split decisions, including surprising and conflicting developments in a broad range of criminal justice issues. The most intriguing decision awoke debate about the constitutional requisites of sentencing, expanding Apprendi-Ring jurisprudence to sentencing guidelines schemes (Blakely) and begging the question whether this body of law will invalidate the current U.S. Sentencing Guidelines, a question that the Court addressed in oral arguments in October on the first day of its new Term (Booker, Fanfan). Blakely was issued together with two other decisions that may affect its impact on previously sentenced prisoners, one that restricts the retroactivity of Ring (Schriro)—but not necessarily of Blakely —and another that limits circumstances under which federal guilty pleas may be overturned on appeal for plain nonconstitutional errors in the plea colloquy, limitations not applicable in a case of constitutional errors (Dominguez Benitez).
In search and seizure cases, a plurality of the Court permitted police to search the passenger compartment of a vehicle from which its occupant had alighted, but a majority of the Justices would have reconsidered New York v. Belton if such a challenge had been made (Thornton). Certiorari was granted to decide if an occupant may be detained and questioned while police execute a search warrant (Muehler). A state law implicating both Fourth and Fifth Amendment concerns—requiring a person to reveal his or her name to police during a police inquiry based on reasonable suspicion—was upheld (Hiibel).
Although a number of Miranda issues were set for review, the Term ended with no clear developments. Its protection was not available to a juvenile whose custodial status was questionable (Yarborough) nor to an arrestee who interrupted the giving of Miranda rights, then gave an otherwise voluntary statement (Patane). But the Court overruled use of the Miranda two-step, where police deliberately withhold giving a rights warning until after the suspect has begun answering questions (Seibert).
The validity of federal laws and procedures implicated various constitutional provisions. Commerce Clause federalism concerns about a federal bribery statute were salvaged by Article I’s Spending Clause (Sabri), but the Court agreed to decide if the Controlled Substances Act’s prohibition of free medicinal marijuana is unconstitutional under the Commerce Clause (Raich). A temporary injunction against the Child Protection Online Act was upheld due to likely First Amendment deficiencies (ACLU) and the Court agreed to decide if the Double Jeopardy Clause prohibits a retrial after a trial judge rules that the evidence is insufficient but later reverses the not guilty ruling (Smith).
Other federal criminal laws were added to the Court’s docket to decide if a money laundering conspiracy requires an overt act (Whitfield) and the proper method for determining predicate state prior burglaries under the federal Armed Career Criminal Act
In the contradiction that is habeas law, the Court approved federal court habeas jurisdiction over terrorism-related detentions for foreign nationals held abroad (Rasul) and for U.S. citizens detained here (Hamdi), although jurisdiction generally lies only in the venue where the citizen is detained (Padilla). At the same time, the Court overturned two lower federal court decisions granting habeas relief based upon unreasonable application of federal law by states (Middleton, Holland) and granted review of a third for next Term (Goughnour). Justices agreed to decide whether mixed-claim habeas petitions may be stayed or must be dismissed (Rhines), and forced one court of appeals to do more than pay lip service to the Court’s prescription for granting a certificate of appealability (Tennard).
The Court held that its prior decision prohibiting unanimous jury findings on death penalty mitigators is not retroactive (Beard), but it will decide whether at least one lesser included offense of capital murder must be offered to the jury (Howell).
Lower courts were prohibited from unilaterally re-characterizing civil rights petitions as barred habeas corpus applications (Nelson), but the Court will not require lower courts to caution habeas petitioners about the adverse consequences of voluntarily dismissing their own petitions (Pliler).
And in a reprise of its Batson-related habeas case from 2003 (Miller-El), the Court again granted certiorari to decide if the court of appeals’s remand decision continues to ignore evidence of prosecutorial racial discrimination in jury selection.

Apprendi, Continued
Application to sentencing guidelines. Blakely v. Washington, 124 S. Ct. 2531 (2004). The defendant pleaded guilty to kidnaping his wife and son. Based on facts admitted in his guilty plea, the crime was punishable by up to 10 years’ imprisonment, but under the Washington State sentencing guidelines, the maximum sentence was 53 months. At sentencing, he received an “exceptional sentence” based on aggravating facts of deliberate cruelty and commission of a domestic violence offense before a child, which increased his sentence from a state sentencing guideline maximum of 53 months to 90 months. A 5–4 Supreme Court held that Apprendi v. New Jersey, 530 U.S. 466 (2000) applies to Washington State sentencing guidelines and, for purposes of Apprendi, the statutory maximum is the guidelines maximum sentence, not the general statutory maximum. Thus, the unenhanced maximum statutory sentence was exceeded by 37 months, in violation of Apprendi, which held “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Because the facts supporting Blakely’s exceptional sentence were neither admitted by him nor found by a jury, the sentence violated his Sixth Amendment right to trial by jury. Although the majority decision notes that the decision does not rule on the application of Apprendi to the federal sentencing guidelines, efforts to distinguish the Washington State guidelines from the federal sentencing guidelines are unconvincing to many of the dissenting Justices, who predict the majority’s ruling will undo the federal sentencing scheme now in place. Not discussed in Blakely is the Fifth Amendment indictment clause, since Blakely is a state case, and the constitutional entitlement to indictment does not apply to the states. Yet, it appears that in the federal context, Apprendi requires an indictment including the aggravating facts, not simply proof of the facts. A cautionary note for practitioners: The Court made clear that Apprendi/Blakely rights can be waived.

Application to federal sentencing. United States v. Booker and United States v. Fanfan, 124 S. Ct. ___, cert. granted, Aug. 2, 2004; decisions below at 375 F.3d 508 (7th Cir. 2004), 2004 WL 1723114 (D. Me. June 28, 2004). Is the Sixth Amendment violated by the imposition of an enhanced sentence under the federal sentencing guidelines based on the sentencing judge’s determination of a fact (other than a prior conviction) that was not found by the jury or admitted by the defendant? If so, is the federal law severable, or does the entire guidelines scheme become inapplicable, requiring the judge to sentence the defendant within the statutory limits set by Congress?

Retroactivity. Schriro v. Summerlin, 124 S. Ct. 2519 (2004). Ring v. Arizona, 536 U.S. 584 (2002) (applying Apprendi to capital sentencing proceedings; the existence of an aggravating factor must be proved to a jury rather than simply a judge) does not apply retroactively. Retroactive application is necessary only for new “watershed rules of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding.” A five-Justice majority found that Ring did not involve such a rule. It did not alter the range of conduct or the class of persons subject to the death penalty, but only the method of determining whether the defendant engaged in that conduct. Judicial fact-finding, moreover, while now unconstitutional under Ring, did not seriously diminish the accuracy of the death sentence determinations since the judge and jury used the same standard of proof for applying the enhanced sentence (beyond a reasonable doubt). This does not necessarily answer the retroactivity question as it relates to Blakely or to federal sentencing—Justice O’Connor’s dissent in Blakely contends that despite Schriro collateral relief may be available under Blakely for all guideline-sentenced defendants who were sentenced after the June 2000 Apprendi decision. In addition, Schriro might not apply to Blakely claims because in Schriro, the judge and jury used the same “beyond a reasonable doubt” standard of proof for applying the enhanced sentence, but under the federal sentencing guidelines, the judge enhances a sentence based on the less demanding preponderance of evidence standard. This lower standard does diminish the accuracy of the sentence, distinguishing Schriro as precedent as applied to Blakely.

Search, Seizure & Confessions
Vehicle search incident to arrest. Thornton v.
United States, 124 S. Ct. 2127 (2004). In an opinion that only four Justices joined in its entirety (and to which five Justices suggested that a different rule of decision might obtain if additional arguments had been briefed and preserved below), the Court held that the Fourth Amendment allows a police officer to search the passenger compartment of a vehicle when a recent occupant is approached after he or she has left the vehicle and arrested in proximity to the vehicle. Five
justices, including those concurring and dissenting, would likely have supported reconsidering New York v. Belton, 453 U.S. 454 (1981), had the issue been more fully briefed and argued, due to the regular fishing expedition use of the Belton exception by police officers. The majority of justices seemingly favored abandoning the Belton rule in favor of an approach focusing on whether it was “reasonable” for law enforcement to “believe that evidence relevant to the crime of arrest might be found in the vehicle.”

Refusing to disclose name to police. Hiibel v. Sixth Judicial District Court of Nevada, 124 S. Ct. 2451 (2004). Nevada statute requires a person to disclose his or her name in response to a police inquiry based on reasonable suspicion, but it does not require a suspect to give the officer a driver’s license or any other document. The defendant refused to identify himself when a police officer approached him in response to a report about a man assaulting a woman. He was convicted of refusing to identify himself. The Supreme Court held that refusing to identify oneself to a police officer during an investigation of a reported assault is not protected from prosecution by the Fourth or Fifth Amendment. The Nevada law was not vague and did not give unfettered discretion to police. Questions concerning a suspect’s identity are a routine and accepted part of many Terry stops, particularly in domestic disputes. The Court added that an officer may not arrest suspects for failure to identify themselves if the request for identification is not reasonably related to the circumstances justifying the stop. The Court also rejected a Fifth Amendment challenge to the conviction, holding that the disclosure of a name is not testimonial. But the Court acknowledged that a different rule might apply in a case in which furnishing identity at the time of a stop would give police a link in the chain of evidence needed to convict the individual of a separate offense.

Detaining occupant pending search. Muehler v. Mena, 124 S. Ct. 2842, cert. granted, June 14, 2004; decision below at 332 F.3d 1255 (9th Cir. 2003). Do police officers who have lawfully detained an individual pursuant to a valid search warrant engage in an additional, unconstitutional “seizure” if they ask that person questions about criminal activity without probable cause to believe that the person is or has engaged in such activity? In light of Michigan v. Summers, 452 U.S. 692 (1981) (a valid search warrant carries with it the implicit authority to detain occupants while the search is conducted), may police constitutionally handcuff and detain at gun-point for two to three hours the occupant of a suspected gang safe-house while officers search for concealed weapons and other evidence of a gang-related drive-by shooting?

Miranda’s custody requirement. Yarborough v. Alvarado, 124 S. Ct. 2140 (2004). Seventeen-year-old Michael Alvarado was driven to the police station for questioning about a murder. On arrival he was separated from his parents, who were told they could not come along. The police questioning lasted two hours. After Alvarado denied involvement in the murder, the police officer appealed to his sense of honesty. The boy then began to change his story and ultimately admitted that he had witnessed the murder. At the end of the interview, Alvarado went home, but he was later charged and the un-Mirandized statement was used against him. State courts upheld the questioning against a Miranda challenge, holding he was not “in custody,” but the federal courts granted habeas relief. The Supreme Court held that the state court did not unreasonably apply clearly established Miranda law when it held that he was not “in custody.” Reviewing Miranda and its progeny on what constitutes “custodial interrogation,” the Court concluded that fair-minded jurists could disagree whether Alvarado was in custody. The Court noted that the police did not transport Alvarado to the police station; they did not suggest he would be placed under arrest; his parents remained in the lobby during the questioning; he was told the interview would not be long; the interview focused on his accomplice’s crimes, not Alvarado’s; instead of pressuring Alvarado, the police appealed to his sense of honesty; and he was permitted to go home after the questioning.

Physical fruits of Miranda violations. United States v. Patane, 124 S. Ct. 2620 (2004). A suspect interrupted police as they advised him of his Miranda rights, then complained that a gun discovered as a result of his un-Mirandized, yet otherwise voluntary, statement should be suppressed. The Supreme Court held that the “fruit of the poisonous tree” doctrine does not bar the admission of physical evidence discovered based on an un-Mirandized interrogation. A three-Justice plurality concluded that a failure to give a suspect Miranda warnings does not require suppression of the physical fruits of the suspect’s unwarned but voluntary statements; the “core” protection of the Fifth Amendment involves protection against compelled testimony at trial. The plurality noted that it requires the closest possible fit between the Self-Incrimination Clause of the Fifth Amendment and any rule designed to protect it; the failure to give Miranda warnings does not by itself violate the Fifth Amendment, which is a fundamental “trial” right. Potential violations occur, if at all, only upon the admission of unwarned statements, and the exclusion of these statements is a sufficient remedy for a Miranda violation. The “fruit of the poisonous tree” doctrine, therefore, did not apply. Two other concurring Justices, who formed the majority decision, wrote that concerns underlying Miranda had to be balanced against other objectives of the criminal justice system. On the facts of this case and in light of the pistol’s important probative value, its exclusion could not be justified by a deterrence rationale. Unlike the plurality, however, the concurring Justices find it unnecessary to decide whether the detective’s failure to give Patane the full Miranda warnings should be characterized as a violation of the Miranda rule itself, or whether there is “[any]thing to deter” so long as the unwarned statements are not later introduced at trial. Justice Kennedy was the swing vote in this 5–4 decision and his concurring opinions in Patane and Seibert, issued the same day, can be read to signify that he (and thus the Court, in light of the 5–4 split in this case) is leaving open the possibility that a deterrence rationale might justify exclusion of some physical evidence in a case of severe, deliberate violation of Miranda.

Deliberate evasion of Miranda’s requirements. Missouri v. Seibert, 124 S. Ct. 2601 (2004). A common law enforcement technique is to interrogate a suspect before Miranda warnings are given, obtain the information sought, then Mirandize the suspect, and take a full confession. An officer admitted that he questioned Patrice Seibert for 20 minutes about her role in an alleged arson-homicide, without any Miranda warning. He then gave her a 20-minute break for a cigarette and coffee, provided Miranda warnings, and resumed the questioning. The Supreme Court held that the Miranda two-step violates the Fifth Amendment. Not only is the first statement inadmissible under Miranda, but so is the second statement.

Double Jeopardy
ÿVacillating judicial acquittals. Smith v. Massachusetts, 124 S. Ct. 2836, cert. granted, June 14, 2004; decision below at 788 N.E.2d 977 (Mass. 2003). Is the Double Jeopardy Clause’s prohibition against successive prosecutions violated where the judge unequivocally rules that the defendant is not guilty because the government’s evidence is insufficient, but later reverses the finding of not guilty?

Federal Crimes and Procedure
Federalism and bribery of state and local government employees. Sabri v. United States, 124 S. Ct. 1941 (2004). Title 18 U.S.C. § 666(a)(2), which allows a federal prosecution of those who bribe state or local government officials of entities that receive at least $10,000 in federal funding, is not unconstitutional even though it does not require the government to prove a nexus between the offense conduct and federal funding. The statute is a valid exercise of Congress’s Article I Necessary and Proper Clause authority to ensure that taxpayer dollars are spent for the general welfare, rather than frittered away in graft or upon projects undermined by graft, even though the statute does not require proof of a connection between the alleged bribe and the federal funds. Thus, the statute is a necessary and proper attempt to ensure the effective exercise of Article I’s Spending Clause authority. The Court’s decision added an “afterword” emphasizing the very limited circumstances in which facial challenges to statutes can be brought. As to Sabri himself, Congress was acting well within its limits and Sabri’s challenge, which nominally sought to impose a case-by-case jurisdictional element, was a form of “overbreadth” challenge. Overbreadth challenges, the Court noted, “are especially to be discouraged,” because they relax the familiar requirement of standing and invite judgments on “fact-poor records.”

Internet protection. Ashcroft v. ACLU, 124 S. Ct. 2783 (2004). The Court affirmed a five-year-old temporary injunction against enforcement of the Child Online Protection Act, 47 U.S.C. § 231, which, among other things, imposes a fine and imprisonment for knowingly posting, for “commercial purposes,” World Wide Web content that is “harmful to minors.” The temporary injunction is appropriate because the law likely violates the First Amendment and is not the least restrictive alternative to control the offending conduct. The Court remanded the case for continuing proceedings on the merits of the case, including developments in Internet technology and less restrictive legal alternatives.

Medicinal marijuana and federalism. Ashcroft v. Raich, 124 S. Ct. 2909, cert. granted, June 28, 2004; decision below at 352 F.3d 1222 (9th Cir. 2003). Does the federal Controlled Substances Act, insofar as it applies to intrastate cultivation, free distribution, and possession of marijuana for personal medicinal use, exceed Congress’s authority under the Commerce Clause?

ÿOvert acts in money laundering conspiracies. Whitfield v. United States and Hall v. United States, 124 S. Ct. 2871, 2872, cert. granted, June 21, 2004; decision below at 349 F.3d 1320 (11th Cir. 2003).The Court will consider whether the commission of an overt act is an essential element of a conviction under 18 U.S.C.
§ 1956(h), conspiracy to commit money laundering, and whether the district court abused its discretion in omitting an overt act element from its jury instruction on money laundering conspiracy.

ÿArmed career criminal sentencing. Shepard v. United States, 124 S. Ct. 2871, cert. granted, June 21, 2004; decision below at 348 F.3d 308 (1st Cir. 2003). The Armed Career Criminal Act, 18 U.S.C. § 924(e), imposes a mandatory minimum prison sentence of 15 years for a person convicted of being a felon in possession of a firearm where that person has previously been convicted of three violent felonies or serious drug offenses or both. In applying this rule to the generic crime of burglary, which is not always a violent felony, United States v. Taylor, 495 U.S.575 (1990), held that a sentencing court should employ a categorical approach to determine whether a defendant’s prior convictions qualify as predicates for this sentence enhancement, looking only to the fact of conviction and the elements of the statute of conviction, or to the charging document and the jury instructions. The questions presented are: (1) Does Taylor’s categorical approach apply where the defendant has pleaded guilty to a nongeneric charge of burglary brought under a nongeneric statute, where there is no contemporaneous record of the guilty plea proceedings, and where the judgment of conviction reflects a general finding of guilty; or may the sentencing court instead be required to conduct an inquiry, including an evidentiary hearing, into the facts underlying the conviction, to determine whether, in the prior guilty plea proceeding, both the defendant and the government believed that generic burglary was at issue? (2) If Taylor’s approach does not apply, may the sentencing court be required to consider a version of these underlying facts found in any document in the court file (such as an investigative police report or a complaint application) and, if the facts alleged in the document are not challenged by the defendant, regard them as sufficiently reliable evidence that the defendant was convicted of a qualifying generic burglary to support an Armed Career Criminal Act enhancement?

Overturning guilty pleas. United States v. Dominguez Benitez, 124 S. Ct. 2333 (2004). To obtain appellate relief for an unpreserved, nonconstitutional violation of a Federal Rule of Criminal Procedure 11 plea colloquy requirement, a defendant must show a reasonable probability that he or she would not have pleaded guilty in the absence of the Rule 11 violation. In the event of a constitutional error in the guilty plea context, however, a conviction will not be “saved even by overwhelming evidence that the defendant would have pleaded guilty regardless.”

Death Penalty
Required lesser included offense instructions. Howell v. Mississippi, 124 S. Ct. 2908, cert. granted, June 28, 2004; decision below at 860 So. 2d 704 (Miss. 2003). Do the Eighth and Fourteenth Amendments require a state court to charge the jury on at least one lesser included offense of capital murder, where the lesser is recognized under state law and supported by the evidence? The Court, sua sponte, added a second issue that may affect its jurisdiction to entertain the cert petition: Was the petitioner’s federal constitutional claim properly raised before the Mississippi Supreme Court for purposes of 28 U.S.C. § 1257 (permitting the Supreme Court to hear appeals from the state supreme court decisions)?

Batson claims. Miller-El v. Dretke, 124 S. Ct. 2908, cert. granted, June 28, 2004; decision below at 361 F.3d 849 (5th Cir. 2004). The Fifth Circuit reinstated its rejection of claims that the prosecution had purposely excluded African Americans from a capital jury in violation of Batson v. Kentucky, after the Supreme Court had already reversed and remanded that decision in Miller-El v. Cockrell, 537 U.S. 322 (2003). The Supreme Court again granted certiorari to determine if the court of appeals’s remand decision contravenes the Court’s decision and its analysis of evidence of invidious discrimination in jury selection.

Retroactivity of Mills v. Maryland. Beard v. Banks, 124 S. Ct. 2054 (2004). Mills v. Maryland, 486 U.S. 367 (1988) and McKoy v. North Carolina, 494 U.S. 433 (1990), which held that a state cannot require juries to unanimously agree on mitigating factors in death sentencing proceedings, do not apply retroactively.

Habeas Corpus
Recharacterizing section 1983 proceedings. Nelson v. Campbell, 124 S. Ct. 2117 (2004). A death-sentenced defendant filed suit under 42 U.S.C. § 1983, to enjoin Alabama’s use of the “cut-down” procedure to access hard-to-reach veins through which to lethally inject him. The suit was dismissed by the district court and affirmed by the court of appeals on successive petition grounds, holding that claims challenging particulars employed in carrying out the state’s chosen method of execution necessarily sound in habeas, 28 U.S.C. § 2254, and, thus, must satisfy section 2244(b)’s requirements as to successive petitions. The Supreme Court reversed the dismissal, holding that “[m]erely labeling something as part of an execution procedure is insufficient to insulate it from a § 1983 attack,” and remanded for an evidentiary hearing the plaintiff’s claims that “the use of a cut-down” procedure is “gratuitous,” rather than a “necessary prerequisite” to lethal injection. The Court left open the question “whether civil rights suits seeking to enjoin the use of a particular method of execution—e.g., lethal injection or electrocution—fall within the core of federal habeas corpus or, rather, whether they are properly viewed as challenges to the conditions of a condemned inmate’s death sentence.”

Requisite cautionary advice to pro se petitioners. Pliler v. Ford, 124 S. Ct. 2441 (2004). The Supreme Court rejected a rule requiring district courts to warn pro se habeas litigants of the AEDPA statute-of-limitations dangers of voluntarily dismissing a timely petition. It nevertheless remanded to the court of appeals to determine whether the limitations period should be deemed equitably tolled where the petitioner claimed he was affirmatively misled by the district court’s choice of options in dealing with a partially unexhausted habeas petition.

Staying mixed petitions. Rhines v. Weber, 124 S. Ct. 2905, cert. granted, June 28, 2004; decision
below at 346 F.3d 799 (8th Cir. 2003). Must mixed habeas petitions—those containing both exhausted and unexhausted claims—be dismissed, even though eventual exhaustion and refiling would occur outside of AEDPA’s one-year limitations period, or may a district court simply stay the pending mixed petition until all claims are fully exhausted?

Certificates of appealability. Tennard v. Dretke, 124 S. Ct. 2562 (2004). Finding that the court of appeals merely paid “lip service to the principles guiding issuance of a COA,” the Supreme Court reversed the denial, holding that a certificate of appealability should have issued to a habeas petitioner who challenged Texas’s failure to properly account for his evidence of low intelligence when imposing the death penalty.

Unreasonable application of federal law to state jury instruction. Middleton v. McNeil, 124 S. Ct. 1830 (May 3, 2004). The California Supreme Court did not unreasonably apply established federal law when it declined to reverse a murder conviction on the ground that there were four erroneous words in an otherwise correct jury instruction on the definition of the “imperfect self-defense” theory of voluntary manslaughter.
ÿObjectively reasonable application of federal law. Goughnour v. Payton, 124 S. Ct. 2388, cert. granted, May 24, 2004; decision below at 346 F.3d 1204 (9th Cir. 2003). Did the court of appeals violate 28 U.S.C.
§ 2254(d) when it found the California Supreme Court objectively unreasonable in holding that California’s “catch-all” mitigation instruction in capital cases is
constitutional as applied to postcrime evidence in

Presumption of reasonable application of Strickland v. Washington. Holland v. Jackson, 124 S. Ct. 2736 (2004) (per curiam). The court of appeals erred by holding that the state court’s application of Strickland v. Washington was unreasonable because the federal court considered evidence not before the state court. It also erred by incorrectly concluding that the state court had evaluated the prejudice prong under a preponderance of evidence standard instead of the reasonable probability standard. In interpreting what the state courts decided, federal court must give state courts the benefit of the doubt in accordance with the presumption that state courts follow the law.

Actual innocence exception to procedural default in noncapital cases. Dretke v. Haley, 124 S. Ct. 1847 (2004). The defendant was sentenced under Texas’s habitual offender statute requiring jury consideration of the nature, number, and timing of the priors. After sentencing, it was discovered that the jury’s habitual offender verdict was unfounded; due to the timing of his prior convictions, the defendant did not qualify as a habitual offender. State courts denied efforts to correct the sentence in postconviction proceedings, finding that the claim was defaulted because it was not raised at sentencing or on direct appeal, and rejected ineffective assistance of counsel claims. The defendant then filed a federal habeas petition, alleging that the evidence was insufficient to sustain his habitual offender sentence, and that his counsel was ineffective for failing to so argue at sentencing. The lower federal courts excused procedural default on grounds of “actual innocence” of the noncapital habitual offender sentence. Reversing, the Supreme Court held that it need not decide whether the “actual innocence” exception for procedurally defaulted habeas claims extends to noncapital sentencing error, because this exception should only be reached by federal courts where no other “cause and prejudice” can excuse a procedural default. The Supreme Court pointed out that a habeas petitioner’s alternative claims must first be considered before the actual innocence exception is invoked. Here, the defendant had a viable ineffective assistance of counsel claim and the state conceded it would not interpose a procedural claim to bar its consideration. Success on the merits of this claim would give the defendant all the relief he seeks—a resentencing—and would provide cause to excuse the procedural default.

Antiterrorism Detentions
U.S. citizens detained in the United States. Hamdi v. Rumsfeld, 124 S. Ct. 2633 (2004). Due process requires that a U.S. citizen detained for fighting against the United States in Afghanistan be given a meaningful opportunity to contest the factual basis for his detention in a proceeding before a neutral decision maker. “[A] state of war is not a blank check for the president when it comes to the rights of the nation’s citizens.”
Venue to challenge U.S. citizen detentions. Rumsfeld v. Padilla, 124 S. Ct. 2711 (2004). The federal district court in New York did not have jurisdiction to entertain habeas corpus proceedings to test the legality of the terrorism-related detention of a U.S. citizen at the U.S. Naval Brig in South Carolina. The petitioner could not merely name the secretary of defense as respondent, since he is not the immediate custodian of his person. Padilla may refile in the proper venue against the proper custodian.

Foreign nationals detained at U.S. prison outside the United States. Rasul v. Bush, 124 S. Ct. 2686 (2004). The federal courts have jurisdiction to entertain habeas corpus proceedings to test the legality of the detention of foreign nationals captured abroad and detained at the U.S. Navy prison at Guantanimo Bay, Cuba, as a result of the hostilities in Afghanistan.

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