The District Court's Criminal Justice Act Committee and the Federal Defender Office are jointly sponsoring a day long seminar on Federal Criminal Practice. There will be in depth discussions of current topics and issues, featuring presentations by Judges, AUSA's, Probation Officers, and Federal Defenders.

Click here for detailed information ...

Click here for registration form ...

The Office of Defender Services Legal, Policy, and Training Division is accepting applications for the position of National Litigation Support Administrator (NLSA) with the Training Branch, a part of the Legal, Policy and Training Division in the Administrative Office of the U.S. Courts. While the position will be supervised by the Chief of the Training Branch, the duty location will be within a Federal Public or Community Defender Organization.

Please refer to the official job announcement: National Litigation Support Administrator Announcemnt

Wrapping up its 2006-2007 term, the U.S. Supreme Court June 28 decided its lone outstanding case related to the criminal justice system.

In Panetti v. Quarterman, No. 06-6407, the court awarded a new day in court to a Texas death row inmate who seeks federal habeas corpus relief on the ground that he is incompetent to be executed. According to his experts, the petitioner understands that he is to be put to death and the factual predicate for it, but he is under a delusion that the true reason for his death sentence is state officials' desire to silence his preaching. The 5-4 court concluded that the Texas courts failed to provide the petitioner with the procedures he was due under the Constitution. The court also held that the Fifth Circuit used an improperly restrictive test in rejecting the incompetency claim on the merits. It said it is a mistake to treat a prisoner's delusional beliefs as irrelevant so long as he comprehends that the state has identified the link between his crime and the punishment to be inflicted. Along the way, the court held that a state prisoner who seeks federal habeas relief on the ground that he is incompetent to be executed, but who previously filed a petition that failed to raise that claim, need not satisfy the gatekeeping requirements of the Antiterrorism and Effective Death Penalty Act for presenting a new claim in a second or successive petition.

The U.S. Supreme Court June 21 decided one case related to the criminal justice system.

In Rita v. United States, No. 06-5754, the court ruled that federal appeals courts may apply a "presumption of reasonableness" to federal sentences that fall within the range of punishment recommended by the U.S. Sentencing Guidelines. Critics of this approach had argued that such a presumption effectively moved the guidelines system back toward the mandatory guidelines scheme that the court struck down in United States v. Booker.

The U.S. Supreme Court June 18 decided one case related to the criminal justice system.

In Brendlin v. California, No. 06-8120, the unanimous court ruled that an automobile passenger is seized for purposes of the Fourth Amendment when the police pull over the vehicle in which he is riding.

The U.S. Supreme Court June 14 decided one case related to the criminal justice system.

In Bowles v. Russell, No. 06-5306, the court held that a federal appeals court lacks jurisdiction to entertain an appeal filed outside the period prescribed by Fed. R. App. P. 4 and 28 U.S.C. S2107(c) for appeals whose filing period has been reopened, but within the period mistakenly allowed by a district court order.

The U.S. Supreme Court June 11 decided one case related to the criminal justice system.

In Fry v. Pliler, No. 06-5247, the court prescribed a standard of harmless-error review for federal courts to use in habeas corpus proceedings under 28 U.S.C. S2254 to evaluate the prejudicial effect of constitutional errors in state trials. A federal court is to apply the "substantial and injurious effect" standard of Brecht v. Abramson on habeas review, regardless of whether the state court recognized the error and reviewed it under Chapman v. California's "harmless beyond a reasonable doubt" standard, the court held.

The U.S. Supreme Court May 14 decided one case related to the criminal justice system.

In Schriro v. Landrigan, No. 05-1575, the court decided that a federal district court on habeas corpus review of a state death sentence did not abuse its discretion in refusing to grant the petitioner an evidentiary hearing to pursue a claim that his trial counsel provided ineffective assistance at sentencing. The petitioner had argued that his lawyer should have conducted a further investigation into possible mitigating circumstances even after the petitioner had forbidden him to present any mitigating evidence whatsoever.

The U.S. Supreme Court April 18 decided two cases related to the criminal justice system.

In Gonzales v. Carhart, No. 05-380, a 5-4 majority of the court rejected facial constitutional challenges to the federal Partial-Birth Abortion Ban Act of 2003 , which authorizes criminal penalties for performing so-called "partial birth" second-trimester abortions.

In James v. United States, No. 05-9264, the court ruled that a prior conviction for an attempt crime may count as a predicate "violent felony" for purposes of the Armed Career Criminal Act if it qualifies under the ACCA's "residual" clause by virtue of the fact that it "otherwise involves conduct that presents a serious potential risk of physical injury to another."

An informal, 90-minute lecture covering key developments in federal sentencing with Alan Dorhoffer, senior staff attorney at the U.S. Sentencing Commission. The webcast will include an online Question / Answer session conducted within a moderated chat room.

Click here for more information.

The U.S. Supreme Court Feb. 28 decided one case related to the criminal justice system.

In Whorton v. Bockting, No. 05-595, the court held that its landmark decision in Crawford v. Washington, which greatly restricted the admissibility of testimonial hearsay statements of a witness who does not testify at trial, is not retroactively applicable to cases on collateral review. Applying the retroactivity analysis of Teague v. Lane, the unanimous court decided that Crawford established a new rule of criminal procedure that did not embody a "watershed" principle that would implicate the fundamental fairness and accuracy of the criminal proceeding.

The U.S. Supreme Court Feb. 21 decided one case related to the criminal justice system.

In Wallace v. Kato, No. 05-1240, the court decided that the statute of limitations for filing a civil rights action under 42 U.S.C. S1983 seeking damages for a false arrest that led to criminal proceedings begins to run once the plaintiff becomes detained pursuant to legal process. Accordingly, it rejected a plaintiff's assertion that the limitations period in his false arrest case commenced when charges against him were dropped and he was released from custody, holding instead that the clock began to run when he appeared before a magistrate and was bound over for trial.

The U.S. Supreme Court Feb. 20 decided one case related to the criminal justice system.

In Lawrence v. Florida, No. 05-8820, the court held that the one-year limitations period for filing a federal habeas corpus petition is not tolled, pursuant to 28 U.S.C. S 2244(d)(2), between the time a prisoner is denied state post-conviction relief and the time the U.S. Supreme Court denies a petition for certiorari challenging the state court's denial of relief.

The U.S. Supreme Court Feb. 28 decided one case related to the criminal justice system.

In Whorton v. Bockting, No. 05-595, the court held that its landmark decision in Crawford v. Washington, which greatly restricted the admissibility of testimonial hearsay statements of a witness who does not testify at trial, is not retroactively applicable to cases on collateral review. Applying the retroactivity analysis of Teague v. Lane, the unanimous court decided that Crawford established a new rule of criminal procedure that did not embody a "watershed" principle that would implicate the fundamental fairness and accuracy of the criminal proceeding.

The U.S. Supreme Court Feb. 21 decided one case related to the criminal justice system.

In Wallace v. Kato, No. 05-1240, the court decided that the statute of limitations for filing a civil rights action under 42 U.S.C. S1983 seeking damages for a false arrest that led to criminal proceedings begins to run once the plaintiff becomes detained pursuant to legal process. Accordingly, it rejected a plaintiff's assertion that the limitations period in his false arrest case commenced when charges against him were dropped and he was released from custody, holding instead that the clock began to run when he appeared before a magistrate and was bound over for trial.

The U.S. Supreme Court Feb. 20 decided one case related to the criminal justice system.

In Lawrence v. Florida, No. 05-8820, the court held that the one-year limitations period for filing a federal habeas corpus petition is not tolled, pursuant to 28 U.S.C. S 2244(d)(2), between the time a prisoner is denied state post-conviction relief and the time the U.S. Supreme Court denies a petition for certiorari challenging the state court's denial of relief.

A new guide detailing the Sex Offender Management Program has been posted in the Reference section accessible from the CJA Members area. (password required)

The U.S. Supreme Court Jan. 22 decided 2 cases related to the criminal justice system.

In Cunningham v. California, No. 05-6551, the court struck down California's determinate sentencing scheme, which authorized judges to find facts that exposed defendants to "upper term" sentences above the presumptive term of imprisonment, on the ground that it violated the Sixth Amendment right to a jury trial as interpreted in Apprendi v. New Jersey, Blakely v. Washington, and United States v. Booker.

In Jones v. Bock, No. 05-7058, the court answered several questions concerning the Prison Litigation Reform Act's requirement that prisoners exhaust administrative grievance procedures before seeking redress in a civil rights action under 42 U.S.C. S1983. The court ruled that the PLRA's exhaustion requirement does not demand that inmates plead and demonstrate exhaustion in their complaints, but instead obliges defendants to raise a failure to exhaust as an affirmative defense. Nor, said the court, does the exhaustion requirement permit suit only against defendants who had been identified by the prisoner in the earlier grievance. Finally, the court held that a prisoner's failure to exhaust as to any single claim in the complaint does not require dismissal of the entire action.

The U.S. Supreme Court Jan. 9 issued two opinions in cases related to the criminal justice system.

In Burton v. Stewart, No. 05-9222, the court announced in a per curiam opinion that it would not address a habeas corpus petitioner's claim that the jury-trial rule established in Blakely v. Washington must apply retroactively to cases on collateral review, explaining that the petitioner failed to meet the threshold requirements for filing a second or successive habeas petition.

In United States v. Resendiz-Ponce, No. 05-998, the court declined to resolve the question on which it had granted review--whether the omission of an essential offense element from a federal indictment is subject to harmless-error analysis, concluding that the indictment in this case was not fatally defective. The court said that an indictment charging an alien with attempting to re-enter the United States after deportation need not allege any particular overt act toward commission of the offense.

The U.S. Supreme Court Dec. 11 decided one case related to the criminal justice system.

In Carey v. Musladin, No. 05-785, the court held that a state court did not unreasonably apply established federal law when it ruled that the wearing of buttons depicting a murder victim by members of the victim's family in front of the jury did not deny the defendant a fair trial. The court noted that while it has previously held that some government-sponsored practices, such as compelling an accused to wear jail garb in front of the jury, may infringe on fair trial rights, it has never directly dealt with whether conduct by private spectators such as the wearing of buttons or ribbons in the courtroom is potentially so prejudicial as to implicate those concerns

The lists of FY 2007 Office of Defender Services Training Branch's training offerings for panel attorneys, defender staff (many planned in coordination with the Federal Judicial Center), and, for the first time, some programs for both defender staff and private practitioners.

Listings of many of the events are also available on www.fd.org, as a registration form for the panel attorney events. Death penalty events will be listed soon on www.capdefnet.org.

The following information was provided by Attorney Jon L. Schoenhorn, Esq. via email to Tom:

Here is the hyperlink: http://www.govtrack.us/congress/bill.xpd?tab=summary&bill=h109-4472

"The Robing Room is a site by lawyers for lawyers. Their mission is to provide a forum for evaluating federal district court judges and magistrate-judges." The link is available from the links page.

In Clark v. Arizona, No. 05-5966, the court decided that a state's use of an insanity test couched solely in terms of the defendant's capacity to tell right from wrong does not offend the Constitution's due process guarantee. The court further decided that a state may limit consideration of defense evidence of mental illness and incapacity to its bearing on an insanity claim, thereby eliminating its significance directly on the mens rea element of the crime charged.

In Hamdan v. Rumsfeld, No. 05-184, the court, in a 5-3 decision, rejected the Bush administration's plan to use military commissions to try enemy combatants captured abroad and held at the Guantanamo Bay Naval Base in Cuba, saying that such commissions are not authorized by any act of Congress and that their structure and procedures violate both the Uniform Code of Military Justice and the Geneva Conventions.

In Sanchez-Llamas v. Oregon, No. 04-10566 (consolidated with Bustillo v. Johnson, No. 05-51), the court held that, even assuming Article 36 of the Vienna Convention confers a judicially enforceable right on a foreign national detained in the United States to have officials of his country's consulate notified of his detention, a violation of any such right does not require the suppression of statements the detainee makes to police during his detention. The court further decides that a state may subject an Article 36 claim to the same procedural default rules that apply generally to federal-law claims.

In Beard v. Banks, No. 04-1739, the court rejected a First Amendment challenge to a Pennsylvania prison policy that bars inmates housed in a special unit for particularly dangerous prisoners from having newspapers, periodicals, and photographs.

Five leading online service providers will jointly build a database of child-pornography images and develop other tools to help network operators and law enforcement better prevent distribution of the images. Read more....

In Washington v. Recuenco, No. 05-83, the court held that a violation of a defendant's Sixth Amendment right to have a jury find beyond a reasonable doubt any fact that increases his sentence beyond a statutory maximum, contrary to Blakely v. Washington, is not "structural" constitutional error requiring automatic reversal but instead is trial error subject to harmless-error analysis.

In Kansas v. Marsh, No. 04-1170, the court upheld a unique Kansas death penalty scheme that requires the imposition of a death sentence if the jury unanimously finds that aggravating circumstances are not outweighed by mitigating circumstances.

In Gonzalez-Lopez v. United States, No. 05-352, the court ruled that a trial court's violation of a defendant's Sixth Amendment right to be represented by paid counsel of choice amounts to structural error that entitles him to reversal of his conviction without a showing of prejudice.

In Woodford v. Ngo, No. 05-416, the court held that the Prison Litigation Reform Act's requirement that a prison inmate exhaust all available administrative remedies before challenging prison conditions in federal court, 42 U.S.C. §1997(e)(a), is not satisfied where the prisoner filed an untimely or otherwise procedurally defective administrative grievance or appeal.

In Dixon v. United States, No. 05-7053, the court ruled that requiring a defendant charged with firearms offenses to prove her defense of duress by a preponderance of the evidence instead of requiring the government to prove beyond a reasonable doubt that she did not act under duress did not violate her due process rights.

In Samson v. California, No. 04-9728, the court held that a state law that requires parolees to submit to warrantless, suspicionless searches by law enforcement officers at any time does not violate the Fourth Amendment. The court emphasized that parolees are akin to prisoners in many important respects, and it says that their considerably diminished expectation of privacy against searches without cause does not outweigh the public's strong interest in supervising parolees.

In Davis v. Washington, No. 05-5224, the court declared that whether statements made in the course of police interrogation are "testimonial," and hence must satisfy the requirements of the Sixth Amendment's Confrontation Clause as interpreted in Crawford v. Washington, depends on whether they were made under circumstances objectively indicating that the primary purpose of the interrogation was to enable police assistance to meet an ongoing emergency or, instead, was to establish or prove past events potentially relevant to later criminal prosecution.

The Office of the Federal Defender for the District of Connecticut has an opening for an Assistant Federal Defender in the New Haven office. The Federal Defender operates under authority of the Criminal Justice Act, U.S.C. § 3006A, to provide defense services to indigent persons in federal criminal cases.

No phone calls, e-mails or faxes. Deadline July 7, 2006.

To apply, send cover letter describing your experience, resume, three references, and recent writing sample to:

Thomas G. Dennis
Chief Federal Defender
10 Columbus Blvd FL 6
Hartford, CT 06106-1976

Please refer to the Official Posting for full details.[Acrobat Reader Required]

In Hudson v. Michigan, No. 04-1360, the court held that a violation of the Fourth Amendment's rule requiring police to knock and announce their presence before entering a home to execute a search warrant does not require suppression of evidence discovered following the entry. The court suggested that the threat of internal police discipline and liability in civil rights actions should adequately deter officers from violating the knock-and-announce rule

A new report from the Commission on Safety and Abuse in America's Prisons entitled 'Confronting Confinement' has been published. You can view the report by visiting the Commission on Safety and Abuse in America's Prisons website. (Acrobat Reader required)

The U.S. Supreme Court June 12 decided two cases related to the criminal justice system.

In Hill v. McDonough, No. 05-8794, the court held that a condemned Florida prisoner may use a civil rights action under 42 U.S.C. §1983 to mount an Eighth Amendment challenge to the lethal injection protocol the state plans to use to execute him, holding that the action is not the functional equivalent of a successive habeas corpus petition.

In House v. Bell, No. 04-8990, the court decided that a federal habeas petitioner on Tennessee's death row made the necessary showing to raise procedurally defaulted claims on the basis of a claim of "actual innocence." It concluded that the petitioner met the standard for "gateway" actual-innocence claims, enunciated in Schlup v. Deno, by demonstrating that it was more likely than not, in light of new evidence, that no reasonable juror viewing the record as a whole would lack reasonable doubt.

The U.S. Supreme Court June 5 decided one case related to the criminal justice system.

In Zedner v. United States, No. 05-5992, the court declared that a defendant may not prospectively waive the application of the federal Speedy Trial Act. The court also decided that the defendant's express waiver in this case did not estop him from subsequently challenging the district court's lack of a finding as to the appropriateness of granting an "ends of justice" continuance.

Effective July 1, 2006 federal courthouses in the Dsitrict of Connecticut will enforce the following policy on cell phone use. Please retain a copy for your records.

Cell Phone Policy

The U.S. Supreme Court May 22 decided one case related to the criminal justice system.

In Brigham City v. Stuart, No. 05-502, the court held that the Fourth Amendment does not bar law enforcement officers from entering a residence without a warrant if they have an objectively reasonable basis to believe that an occupant is seriously injured or imminently threatened with such injury, and that the officers' subjective motives for entering are irrelevant.

In Holmes v. South Carolina, No. 04-1327, the court held that a defendant's federal constitutional rights are violated by an evidence rule that precludes the defense from introducing proof that a third party committed the crime charged if the prosecution has introduced forensic evidence that strongly supports a guilty verdict against the defendant.

In Hartman v. Moore, No. 04-1495, the court decided that a plaintiff seeking damages on a claim that he was subjected to criminal prosecution in retaliation for exercising his First Amendment right to free speech has the burden of proving that there was no probable cause to support the criminal charge.

In Day v. McDonough, No. 04-1324, the court held that a federal district court has discretion to dismiss a habeas corpus petition sua sponte for failing to comply with the one-year statute of limitations set by the Antiterrorism and Effective Death Penalty Act even if the state has answered the petition without contesting the issue of timeliness.

The U.S. Supreme Court March 22 decided one case related to the criminal justice system.

In Georgia v. Randolph, No. 04-1067, the court ruled that one occupant of a residence cannot give effective consent to a warrantless search of the premises for evidence of a crime when another occupant present on the scene has refused to give permission for the search. Along the way, the court indicates that a warrantless entry to protect the safety of one occupant would be another matter.

The U.S. Supreme Court March 21 decided one case related to the criminal justice system.

In United States v. Grubbs, No. 04-1414, the court resolved two questions relating to the constitutionality of "anticipatory" search warrants. First, the court rejected an argument that such warrants are categorically unconstitutional. Second, the court held that an anticipatory warrant that does not specify the "triggering" condition for the search does not violate the Fourth Amendment's requirement that a search warrant describe with particularity the place to be searched and the people or items to be seized.

The U.S. Supreme Court Feb. 21 decided one case related to the criminal justice system.

In Gonzales v. Centro Espirita Beneficente Uniao do Vegetal, No. 04-1084, the court held that the federal government has failed to show, as required by the Religious Freedom Restoration Act, that barring a religious sect from using a sacramental tea for religious communion purposes is the least restrictive means to advance the compelling interests embodied in the federal Controlled Substances Act's ban on the use of hallucinogens.

In Gonzales v. Oregon, No. 04-623, the court upheld Oregon's Death With Dignity Act, ruling 6-3 that the federal Controlled Substances Act does not allow the U.S. Attorney General to forbid doctors to prescribe regulated drugs to assist patients in committing suicide as authorized by the state law.

In Rice v. Collins, No. 04-52 , the unanimous court held that the Ninth Circuit erred in ordering federal habeas corpus relief for a California prisoner on the ground that a state appellate court had made a unreasonable determination of the facts en route to rejecting the petitioner's claim that the state discriminated on the basis of race in exercising a peremptory challenge against a juror in violation of Batson v. Kentucky. The court said that the Ninth Circuit did not accord the state court's factual determinations the deference they were due under the Antiterrorism and Effective Death Penalty Act, and it criticized the court for relying on an array of "debatable inferences" to reject those findings.

The U.S. Supreme Court Jan. 11 decided one case related to the criminal justice system.

In Brown v. Sanders, No. 04-980, the court ruled 5-4 that an invalidated capital sentencing factor will render a death sentence unconstitutional unless one of the other sentencing factors allows the sentencer to give aggravating weight to the same facts and circumstances. The court thus abandoned the previous distinction it had drawn in capital cases between so-called "weighing" and "nonweighing" states.

The U.S. Supreme Court January 10 decided two cases related to the criminal justice system.

In United States v. Georgia, No. 04-1203, the court ruled that a disabled prisoner's lawsuit seeking money damages under Title II of the Americans With Disabilities Act based on the allegedly unconstitutional conditions of his confinement may go forward. The court decided that, insofar as Title II creates a private cause of action for damages against states for conduct that actually violates the Fourteenth Amendment, it validly abrogates states’ Eleventh Amendment sovereign immunity.

In Evans v. Chavis, No. 04-721, the court held that a federal habeas petitioner's case was not "pending" in California during the time prior to the California Supreme Court's summary denial of his post-conviction relief application, and therefore that the one-year limitations period set by the Antiterrorism and Effective Death Penalty Act for filing his federal petition was not tolled during that period.

The Administrative Office of the U.S. Courts, Office of Defender Services Training Branch is pleased to offer training programs to members of your Criminal Justice Act (CJA) panel. The events are described on Attachment 1 and are offered free of charge. A registration form is also attached. CJA panel attorneys can also register on the training page of www.fd.org. Participating CJA panel members will be responsible for their travel expenses related to the programs.

Changes in Federal Rules of Appellate Procedure take effect December 1, 2005. The most significant changes were made in procedures governing cross-appeals. See Rule 28.1. Click here for all the changes and additions.

The 2005 issue of Errores Juris (aka Reversible Errors) has been posted on the Reference page located in the CJA Member area.

The printed materials that will be distributed at tommorows CJA Federal Criminal Practice Seminar is available in electronic format. The electronic versions of the documents are fully searchable with bookmarked table of contents. Registered users may download the materials on the Seminar Section of the CJA Panel Member Area.

Last day to register for this event is September 19, 2005. CLE accreditation is pending. A complete agenda is available for download.

The 2005 Federal Criminal Practice Seminar will be held at Water's Edge in Westbrook, CT on Friday, September 30, 2005. If you would like to attend you may register using our online registration form or download a printable copy and fax it back to us.

You can view a preliminary agenda by clicking here.

Please complete your registration by Monday, September 19, 2005

On the final day of its 2004-2005 term, the U.S. Supreme Court June 27 decided two cases related to the criminal justice system.

In Castle Rock, Colo. v. Gonzales, No. 04-278, the court held that a woman whose children were murdered by her estranged husband after municipal police failed to respond to her repeated pleas to enforce a restraining order against him, as state law required them to do, did not have a property interest protected by the Due Process Clause in having the police enforce the order. Therefore, the court ruled, the mother's 42 U.S.C. §1983 civil rights actions against the municipality was properly dismissed.

In Bell v. Thompson, No. 04-514, the court decided that, assuming that Fed. R. App. P. 41 provides a court of appeals with authority to stay a mandate without issuing an order following the Supreme Court's denial of certiorari, the Sixth Circuit abused its discretion in withholding its mandate in this death penalty case for five months without a formal order after the Supreme Court had denied rehearing from the denial of the habeas petitioner's cert petition.

The U.S. Supreme Court June 23 decided three cases related to the criminal justice system.

In Halbert v. Michigan, No. 03-10198, the court held that indigent Michigan defendants who were convicted on the basis of guilty pleas must be afforded appointed counsel to pursue first-tier appeals under the state's appellate scheme, which requires guilty-pleading defendants to apply to the intermediate appellate court for leave to appeal.

In Mayle v. Felix, No. 04-563, the court decided that a federal habeas petitioner who wants to add a new claim for relief to a timely filed petition after the one-year limitations period for filing a petition has expired may do so only if the new claim is based on a "common core of operative facts" linking the original and new claims, and not if it is based on facts that differ in time and type from those set forth in the original pleading. The court rejected the argument that the relevant "transaction" for purposes of Fed.R.Civ.P. 15's relation-back rule is the petitioner's trial and conviction.

In Gonzalez v. Crosby, No. 04-6432, the court held that an unsuccessful federal habeas petitioner's Fed.R.Civ.P. 60(b)(6) motion challenging the district court's dismissal of his petition on the ground that it was time-barred was not the equivalent of a "second or successive" habeas petition subject to the rigorous standards governing successive petitions, and therefore that the district court may rule upon the motion without precertification by the court of appeals.

The U.S. Supreme Court June 20 decided two cases related to the criminal justice system.

In Rompilla v. Beard, No. 04-5462, the court held that even when a capital murder defendant and his family have suggested that there is no available mitigating evidence, defense counsel has a duty to make reasonable efforts obtain and review material that the attorney knows prosecutors will probably rely upon as aggravating evidence at trial. In Dodd v. United States, No. 04-5286, the court decided that the one-year limitation period within which a federal prisoner may file a motion to vacate, set aside, or correct his sentence under 28 U.S.C. §2255 ¶6(3) based on a right newly recognized by the Supreme Court begins to run on the date on which the Supreme Court "initially recognized" the right asserted, not the date on which the right was declared retroactive to cases on collateral review.

The U.S. Supreme Court June 13 decided four cases related to the criminal justice system.

In Miller-El v. Dretke, No. 03-9659, the court held that a condemned Texas prisoner is entitled to prevail on his claim that the prosecutors violated Batson v. Kentucky in using peremptory strikes to remove 10 of 11 qualified black prospective jurors from his jury.

In Wilkinson v. Austin , No. 04-495, the court decided that Ohio prisoners have a constitutionally protected liberty interest in avoiding assignment to a "supermax" maximum-security prison, and that the state's procedures used for classifying prisoners for supermax placement, which include a three-tier review process giving the inmate notice and opportunity for rebuttal at a hearing, comply with the Fourteenth Amendment's Due Process Clause.

In Bradshaw v. Stumpf, No. 04-637, the court held that the Sixth Circuit erred in holding that a capital defendant's guilty plea to aggravated murder and attempted aggravated murder was not knowing, voluntary, and intelligent, because the state, in a later trial of an accomplice, pursued a theory of the case inconsistent with the theory it had advanced in the defendant's case, because the identity of the triggerman was not material to the defendant's conviction.

In Johnson v. California, No. 04-6964, the court decided that a party objecting to the exercise of a peremptory challenge to a prospective juror need not show that it is more likely than not that the challenge, if unexplained, was based on impermissible group bias.

The U.S. Supreme Court May 31 decided two cases related to the criminal justice system.

In Arthur Andersen LLP v. United States, No. 04-368, the court held that Enron Corp.'s auditor should not have been convicted under 18 U.S.C. §1512(b), which makes it a crime to "knowingly ... corruptly persuad[e]" a person with intent to cause that person to withhold documents from or alter documents for use in an "official proceeding," for directing its employees to destroy documents pursuant to the firm's document retention policy, absent proof that those who ordered the destruction were conscious of the unlawfulness of that conduct. Additionally, the court said that the government was required to prove that there was a nexus between the corrupt persuasion and a particular official proceeding.

In Cutter v. Wilkinson, No. 03-9877, the decided held that Section 3 of the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. §2000cc-1(a)(1)-(2), which forbids the government to impose a "substantial burden" on the religious exercise of prison inmates unless that burden furthers a "compelling state interest" and does so by the "least restrictive means," does not improperly advance religion in violation of the First Amendment's Establishment Clause.

The full text and a summary of the court’s opinions will appear in the June 1 issue of the Criminal Law Reporter.

The U.S. Supreme Court April 26 decided two cases related to the criminal justice system, both involving the interplay between domestic and foreign laws.

In Small v. United States, No. 03-750, the court held that the federal statute that forbids possession of a firearm by a person "convicted in any court" of a crime punishable by more than a year in prison, 18 U.S.C. §922(g)(1), applies only to domestic, not foreign, prior convictions. The court said nothing in the statutory language indicates that Congress enacted the legislation with anything other than domestic concerns in mind, and it pointed out that foreign laws may criminalize conduct that domestic laws would allow.

In Pasquantino v. United States, No. 03-725, the court decided that a scheme to defraud a foreign government of tax revenue through the use of domestic interstate wires violates the federal wire fraud statute, 18 U.S.C. §1343. It said that applying the wire fraud statute to punish such acts does not violate the common-law revenue rule, because it is not a suit that aims to recover a foreign tax liability but a criminal prosecution intended to punish domestic criminal conduct.

The U.S. Supreme Court April 4 decided one case related to the criminal justice system.

In Johnson v. United States, No. 03-9685, the court held that in a case in which a prisoner collaterally challenges his federal sentence on the ground that a state conviction used to enhance that sentence has since been vacated,the one-year statute of limitations in 28 U.S.C. §2255 ¶ 6(4) begins to run on the date the petitioner receives notice of the order vacating the prior conviction, so long as the petitioner was diligent in seeking that order following the entry of judgment in the federal case.

The U.S. Supreme Court March 30 decide one case related to the criminal justice system.

In Rhines v. Weber, No. 03-9046, the court held that a federal district court has discretion to stay a "mixed" habeas corpus petition containing both exhausted and unexhausted claims while the petitioner goes back to state court to exhaust the latter, thereby tolling the Antiterrorism and Effective Death Penalty Act's statute of limitations, before returning to federal court for review of the perfected petition, so long as there was good cause for the failure to exhaust, the unexhausted claims are potentially meritorious, and nothing suggests that the petitioner is dragging his feet.

The U.S. Supreme Court March 22 decided two cases related to the criminal justice system.

In Muehler v. Mena, No. 03-1423, the court ruled that police officers executing a warrant to search a home did not violate the Fourth Amendment rights of a woman who was present on the premises by detaining her in handcuffs for several hours while they performed the search. The court further decided that asking the woman about her immigration status during the detention did not constitute an additional "seizure" within the meaning of the Fourth Amendment that would have required a reasonable suspicion of wrongdoing.

In Brown v. Payton, No. 03-1039,the court held that a California death row inmate was not entitled to federal habeas corpus relief on the basis of his claim that the state's "catch-all" jury instruction on mitigating evidence did not allow jurors to adequately consider his post-crime religious conversion, even though the prosecutor erroneously argued that post-offense mitigating evidence could not be considered under that intruction.

The full text and a summary of the court?s opinions will appear in the March 23 issue of the Criminal Law Reporter.

The U.S. Supreme Court March 7 decided two cases related to the criminal justice system. In Wilkinson v. Dotson, No. 03-287, the court held that state prisoners challenging the constitutionality of state parole procedures are not limited to pursuing relief under federal habeas corpus statutes, but instead may proceed by way of an action under 42 U.S.C. §1983 for declaratory and injunctive relief. The court emphasized that success in such a challenge would not necessarily demonstrate the invalidity of a prisoner's confinement or its duration.

In the other case, Shepard v. United States, No. 03-9168, the court, declining to "ease away" from Taylor v. United States, decided that the Armed Career Criminal Act, 18 U.S.C. §924, which provides a mandatory minimum sentence for possession of a firearm by a felon when the offender has three prior convictions of qualifying felonies, does not permit a sentencing judge who is determining whether a prior burglary conviction based on a guilty plea qualifies as a predicate felony under the statute to base that determination on police reports or other evidence that is beyond the charging document, the plea agreement, the record of the defendant's admission of the factual basis for the plea, or comparable judicial records used or made in adjudicating guilt in the prior case.

The U.S. Supreme Court March 1 decided one case related to the criminal justice system. In Roper v. Simmons, No. 03-633, the court declared that imposing the death penalty on defendants who were under 18 years of age at the time they committed their crimes violates the Eighth Amendment's prohibition against cruel and unusal punishment.

The U.S. Supreme Court February 23 decided one case related to the criminal justice system. In Johnson v. California, No. 03-636, the court ruled that the proper standard of review for an equal protection challenge to a California corrections department policy of racially segregating prisoners for up to 60 days when they enter a new prison is "strict scrutiny." The court declined to apply the deferential standard of Turner v. Safley, under which a prison policy that burdens inmates' fundamental rights may be upheld if it is rationally related to legitimate penological goals. It remanded the case to the lower courts for an application of the strict scrutiny standard.

Case Summaries and Commentary by Attorneys from the Federal Defenders Office in New York City are now available in a blog located here: http://circuit2.blogspot.com/

The U.S. Supreme Court Feb. 22 decided one case related to the criminal justice system. In Smith v. Massachusetts, No. 03-8661, the court held that a trial judge who ruled at the close of the prosecution's case that the defendant was not guilty on one of the several charges he faced due to insufficient evidence violated the Double Jeopardy Clause by resurrecting and submitting that charge to the jury after the defense had presented its case on the remaining charges.

The U.S. Supreme Court Jan. 24 decided a significant criminal search and seizure case. In Illinois v. Caballes, No. 03-923, the court ruled that police officers' use of a trained drug-detection dog to sniff the exterior of a vehicle for contraband during a lawful traffic stop, without any reasonable suspicion of criminal activity, infringes no expectation of privacy protected by the Fourth Amendment.

The court also issued two per curiam opinions. In one, the court dismissed Howell v. Mississippi, No. 03-9560, as improvidently granted. In the other, Bell v. Cone, No. 04-394, it decided that the Sixth Circuit failed to give a state court due deference in holding that a habeas petitioner was entitled to relief from his death sentence based on his challenge to a "heinousness" aggravating circumstance.

The United State Supreme Court has published an opinion on United States vs Booker on their website and is available for download.

We will also create a seperate section on the CJA Panel member page for all US vs Booker and Fanfan material and news. Click on the Reference Material button on the left menu.

Two blogs have been added to the links page under the 'Publications' category which are covering the Sentencing Guidelines issues and Booker/Fanfan.

• SCOTUSBlog
• Sentencing Law and Policy

The U.S. Supreme Court Jan. 11 decided one case related to the criminal justice system. In Whitfield v. United States, No. 03-1293, the court held that a conviction for conspiracy to commit money laundering, in violation of 18 U.S.C. §1956(h), does not require proof of an overt act in furtherance of the conspiracy.

The full text and a summary of the court's opinion will appear in the January 12 issue of the Criminal Law Reporter.

The updated version of the My Little Red Rules Books will be sent to the printer later this month and should be ready for distribution by the end of February at the latest. If you would like to order books for your office they are $5.50 a piece (pre-payment required). The ordering information has been sent to the CJA Mailing List.

The U.S. Supreme Court Dec. 13 decided four cases related to the criminal justice system

In Devenpeck v. Alford, No. 03-710, the court decided that probable cause to arrest a suspect for a crime is enough to satisfy the Fourth Amendment even if the police actually arrested the person for a different crime that was not "closely related" to the crime for which probable cause existed.

In Florida v. Nixon, No. 03-931, the court decided that counsel in a death penalty case does not automatically render ineffective assistance by neglecting to obtain his client's consent before pursuing a strategy of conceding guilt.

In Kowalski v. Tesmer, No. 03-407, the court declined to rule on whether a state's refusal to appoint appellate counsel for indigent defendants who pleaded guilty or nolo contendere is unconstitutional, deciding instead that the lawyers who made the challenge in this case lacked standing to assert the defendants' rights.

Finally, in Brosseau v. Haugen, No. 03-1261, the court decided in a per curiam opinion that a police officer who shot a felony suspect beginning to flee in a vehicle was entitled to qualified immunity in a civil rights suit under 42 U.S.C. 1983.

The position for Assistant Federal Defender had been closed and we are no longer accepting applications. Thank you to those who expressed interest in the position.

We have posted a guideline for filing a claim for excess compensation. The memo outlines what constitues an acceptable affidavit and a deficient affidavit. You can find the document in the CJA Panel section.

The U.S. Supreme Court Nov. 15 in a per curiam opinion held that the Texas courts erred in upholding the death sentence of a Texas prisoner whose sentencing jury was instructed to give effect to his mitigating evidence by answering "no" to one of the aggravating "special circumstances" alleged by the state if the juror concluded that the mitigating evidence justified a sentence less than death.

The U.S. Supreme Court Nov. 9 decided one case related to the criminal justice system. In Leocal v. Ashcroft, No. 03-583, the court held that the statute that defines "crime of violence" for purposes of federal law, 18 U.S.C. §16, does not apply to offenses committed through negligent conduct. Therefore, the court decided, an alien's conviction of driving while intoxicated does not qualify him for deportation under the federal law that authorizes the removal of an alien who commits a "crime of violence" as that term is defined in Section 16.

As a result of changes in Judicial Conference policies governing electronic access to cases, documents filed in criminal case files on or after November 1, 2004 will become available to the public, unless filed under seal or filed ex parte.

Please click on the notice for important information for counsel to consider when filing documents on or after November 1, 2004.

Our Password Request form was not working properly and as a result we were not receiving requests for access to the protected areas of the site.

If you submitted a request for a password during the last two weeks and have not received it yet please re-submit your information so we can get one out to you. Thank you for your patience.

Discussion/Brainstorming/Strategy session on Blakely v. Washington

WHEN:  Wednesday, July 14, 2004 @ 3:00 p.m.
                
WHERE: New Haven Courthouse
           141 Church St.
           Courtroom # 2 (Judge Arterton's)

Blakely presents extremely important issues, many of which have to be addressed immediately. We hope that all Panel Attorneys and other federal criminal practicioners will attend and provide their insights and suggestions. This will be an informal program with no specific agenda.

Blakely Related Material

We have added a new section to our Reference page related to Blakely v. Washington. Opinions and supporting documentation will be posted as we get them. Please log into the CJA Member section and then click on the 'Reference' button to access the documents.

The U.S. Supreme Court June 29 decided two cases related to the criminal justice system.

In Ashcroft v. American Civil Liberties Union, No. 03-218 the court held that the Child Online Protection Act, which criminalizes the knowing communication for commercial purposes" on the Internet of "any material that is harmful to minors," likely violates the First Amendment if less restrictive alternatives can be shown at trial, and thus its enforcement was properly enjoined by the lower courts.

In Sosa v. Alvarez-Machain, Nos. 03-339 & 03-485., the court issued two rulings: (a) The plaintiff Mexican national, who was abducted by other Mexicans at the behest of the Drug Enforcement Administration and was acquitted, after trial in the United States, of the murder of a DEA agent, is barred from suing the United States under the Federal Tort Claims Act for the false arrest that occurred in Mexico by the FTCA's exception for claims "arising in a foreign country," regardless of whether the arrest was planned by DEA agents in the United States. (b) Nor can the plaintiff sue one of his Mexican captors for damages under the Alien Tort Statute, 28 U.S.C. 1350, which gives federal district courts jurisdiction over "any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States," because his claim of arbitrary arrest does not fall within the narrow class of international norms recognized as binding customary international law.

These cases are the last to be decided by the court during the 2003-04 term. Criminal Law Reporter's Supreme Court Alert will resume next fall when the court begins its 2004-05 term in October.

The full text opinion for Blakely v. Washington has been published on the Supreme Court website for your reference. You can view the online opinion by visiting the Supreme Court website or clicking the direct link above.(Adobe Acrobat Reader required)

The U.S. Supreme Court today decided two cases in which habeas corpus petitioners had argued that rulings of the court favorable to capital defendants that were handed down after their convictions became final should be available to them. Both petitioners were unsuccessful.

In one case, Beard v. Banks, No. 02-1603, the court held that Mills v. Maryland, which invalidated capital sentencing schemes that require jurors to disregard mitigating factors not found unanimously, announced a new rule of constitutional criminal procedure that does not fall within the exceptions to nonretroactivity of Teague v. Lane and hence is unavailable to challenge the habeas petitioner's conviction that became final prior to Mills.

In the other case, Schriro v. Summerlin, No. 03-526, the court decided that Ring v. Arizona, which required that the existence of an aggravating factor be proved to a jury and not the judge under Arizona's capital sentencing scheme, announced a new procedural rule, not a "watershed rule of criminal procedure" and therefore does not apply retroactively to cases already final on direct review.

In another case, Blakely v. Washington, No. 02-1632, that involved the rule of Apprendi v. New Jersey--that any fact (other than a prior conviction) that increases the penalty for an offense beyond the statutory maximum be submitted to a jury and proven beyond a reasonable doubt--the court ruled that boosting the sentence of a guilty-pleading kidnapping defendant beyond the standard range on the ground of "deliberate cruelty" violated Apprendi inasmuch as that factor was neither admitted by the defendant nor found by a jury.

The court also decided in a Texas death penalty case, Tennard v. Dretke, No. 02-10038, that the Fifth Circuit employed an incorrect threshold "constitutional relevance" screening approach in deciding whether the jury was allowed to give effect to the defendant's evidence of mental retardation, as required in Penry v. Lynaugh. The jury had been instructed to determine the appropriate punishment by considering two special issues--whether the crime was committed deliberately and whether the defendant posed a risk of future dangerousness--that were found in Penry to have be insufficient to permit the jury give effect to Penry's mental retardation. The Fifth Circuit applied a threshold test that looked at whether the evidence showed a uniquely severe permanent handicap that bore a nexus to the crime, a standard that the Supreme Court condemned.

The U.S. Supreme Court June 21 decided two cases related to criminal law.

In Hiibel v. Sixth Judicial District Court, 03-5554, the court upheld against Fourth and Fifth Amendment challenges a state "stop and identify" statute that requires a person detained by a law enforcement officer on a reasonable suspicion of criminal activity to comply with a request to disclose his name. The court noted that the the request in this case was reasonably related to the circumstances that prompted the detention and that the defendant had no reasonable belief that providing his name would have been used against him in a criminal case.

In Pliler v. Ford, U.S., No. 03-221, the court held that a federal district court confronted with a pro se habeas corpus petition that contained both exhausted and unexhausted claims was not required to advise the petitioner that (1) it could not consider his motions to stay the mixed petition unless he chose to amend them and dismiss the unexhausted claims and (2) if applicable, his federal claims would be time barred (absent cause for equitable tolling) upon his return to federal court if he opted to dismiss his petition without prejudice and return to state court exhaust all his claims. The court declined to address the propriety of the Ninth Circuit's "stay-and-abeyance" procedure itself, simply holding that the warnings are unnecessary and, in some instances, perhaps counterproductive.

A defendant who seeks reversal of his conviction under a guilty plea, based on an unpreserved claim that the district court violated Federal Rule of Criminal Procedure 11(c)(3)(B) by failing to warn him that that he could not withdraw his plea if the trial court did not accept the government's recommendations, must show a reasonable probability that he would not have entered the plea but for the error, the U.S. Supreme Court held June 14. In U.S. v. Dominguez Benitez, No. 03-167, the court ruled that the defendant failed to make such a showing, given his statement to the court that he did not intend to go to trial, the strength of the government's case, and the fact that the plea agreement, which gave the Rule 11 warnings, was read to him in his native Spanish.

The U.S. Supreme Court June 1 held that a state court's determination that a 17-year-old suspect was not in custody for purposes of Miranda v. Arizona's warnings requirement was not the type of "unreasonable" ruling that deserves habeas corpus relief, even though the state court did not consider the suspect's age or inexperience with police interrogations. The court added that, as a general rule, a suspect's inexperience with police interrogations should not be considered when making Miranda custody determinations.

The U.S. Supreme Court May 24 decided two cases related to criminal law.

In Thornton v. United States, No. 03-5165, the court addressed the bright-line Fourth Amendment rule from New York v. Belton that allows police to conduct a warrantless search of the passenger compartment of a

vehicle incident to the arrest of a recent occupant. The court rejected a limitation on the rule that had been adopted in some jurisdictions that made application of the rule dependent on an officer's having signaled his intent to contact an arrestee before the arrestee exited his vehicle.

In Nelson v. Campbell, No. 03-6821, the court held that a death row inmate's challenge to a "cut-down" procedure that officials might use to access a vein for his execution was properly brought in a suit filed pursuant to 42 U.S.C. §1983, and that the lower federal courts erred by ruling that the suit should be treated as a petition for habeas corpus relief.

The full text and a summary of each opinion will appear in the May 26 issue of the Criminal Law Reporter.

The U.S. Supreme Court May 17 decided two cases related to the criminal justice system. In Sabri v. United States, No. 03-44, the court rejected a facial challenge to the statute, 18 U.S.C. 666, that makes it a federal crime to offer a bribe to an official of a local organization that receives federal grant money. The court said that Congress did not exceed its authority under the Constitution's Spending Clause and Necessary and Proper Clause by creating the crime without requiring a nexus between bribe and the federal money.

In Tennessee v. Lane, No. 02-1667, a paraplegic criminal defendant sued a state under Title II of the Americans with Disabilities Act after he was required to answer charges in a courthouse that was not easily accessible to him. Rejecting the state's claim of Eleventh Amendment immunity, the court held that the ADA is a valid exercise of Congress authority under 5 of the Fourteenth Amendment to enforce the substantive guarantees of the Due Process Clause.

The U.S. Supreme Court decided four cases related to criminal law today.

In Dretke v. Haley, No. 02-1824, the court held that, a before a federal district court may address a habeas corpus petitioner's argument that the actual innocence exception to the procedural default rule opens a gateway through which to present a defaulted constitutional claim, the district court must first address all nondefaulted habeas claims and all other grounds for cause to excuse the default.

In Scarborough v. Principi, No. 02-1657, the court held that the Equal Access to Justice Act, which authorizes the payment of attorneys' fees in civil rights actions and other civil suits when a party prevails against the government, permits a litigant to amend a timely filed application for attorneys' fees to include essential allegations after the expiration of the time limit for filing an application for fees.

In Johnson v. California, No. 03-6539, the court held in a per curiam opinion that it lacked jurisdiction to decide a case argued last month regarding California's standards for claims of racial discrimination in jury selection.

In a per curiam opinion in a case decided without oral argument, Middleton v. McNeil, No.03-1028, the court held that the U.S. Court of Appeals for the Ninth Circuit erred by concluding that the California courts acted unreasonably by ruling that a mistake in the jury instructions on self-defense given at a habeas corpus petitioner's murder trial did not mislead the jury.

An new guide provided by the U.S. Department of Justice has been posted to our Reference section.The guide, entitled 'Eyewitness Evidence: A Guide For Law Enforcement', discusses the unreliability of eyewitness identifications.

The U.S. Supreme Court Mar. 8 decided two criminal law cases.

In what may turn out to be one of the more important rulings of the term, the court held in Crawford v. Washington, No. 02-9410, that the Sixth Amendment's Confrontation Clause bars the admission at criminal trials of out-of-court testimonial statements of unavailable witnesses unless the defendant has had a prior opportunity to cross-examine the witness. The court scraps the rationale of Ohio v. Roberts and its progeny that allowed the admission of an uncross-examined hearsay statement so long as the trial judge found the statement to be sufficiently reliable

In Iowa v. Tovar, No., 02-1541, the court held that a trial judge accepting a guilty plea can ensure that the defendant's waiver of his Sixth Amendment right to counsel is knowing and intelligent without expressly advising the defendant of the risk that he may be overlooking a viable defense that counsel would recognize or that the defendant will lose the opportunity to have counsel offer an independent opinion as to the wisdom of the guilty plea.

Summaries and the full text of both opinions will appear in the Mar. 10 issue of Criminal Law Reporter.

On Feb. 25, the U.S. Supreme Court resolved a circuit split by making clear that not all federal civil rights actions that challenge the constitutionality of prison disciplinary proceedings are subject to the "favorable termination rule" from Heck v. Humphrey, 512 U.S. 477 (1994). The court held that the favorable termination rule did not apply to a prisoner's suit that sought damages for alleged procedural deficiencies but that did not challenge the imposition of discipline. A summary and the full text of the opinion, Muhammad v. Close, No. 02-9065, will appear in the March 3 issue of Criminal Law Reporter.