Criminal Justice Section  


Criminal Justice Magazine
Spring 2005
Volume 20 Number 1

Cert Alert:
Mid-Term: Pace Accelerates

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


After a slow start, likely compounded by the Chief Justice’s illness, the Court decided 13 criminal cases and balanced the docket by granting cert in 10 others. There was one blockbuster decision, which applied Apprendi and Blakely to the federal sentencing guidelines, then, rather than simply superimposing those Sixth Amendment requirements on the guidelines, instead engineered and retrofitted a new advisory federal sentencing system (Booker, Fanfan).
As expected, the Court sidestepped the constitutionality of Michigan’s limitation on the right to counsel in guilty-plea appeals (Kowalski)—due to standing concerns unique to the pending case—but less than a month later granted certiorari (cert) to decide that important right-to-counsel issue in a different case, sans standing problems (Halbert). Although the right to counsel was put on hold, the effectiveness of counsel in a capital trial was addressed as the Court overturned a per se determination of ineffectiveness based on counsel’s strategic decision to admit guilt to the jury without the client’s consent (Nixon).
Two search and seizure cases were decided, expanding the rights of police to arrest—even if they don’t know exactly why they are arresting a suspect (Devenpeck)—and of police dogs to sniff for contraband during a traffic stop (Caballes).
The Court clarified the law of conspiracy by rejecting a defendant’s contention that conspiracy to commit money laundering requires proof of an overt act (Whitfield). And, the Court agreed to clarify the burdens of proof relating to Batson jury challenges (Johnson), as well as jury instructions in evidence tampering prosecutions (Arthur Andersen LLP), and capital cases (Smith).
The Court granted cert in a panoply of habeas corpus cases, mostly centering on the Anti-terrorism and Effective Death Penalty Act’s (AEDPA) statute of limitations: When does it commence (Dodd)? Can a habeas petition be amended after it expires, under the relation-back doctrine (Mayle)? Can Rule 60(b)(6) be used to reopen a case erroneously dismissed due to a miscalculated limitations period (Gonzalez)? An. the Court will address AEDPA’s impact on the authority of an appellate court to withdraw its opinion affirming denial of habeas corpus after the rules required the mandate to have issued (Bell). Another habeas case will consider the application of international law to habeas corpus proceedings in U.S. courts (Medillin). In two per curiam decisions, the Court reinforced the deference federal habeas courts owe to state court determinations (Bell) and dismissed a cert originally granted to determine the right to a lesser included offense instruction in a capital case, when it became clear that issue had not been fully exhausted in state proceedings (Howell).
Two due process cases have been added to the docket. In the first, the Court will decide if the Due Process Clause protects against inconsistent claims in separate prosecutions for the same crime (Mitchell), while the second case concerns due process rights in the security classification of prison inmates (Wilkinson).
Finally, in a trio of immigration cases, the Court limited the time inadmissible aliens may be detained (Clark), decided that removable aliens may be removed to a foreign home country without that nation’s advance approval (Jama), and held that not all convictions for causing injury by drunken driving qualify as removable offenses (Leocal).

Federal Sentencing

Due process under federal sentencing guidelines. United States v. Booker & Fanfan, 125 S. Ct. 738 (2005). In a fragmented decision, two separate 5-4 majorities of the Court held (1) the Sixth Amendment as construed in Blakely v. Washington, 124 S. Ct. 2531 (2004), applies to the federal sentencing guidelines, but (2) superimposing those constitutional rights onto the present federal sentencing guidelines scheme is contrary to the Court’s view of congressional intent in adopting the Sentencing Reform Act of 1984. The “remedies” majority therefore severed and excised two sections of the statute: the provision that makes the guidelines mandatory, 18 U.S.C. § 3553(b)(1), and the provision governing appellate review of sentences, including de novo review of departures from the applicable guideline range. Consequently, the guidelines are no longer binding on federal sentencing courts and sentences will be reviewed on appeal for “unreasonableness.”

Right to Assistance of Counsel

Standing of lawyers to challenge denial of counsel on appeal. Kowalski v. Tesmer, 125 S. Ct. 563 (2004). In a challenge to Michigan’s refusal to appoint counsel for appeal in guilty-plea cases, the Supreme Court held that attorneys lack third-party standing to assert the rights of criminal defendants who have been denied appellate rights after pleading guilty. But, as indicated below, the Court quickly added to its docket a similar case without standing problems.

Denial of court-appointed counsel on appeal. Halbert v. Michigan, 125 S. Ct. 823, cert. granted, Jan. 7, 2005; decision below unreported. Addressing the unanswered constitutional questions in Kowalski, review has been granted to determine if Michigan’s law and practice of not appointing counsel to indigent defendants convicted by guilty plea violates the Fourteenth Amendment right to due process. Halbert presents an additional question: Is he entitled to resentencing because his counsel failed to render effective assistance by not objecting to improper scoring under Michigan’s sentencing guidelines, resulting in a considerably longer sentence?

Lawyer’s strategy to concede guilt. Florida v. Nixon, 125 S. Ct. 551 (2004). Defense counsel’s failure to obtain the defendant’s express consent to a strategy of conceding guilt at the guilt phase of a capital trial did not automatically render counsel’s performance deficient.

Search & Seizure

Basis for arrest. Devenpeck v. Alford, 125 S. Ct. 588 (2004). After being pulled over by police, Devenpeck tape-recorded the traffic stop, for which he was arrested without a warrant for allegedly violating the state’s Privacy Act. There is no such crime and he later filed a section 1983 civil rights action. In defense of the civil claim, the officers claimed that they actually had probable cause to arrest for a separate offense, impersonating an officer, so the traffic stop and subsequent arrest were reasonable. The Supreme Court held that a warrantless arrest by a police officer is reasonable even if the offense establishing probable cause is not “closely related” to the conduct the arresting officer gives the defendant as the reason for the arrest at the time of arrest. Under Whren v. United States, 517 U.S. 806 (1996), an arresting officer’s subjective reason for making an arrest is irrelevant to probable cause. What matters is whether, given the facts known to the officer, there is probable cause to believe that a crime has been or is being committed. The Court noted that a “closely related offense” test for probable cause would have the perverse effect of causing officers to cease giving reasons for arrest, or to cite every conceivable reason for the arrest.

Canine sniff during traffic stop. Illinois v. Caballes, 125 S. Ct. 834 (2005). After a traffic stop, the trooper called in the license number and registration at a snail’s pace, allowing time for a canine unit to arrive. The dog alerted on the car’s trunk, which led to a conviction for cannabis trafficking. The Illinois Supreme Court overturned the conviction, holding that a permissible canine sniff requires “specific and articulable facts.” The U.S. Supreme Court reversed, holding that police do not violate the Fourth Amendment when they use a drug-detecting dog to locate illegal drugs during a concededly legal traffic stop. The majority opinion stresses that its ruling is narrow, in a situation where a dog was used only to check out the exterior of a car stopped for speeding. The narrowness of the holding may leave open the constitutionality of conducting a dog-sniff investigation outside of a home, if that is capable of detecting legal activity going on inside the residence.


Overt acts in money laundering conspiracies. Whitfield v. United States, 125 S. Ct. 687 (2005). Conspiracy to engage in money laundering, in violation of 18 U.S.C. § 1956(h), does not require proof of an overt act in furtherance of the illegal agreement.
Burden of proof for Batson challenges. Johnson v. California, 125 S. Ct. 824, cert. granted, Jan. 7, 2005; decision below unreported. In order to establish a prima facie case under Batson v. Kentucky, 476 U.S. 79 (1986), must the objector show that it is more likely than not the other party’s unexplained peremptory challenges were based on impermissible group bias?

Jury instructions in federal witness tampering prosecution. Arthur Andersen LLP v. United States, 125 S. Ct. 823, cert. granted, Jan. 7, 2005; decision below at 374 F.3d 281 (5th Cir. 2004). The accounting firm Arthur Andersen was convicted of witness tampering under 18 U.S.C. § 1512(b), based on mass destruction of records by its employees, with intent to impair a Securities and Exchange Commission investigation. The trial court’s jury instructions on the meaning of the elements “corruptly,” “official proceeding,” and requisite knowledge were challenged on appeal in the Fifth Circuit, which upheld the instructions or, alternately, found harmless error. The Supreme Court granted cert to determine if the conviction must be reversed because the jury instructions upheld by the court of appeals misinterpreted the elements of the offense, in conflict with decisions of the Supreme Court and the courts of appeals for the First, Third, and D.C. Circuits.

Death Penalty

Validity of nullification instruction. Smith v. Texas, 125 S. Ct. 400 (2004) (per curiam). Smith was convicted of capital murder and sentenced to death. Before the jury reached its sentencing verdict, the trial judge issued a supplemental “nullification instruction” directing the jury to give effect to mitigation evidence only to the extent it would negate affirmative responses on two special issues relating to deliberateness and future dangerousness. This type of instruction was held constitutionally inadequate in Penry v. Johnson, 532 U.S. 782 (2001). Following denial of Smith’s federal habeas corpus petition, the Supreme Court granted certiorari and summarily reversed, holding that Smith submitted relevant mitigation evidence, but that the nullification instruction failed to allow jury to accord full weight to such evidence.

Habeas Corpus

Commencement of limitations period. Dodd v. United States, 125 S. Ct. 607, cert. granted, Nov. 29, 2004; decision below at 365 F.3d 1273 (11th Cir. 2004). Does the one-year limitations period in 28 U.S.C. § 2255 6(3) begin to run when either the Court or the controlling circuit court has held that the relevant right applies retroactively to cases on collateral review (as the Third, Fourth, Sixth, Seventh, and Ninth Circuits hold) or when the Court recognizes a new right, whether or not it is made retroactively applicable to cases on collateral review (as the Fifth and Eleventh Circuits hold, and the Second and Eighth Circuits have stated in dicta)?

Timeliness of amendment to petition. Mayle v. Felix, 125 S. Ct. 824, cert. granted, Jan. 7, 2005; decision below at 379 F.3d 612 (9th Cir. 2004). Ninth Circuit held that the relation-back provision of Federal Rule of Civil Procedure 15(c)(2) applies in a habeas corpus proceeding, allowing amendment of a habeas petition when the new claim “arose out of the conduct, transaction, or occurrence” set out in the original pleading. To this end, the court of appeals held that an amendment filed after AEDPA’s one-year statute of limitations has expired is nevertheless timely under the relation-back doctrine so long as the new claim stems from the prisoner’s trial, conviction, or sentence. The Supreme Court granted the state’s petition for certiorari to determine if Rule 15(c)(2) can be applied in this way to avoid the one-year statute of limitations set forth in 28 U.S.C. § 2244(d)(1).

Viability of Rule 60(b)(6) post-AEDPA. Gonzalez v. Crosby, 125 S. Ct. 961, cert. granted, Jan. 14, 2005; decision below at 366 F.3d 1253 (11th Cir. 2004) (en banc). Gonzalez’s habeas corpus proceeding was erroneously dismissed as untimely due to the district court’s miscalculation of AEDPA’s statute of limitations. The Eleventh Circuit denied a certificate of appealablity, but after the appeal process ended, the U.S. Supreme Court decided Artuz v . Bennett, 531 U.S. 4 (2004), correcting the lower courts’ erroneous computation of the limitations period. Gonzalez filed a motion under Federal Rule of Civil Procedure 60(b)(6) to reopen his habeas proceeding due to the intervening change in law. The district court ruled that it lacked jurisdiction to entertain the 60(b) motion, a ruling that was affirmed by the en banc court of appeals. The Supreme Court granted cert to decide if the court of appeals erred in holding that every Rule 60(b) motion in a habeas corpus case (other than for fraud under (b)(3)) is barred by AEDPA as constituting a prohibited “second or successive” petition.

Appellate court’s authority to withdraw opinion. Bell v. Thompson, 125 S. Ct. 823, cert. granted, Jan. 7, 2005; decision below at 373 F.3d 688 (6th Cir. 2004). Did the Sixth Circuit abuse its discretion by withdrawing its opinion affirming the denial of habeas corpus relief six months after Federal Rule of Appellate Procedure 41(d)(2)(D) made issuance of the mandate mandatory, without notice to the parties or any finding that the court’s action was necessary to prevent a miscarriage of justice, particularly where state judicial proceedings to enforce the inmate’s death sentence had progressed in reliance upon the finality of the judgment in the federal habeas proceedings?

Application of International Court of Justice rulings to U.S. courts. Medellin v. Dretke, 125 S. Ct. 862, cert. granted, Dec. 10, 2004; decision below at 371 F.3d 270 (5th Cir. 2004). Raising questions about the application of international law in American criminal cases, the Supreme Court granted a prisoner’s petition to review: (1) Must a U.S. court apply the International Court of Justice’s Avena holding that the United States courts must review and reconsider a foreign national’s conviction and sentence, without resort to procedural default doctrines? (2) As a matter of international judicial comity and in the interest of uniform treaty interpretation, should a court in the United States give effect to the ICJ’s LaGrand and Avena judgments in the case of a foreign national of a state signatory to the Vienna Convention?

Deference to state court determinations. Bell v. Cone, 125 S. Ct. 847 (2005) (per curiam). The Sixth Circuit granted a writ of habeas corpus after concluding that the “especially heinous, atrocious, or cruel” aggravating circumstance found by the jury at the sentencing phase of his state trial was unconstitutionally vague, and that the Tennessee Supreme Court failed to cure any constitutional deficiencies on appeal. The U.S. Supreme Court reversed because this result fails to accord to the state court the deference required by 28 U.S.C. § 2254(d)(1). Even if the Sixth Circuit was correct to conclude that the state’s statutory aggravating circumstance was facially vague, the court of appeals erred in presuming that the state supreme court failed to cure this vagueness by applying a narrowing construction on direct appeal. In fact, the state court did apply such a narrowing construction, and that construction satisfied constitutional demands by ensuring that the respondent was not sentenced to death in an arbitrary or capricious manner. The state court’s affirmance of the death sentence on this ground was therefore not contrary to clearly established federal law, so the court of appeals was without power to issue a writ of habeas corpus.

Exhaustion of remedies. Howell v. Mississippi, 125 S. Ct. 856 (2005) (per curiam). The petitioner contended in federal habeas proceedings that the Mississippi courts violated his rights under the Eighth and Fourteenth Amendments by refusing to require a jury instruction about a lesser included offense in his capital case. He did not, however, raise this claim in the Supreme Court of Mississippi, and that court never addressed the issue. After oral argument, the U.S. Supreme Court dismissed cert as improvidently granted due to the petitioner’s failure to exhaust remedies in the state supreme court.

Due Process

Inconsistent prosecutions. Mitchell v. Stumpf, 125 S. Ct. 824, cert. granted, Jan. 7, 2005; decision below unreported. After Stumpf’s aggravated murder conviction, premised on his role as the shooter, the state convicted another defendant in a separate trial, alleging (inconsistently) that the accomplice was the triggerman. The Sixth Circuit reversed Stumpf’s conviction, finding that the state’s inconsistent claims denied the due process right to a fair trial and also because his guilty plea was not knowing and voluntary because he was not aware that specific intent was an element of the crime to which he pleaded guilty. The Supreme Court granted cert on two questions: (1) Is a representation on the record from defendant’s counsel and/or the defendant that defense counsel has explained the elements of the charge to the defendant, sufficient to show the voluntariness of the guilty plea under Henderson v. Morgan, 426 U.S. 637, 647 (1976)? (2) Does the Due Process Clause require vacating a defendant’s guilty plea when the state subsequently prosecutes another person in connection with the crime and allegedly presents evidence at the second defendant’s trial that is inconsistent with the first defendant’s guilt?
Prisoner security classifications. Wilkinson v. Austin, 125 S. Ct. 686, cert. granted, Dec. 10, 2004; decision below at 372 F.3d 346 (6th Cir. 2004). Is due process violated if state prison officials decide to place a prisoner in a “super-maximum security” facility based on a predictive assessment of the security risk the prisoner presents, but prison regulations create a liberty interest for the prisoner in avoiding such placement?


Detention of inadmissible aliens. Clark v. Suarez Martinez, 125 S. Ct. 716 (2005). The holding of Zadvydas v. Davis, 533 U.S. 688 (2001), that the Immigration and Nationality Act limits the time that government may detain aliens who have been found removable to that reasonably necessary to effect removal, also applies to aliens deemed inadmissible to United States. The reasonable period of time is presumptively six months for each of these two categories of aliens and, since that time period was exceeded here, the aliens were entitled to release.

Removal without home country’s consent. Jama v. ICE, 125 S. Ct. 694 (2005). A foreign country’s inability to consent in advance to an alien’s removal under U.S. immigration law does not preclude removal to the alien’s country of birth.

DUI as an aggravated felony. Leocal v. Ashcroft, 125 S. Ct. 377 (2004). A DUI (driving under the influence) offense that does not have a mens rea requirement, or that requires only a showing of negligence in the operation of a vehicle, is not a “crime of violence” under 18 U.S.C. § 16, and, as a result, is not an “aggravated felony” for purposes of immigration removal proceedings.


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