Criminal Justice Section  


Criminal Justice Magazine
Fall 2004
Volume 19 Number 3

Term Begins Where Last Term Ended

By Paul M. Rashkind

Paul 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 a member of the Defense Function, Corrections and Sentencing, and Book Committees, and a contributing editor to Criminal Justice magazine.

Term Begins Where Last Term Ended
The Supreme Court began its 2004 Term by hearing oral arguments about the application to federal sentencing of last Term’s decision in Blakely v. Washington (Booker, Fanfan), the constitutionality of executing juveniles who kill (Roper), and Michigan’s attempt to eliminate the right to court-appointed appellate counsel by abolishing appeals of right in guilty plea cases (Kowalski). If oral argument developments are indicative of the outcome of these still-undecided cases, the Court will apply Blakely to the U.S. Sentencing Guidelines without trashing the entire guidelines scheme, requiring instead that enhancing facts must be indicted and proved beyond a reasonable doubt before a federal sentence may exceed the base offense guideline range; prohibit executing 16- and 17-year-old juveniles, as cruel and unusual punishment, in the same way the Court prohibits execution of the mentally retarded; and punt on the constitutionality of Michigan’s guilty-plea appellate process, due to the questionable standing of the present litigants, in favor of a new certiorari grant to one of the other similar cases in which litigant standing is not at issue. These three cases were summarized in the spring and fall issues of Criminal Justice magazine. (Cert Alert, 19:1 CRIM. JUST. 62 (Spring 2004) and Cert Alert, 19:3 CRIM. JUST. 38 (Fall 2004).) Oral argument transcripts are available at
Pending decisions in those cases, the Court has added four new criminal cases to its docket, one affecting trial restraints and three others exploring different aspects of habeas corpus law. The trial restraints case tests the constitutionality of shackling and handcuffing a capital defendant during the penalty phase of trial, in full view of the jury, and the parties’ burdens in proving prejudice (Deck). The habeas corpus cases consider equitable tolling of the AEDPA statute of limitations during a questionable state court proceeding (Pace); the permissible procedure for correcting an enhanced sentence that is based on prior offenses, when the prior offense is later set aside (Johnson); and the federal court deference owed in the often-seen case in which capital counsel fails adequately to prepare and present mitigation evidence, yet the state supreme court finds that counsel was not ineffective (Rompilla).

Proving Prejudice
ÿShackling defendant during trial. Deck v. Missouri, 125 S. Ct. 360, cert. granted, Oct. 18, 2004; decision below at 136 S.W.3d 481 (Mo. 2004). The case asks: Are the Fifth, Sixth, Eighth, and Fourteenth Amendments violated by forcing a capital defendant to proceed through the penalty phase of a trial while shackled and handcuffed to a belly chain in full view of the jury; and, if so, doesn’t the burden fall on the state to show that the error was harmless beyond a reasonable doubt, rather than on the defendant to show that he was prejudiced?

Habeas Corpus
Habeas corpus AEDPA statute of limitations. Pace v. DiGuGlielmo, 125 S. Ct. 26, cert. granted, Sept. 28, 2004; decision below at 71 Fed. Appx. (3d Cir. 2003). The Court will consider whether the time for a state prisoner to file a federal habeas petition may be equitably tolled due to uncertainty in state law about what constitutes a “properly filed” petition under the state’s postconviction statute.

AEDPA tolling petition following vacatur of state conviction used for enhancement of federal sentence. Johnson v. United States, 125 S. Ct. 27, cert. granted, Sept. 28, 2004; decision below at 340 F.3d 1219 (11th Cir. 2003). A federal defendant’s career offender sentence was based on three prior state convictions. After federal sentencing, he successfully petitioned the state court to set aside a prior conviction. He then filed a petition in federal court under 28 U.S.C. § 2255 to have his federal sentence corrected, deleting the enhancement based on the vacated state conviction. The section 2255 petition was filed within a year of the state conviction vacatur, but more than a year after the federal sentence was entered. The Eleventh Circuit held that the petition was untimely because vacatur is not a “fact” about which the defendant was unaware, under section 2255, paragraph 6(4), so the time for filing his petition was not tolled under AEDPA. Rather, the court of appeals held, it is “a court action obtained at the behest of the defendant.” The untimeliness determination is in direct conflict with the contrary holding of the Fourth Circuit in United States v. Gadsen, 332 F.3d 224 (4th Cir. 2003). The Supreme Court granted certiorari to resolve the conflict.

Ineffectiveness of death phase counsel and failure to instruct jury on life sentence option. Rompilla v. Beard, 125 S. Ct. 27, cert. granted, Sept. 28, 2004; reported below at 355 F.3d 233, reh’g denied, 359 F.3d 310 (3d Cir. 2004). At the defendant’s state death penalty trial, counsel failed to obtain his school, medical, court, and prison records as part of their investigation. As a result, they failed to present to the jury any mitigating evidence regarding his “childhood, alcoholism, mental retardation, or possible organic brain damage.” Counsel also failed to communicate with two of the defendant’s siblings who lived nearby and would have advised counsel of evidence that the defendant was raised by alcoholic parents in a cold, violent, frightening, and abusive home. Question (1): Whether the Pennsylvania Supreme Court’s determination that this was not ineffective assistance of counsel is an unreasonable application of Strickland v. Washington, 466 U.S. 668 (1984) and Wiggins v. Smith, 539 U.S. 510 (2003). In addition, the trial judge failed to advise the jury as to the meaning of a life sentence in Pennsylvania, notwithstanding the jury’s questions on that issue on three different occasions during its sentencing deliberations. Question (2): Whether the Pennsylvania Supreme Court’s rulings on the latter issue is an unreasonable application of Simmons v. South Carolina, 512 U.S. 154 (1994) and Kelly v. South Carolina, 534 U.S. 246 (2002).

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