Michigan v. Fisher

No. 0991

Decided December 07, 2009

Opinion Author: Per Curiam

=================================================================================

ON PETITION FOR WRIT OF CERTIORARI TO THE COURT OF APPEALS OF MICHIGAN

Per Curiam.

Police officers responded to a complaint of a disturbance near Allen Road in Brownstown, Michigan.FN#1 Officer Christopher Goolsby later testified that, as he and his partner approached the area, a couple directed them to a residence where a man was going crazy. Docket No. 276439, 2008 WL 786515, *1 (Mich. App., Mar. 25, 2008) (per curiam) (alteration and internal quotation marks omitted). Upon their arrival, the officers found a household in considerable chaos: a pickup truck in the driveway with its front smashed, damaged fenceposts along the side of the property, and three broken house windows, the glass still on the ground outside. The officers also noticed blood on the hood of the pickup and on clothes inside of it, as well as on one of the doors to the house. (It is disputed whether they noticed this immediately upon reaching the house, but undisputed that they noticed it before the allegedly unconstitutional entry.) Through a window, the officers could see respondent, Jeremy Fisher, inside the house, screaming and throwing things. The back door was locked, and a couch had been placed to block the front door.

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Google has added the ability to find and read full text legal opinions from U.S. federal and state district, appellate and supreme courts using Google Scholar. You can read about this new addition on Google's official blog.

The Google Scholar search is located at: http://scholar.google.com/

Porter v. McCollum

No. 08-10537

Decided November 30, 2009

Opinion Author: Per Curiam

=================================================================================

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

Per Curiam.

Petitioner George Porter is a veteran who was both wounded and decorated for his active participation in two major engagements during the Korean War; his combat service unfortunately left him a traumatized, changed man. His commanding officer's moving description of those two battles was only a fraction of the mitigating evidence that his counsel failed to discover or present during the penalty phase of his trial in 1988.

In this federal postconviction proceeding, the District Court held that Porter's lawyer's failure to adduce that evidence violated his Sixth Amendment right to counsel and granted his application for a writ of habeas corpus. The Court of Appeals for the Eleventh Circuit reversed, on the ground that the Florida Supreme Court's determination that Porter was not prejudiced by any deficient performance by his counsel was a reasonable application of Strickland v. Washington, 466 U. S. 668 (1984). Like the District Court, we are persuaded that it was objectively unreasonable to conclude there was no reasonable probability the sentence would have been different if the sentencing judge and jury had heard the significant mitigation evidence that Porter's counsel neither uncovered nor presented. We therefore grant the petition for certiorari in part and reverse the judgment of the Court of Appeals.FN1

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The Defender Office is again offering luncheon seminars on several important topics regarding sentencing in drug cases.

Hartford on Friday, September 25, at 12:30 p.m., in the GSA Conference Room on the third floor of the courthouse at 450 Main St. (just outside of the Marshal's office).

The program will discuss the recent successful challenges to second offender (851) notices; the government's new position on filing these notices (or not); how to handle the government's demand that a cooperator stipulate that he is 851 eligible; how to deal with the Second Circuit's decision regarding limitations on departures in U.S. v. Richardson; and the status of the bills pending in Congress to eliminate the 100 to 1 ratio and to change the rules on mandatory minimums (as well as the idea of seeking to continue sentencings in crack and man/min cases until these bills are acted upon).

As you can see, this is an ambitious program, and one that will be an immense help to you in dealing with the recent and upcoming changes in sentencing law. We hope to see you there.

To register for Hartford, call Annette at (860) 493-6260; for New Haven call Karen at (203) 498-4200.

A memo from the Administrative Office has been issued notifying users of changes to the CM/ECF system regarding notification of redaction. The following excerpt if the from the memo:

"The CM/ECF system has been further modified to refine the language of the message, require the acknowledgment, provide links to the Federal Rules regarding redaction, and display another reminder each time the attorney files a document."

Click here to read the full memo

In a 42 U.S.C. section 1983 action alleging an unlawful search of a student, the denial of summary judgment based on qualified immunity is affirmed where the search of Plaintiff's underwear violated the Fourth Amendment because the facts did not give school officials reasonable suspicion to search her underwear. Read more...

Defendant's drug conviction is reversed, where the trial court's admission of the prosecution's certificates by laboratory analysts, stating that material seized by police and connected to Defendant was cocaine of a certain quantity, violated petitioner's Sixth Amendment right to confront the witnesses against him. Read more...

In a 42 U.S.C. section 1983 action seeking the evidence used to convict Defendant of sexual assault for the purposes of DNA testing, summary judgment for Plaintiff is reversed where, assuming Plaintiff's claims could be pursued using Section 1983, he had no constitutional right to obtain post-conviction access to the State's evidence for DNA testing. Read more...

In an appeal from the District Court's order denying Defendant's motion to dismiss his wire fraud indictment on Double Jeopardy grounds, the order is reversed where an apparent inconsistency between a jury's verdict of acquittal on some counts and its failure to return a verdict on other counts does not affect the acquittals' preclusive force under the Double Jeopardy Clause. Read more...

Petitioner's removal from the U.S. based on his commission of an "aggravated felony" is affirmed, where the $10,000 threshold in 8 U.S.C. section 1101(a)(43)(M)(i) refers to the particular circumstances in which an offender committed a fraud or deceit crime on a particular occasion, rather than to an element of the fraud or deceit crime. Read more...

Defendant's Racketeer Influenced and Corrupt Organizations (RICO) Act conviction is affirmed where the District Court did not err in declining to instruct the jury that an association-in-fact enterprise must have an ascertainable structure beyond that inherent in the pattern of racketeering activity in which it engages. Read more...

Capital murder conviction is vacated, where Michigan v. Jackson, 475 U.S. 625 (1986), is overruled, because requiring an "initial invocation" of the right to counsel in order to trigger the Jackson presumption might work in states that require an indigent defendant formally to request counsel before an appointment is made, but not in more than half the states that appoint counsel without request from the defendant. Read more...

Drug distribution conviction is reversed and the case remanded, where Defendant's drug purchases from a third party over the phone constituted misdemeanors, because using a telephone to make a misdemeanor drug purchase does not "facilitate" felony drug distribution in violation of 18 U.S.C. section 843(b). Read more...

Defendant's aggravated identity theft conviction is reversed where 18 U.S.C. section 1028A(a)(1) requires the government to show that a defendant knew that the means of identification at issue belonged to another person. Read more...

The state supreme court's reversal of defendant's burglary conviction is reversed where the state obtained a confession from a confidential informant but defendant's statement to the informant, concededly elicited in violation of the Sixth Amendment, was admissible to impeach his inconsistent testimony at trial. Read more...

The Arizona Supreme Court's reversal of Defendant's drug conviction is affirmed, where police may search the passenger compartment of a vehicle incident to a recent occupant's arrest only if it is reasonable to believe that an arrestee might access the vehicle at the time of the search or that the vehicle contains evidence of the offense of arrest. Read more...

Defendant's bank robbery conviction is vacated, where the District Court erred by denying Defendant's motion to suppress his confession under McNabb v. US, 318 U.S. 332 (1943), and Mallory v. US, 354 U.S. 449 (1957), based on the government's delay in bringing him before a judge, where 18 U.S.C. section 3501 modified McNabb-Mallory but did not supplant it. Read more...

Related Resources: Case Docket

The plain-error test of Fed. R. Crim. P. 52(b), which instructs parties how to preserve claims of error, applies to a forfeited claim that the government failed to meet its obligations under a plea agreement, and applies in the usual fashion. Sentence for bank robbery is therefore affirmed. Read more...

The Vermont Supreme Court's reversal of Defendant's domestic violence conviction is reversed, where the Vermont Supreme Court held that delays attributable to Defendant's assigned counsel denied Defendant a speedy trial, but assigned counsel, just as retained counsel, act on behalf of their clients, and delays sought by counsel are ordinarily attributable to the defendants they represent. Read more...

Defendants conviction for possessing a firearm under 18 U.S.C. section 921 is affirmed, where a domestic relationship between the offender and victim need not be an element of the defendants misdemeanor crime of domestic violence to trigger Section 921s possession ban. Read more

Supreme Court docket

Spears v. US, No. 08-5721
In proceedings arising from the government's appeal of a sentence for conspiracy to distribute cocaine base and powder cocaine, a circuit court's ruling reversing a mandatory minimum sentence is reversed where district courts are entitled to reject and vary categorically from the crack-cocaine Sentencing Guidelines based on a policy disagreement with those Guidelines. Read more...

Waddington v. Sarausad, No. 07-772
In a case arising from a fatal drive-by shooting of a group of students standing in front of a Seattle high school, grant of a petition for habeas relief from defendant's conviction for being an accomplice to second-degree murder, attempted murder, and assault is reversed where: 1) Washington courts reasonably concluded that the trial court's instruction to the jury regarding accomplice liability was not ambiguous; and 2) even were it ambiguous, the circuit court still erred in finding the instruction so ambiguous as to cause a federal constitutional violation. Read more...

The following is a publication of the Office of the Federal Public Defender for the Northern District of New York. The cases are from United States Courts of Appeal and the United States Supreme Court. The opinions contain at least one point favorable to criminal defendants. The document was updated for December 2008.

The Multi-Track Federal Criminal Defense Seminar is designed to offer in depth instruction in a variety of substantive criminal topic areas.

• Multi-Track Seminar Information
• Draft Agenda
• Financial Assistance Application

Greenlaw v. US, No. 07-330
In a criminal case in which, over the government's objection, a district court made an error when calculating defendant's sentence, a circuit court's decision imposing a longer sentence on defendant after he appealed is reversed where, absent a government appeal or cross-appeal, the sentence defendant received should not have been increased. Read more...

Dist. of Columbia v. Heller, No. 07-290
The District of Columbia's prohibition on the possession of usable handguns in the home violates the Second Amendment to the Constitution, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense. The Second Amendment protects an individual's right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. Read more...

Kennedy v. Louisiana, No. 07-343
The Eighth Amendment of the Constitution bars a state from imposing the death penalty for the rape of a child where the crime did not result, and was not intended to result, in the victim's death. Read more...

Giles v. California, No. 07-6053
The theory of forfeiture by wrongdoing accepted by the California Supreme Court, which holds that a criminal defendant forfeits his right to confront the victim's testimony when the defendant commits an intentional criminal act that makes the victim unavailable to testify, is not a founding-era exception to the Sixth Amendment confrontation right. Read more...

Indata offers special pricing to CJA panel attorneys which is currently 50% off retail and maintenance (which is required). All you have to do to get the special pricing is call Indata sales (800-828-8292) and identify yourself as a Federal CJA panel member. Attached is a recent letter from inData describing this offer.

Letter to CJA about discount

Boumediene v. Bush, No. 06-1195, 06-1196
In habeas proceedings brought by aliens detained at Guantanamo after being captured in Afghanistan or elsewhere abroad and designated enemy combatants by tribunals, the Court rules that petitioners have the constitutional privilege of habeas corpus. The procedures for review of the detainees' status provided by the Detainee Treatment Act of 2005 are not an adequate and effective substitute for habeas corpus, and consequently, section 7 of the Military Commissions Act of 2006 (MCA), operates as an unconstitutional suspension of the writ. Read more...

Related Resources: Case Docket

Munaf v. Geren, No. 06-1666
In cases concerning the availability of habeas corpus relief arising from an international coalition force's detention of American citizens who voluntarily traveled to Iraq and were alleged to have committed crimes there, the Court rules that the habeas statute extends to American citizens held overseas by American forces operating subject to an American chain of command, even when those forces are acting as part of a multinational coalition. However, district courts may not exercise their habeas jurisdiction to enjoin the United States from transferring individuals alleged to have committed crimes and detained within the territory of a foreign sovereign to that sovereign's government for criminal prosecution. Read more...

Irizarry v. US, No. 06-7517
Federal Rule of Criminal Procedure 32(h), which states that "[b]efore the court may depart from the applicable sentencing range on a ground not identified . . . either in the presentence report or in a party's pre-hearing submission, the court must give the parties reasonable notice that it is contemplating such a departure," does not apply to a variance from a recommended Guidelines range. Read more...

Virginia v. Moore, No. 06-1082 In a case raising the issue of whether a police officer violates the Fourth Amendment by making an arrest based on probable cause but prohibited by state law, the Supreme Court rules that warrantless arrests for crimes committed in the presence of an arresting officer are reasonable under the Constitution, and that while states are free to regulate such arrests however they desire, state restrictions do not alter the Fourth Amendment's protections. Read more...

We have posted the new crack and immigration guidelines, as well as the revisions to the introductory Chapter One. The crack guidelines, effective May 1, (and retroactive) were passed to eliminate the "bad math" problem in the conversion table that deprived some defendants who were convicted of offenses involving crack and one or more other substances from receiving the two level decrease. The other amendments are effective November 1.

The 10th edition of "An Introduction to Federal Sentencing" is avalable for download.

Click here to download the guide

Wright v. Van Patten, No. 07-212
Grant of habeas relief from a conviction and sentence for first-degree reckless homicide is reversed where, contrary to the ruling below, no clearly established law contrary to the state court's conclusion justified collateral relief with regard to a claim that petitioner received ineffective assistance of counsel due to his participation in a plea hearing by speaker phone.

Gall v. US, No. 06-7949
In reviewing the reasonableness of sentences imposed by district judges, while the extent of the difference between a particular sentence and the recommended Sentencing Guidelines range is relevant, courts of appeals must review all sentences whether inside, just outside, or significantly outside the Guidelines range, under a deferential abuse-of-discretion standard. Read more...

View the Docket for Gall v. US

Watson v. US, No. 06-571
In the context of criminal sentencing, a person who trades his drugs for a gun does not "use" a firearm "during and in relation to . . . [a] drug trafficking crime" within the meaning of 18 U.S.C. section 924(c)(1)(A). Read more...

Kimbrough v. US, No. 06-6330
Under US v. Booker, the cocaine Sentencing Guidelines, like all other Guidelines, are advisory only, and the Fourth Circuit Court of Appeals erred in holding that a sentence outside the guidelines range is per se unreasonable when it is based on a disagreement with the sentencing disparity for crack and powder cocaine offenses. A judge may determine that, in a particular case, a within-Guidelines sentence is "greater than necessary" to serve the objectives of sentencing, and in doing so, the judge may consider the disparity between the Guidelines' treatment of crack and powder cocaine offenses. Read more...

View the Docket for Kimbrough v. US

Logan v. US, No. 06-6911 The "civil rights restored" exemption from enhanced sentencing under the Armed Career Criminal Act (ACCA), contained in 18 U.S.C. section 921(a)(20), does not cover the case of an offender who retained civil rights at all times, and whose legal status, postconviction, remained in all respects unaltered by any state dispensation. Read more...

See the Docket for Logan v. US

Happy Holidays! The Training Branch of the Office of Defender Services will present the Winning Strategies seminar from February 14-16, 2008 in New Orleans. Winning Strategies is a valuable educational opportunity for both experienced and new panel attorneys that focuses on the nuts and bolts of federal criminal practice, including effective sentencing advocacy. Financial assistance is available to qualified individuals. Attached is a draft agenda and flyer announcing the training program.

Please also note that further information, registration forms and financial assistance applications for Winning Strategies, can be found on www.fd.org.

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 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 30 decided one case related to the criminal justice system.

In Scott v. Harris, No. 05-1631, the court held that a police officer's use of his vehicle to ram a fleeing driver's car during a high-speed pursuit, causing it leave the road and crash, was reasonable under the Fourth Amendment in view of the danger the driver posed to innocent bystanders. Therefore, the court ruled, the officer was entitled to summary judgment in a civil rights lawsuit filed by the driver for injuries resulting from the crash.

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.

From November 15-16, 2007, the Training Branch in the Office of Defender Services will present the Train the Trainer Workshop in Seattle, Washington. The Train the Trainer Workshop is intended to enhance training skills and expand the pool of educated and experienced trainers available to serve as faculty at Training Branch events, as well as local training programs for CJA panel attorneys and federal defender staff. Participants will discuss and apply principles of adult learning, effective training design and persuasive presentation techniques and methodologies. It is open to federal defender staff (Assistant Federal Defenders, Computer Systems Administrators, Paralegals and Investigators) and CJA panel attorneys.

Registration Form Agenda

The PowerPoint presentations and all printed documentation from the Federal Criminal Practice Seminar held on October 12, 2007 have been posted to the CJA Panel Member section. (username and password required).

Effective August 28, the Second Circuit adopted Local Rule 34 which provides that from now on oral argument will be provided only upon request of the parties. The rule requires counsel for all parties to confer and file within 14 days after the due date of the last brief, a joint statement specifying which parties, if fewer than all, seek oral argument or whether the parties agree to submit the case on the briefs. Failure to timely submit the joint statement will generally result in the case being decided on the briefs. A copy of the full Rule and a form joint statement is available on the Second Circuit website.

Click here for the court's order

Interim Local Rule 34 can be found here.

Interim Local Rule 34(a)(2) joint statement to be submitted by counsel can be found here.

Logan v. US, No. 06-6911 The "civil rights restored" exemption from enhanced sentencing under the Armed Career Criminal Act (ACCA), contained in 18 U.S.C. section 921(a)(20), does not cover the case of an offender who retained civil rights at all times, and whose legal status, postconviction, remained in all respects unaltered by any state dispensation. Read more...

See the Docket for Logan v. US

Happy Holidays! The Training Branch of the Office of Defender Services will present the Winning Strategies seminar from February 14-16, 2008 in New Orleans. Winning Strategies is a valuable educational opportunity for both experienced and new panel attorneys that focuses on the nuts and bolts of federal criminal practice, including effective sentencing advocacy. Financial assistance is available to qualified individuals. Attached is a draft agenda and flyer announcing the training program.

Please also note that further information, registration forms and financial assistance applications for Winning Strategies, can be found on www.fd.org.

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 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 30 decided one case related to the criminal justice system.

In Scott v. Harris, No. 05-1631, the court held that a police officer's use of his vehicle to ram a fleeing driver's car during a high-speed pursuit, causing it leave the road and crash, was reasonable under the Fourth Amendment in view of the danger the driver posed to innocent bystanders. Therefore, the court ruled, the officer was entitled to summary judgment in a civil rights lawsuit filed by the driver for injuries resulting from the crash.

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.

From November 15-16, 2007, the Training Branch in the Office of Defender Services will present the Train the Trainer Workshop in Seattle, Washington. The Train the Trainer Workshop is intended to enhance training skills and expand the pool of educated and experienced trainers available to serve as faculty at Training Branch events, as well as local training programs for CJA panel attorneys and federal defender staff. Participants will discuss and apply principles of adult learning, effective training design and persuasive presentation techniques and methodologies. It is open to federal defender staff (Assistant Federal Defenders, Computer Systems Administrators, Paralegals and Investigators) and CJA panel attorneys.

Registration Form Agenda

The PowerPoint presentations and all printed documentation from the Federal Criminal Practice Seminar held on October 12, 2007 have been posted to the CJA Panel Member section. (username and password required).

Effective August 28, the Second Circuit adopted Local Rule 34 which provides that from now on oral argument will be provided only upon request of the parties. The rule requires counsel for all parties to confer and file within 14 days after the due date of the last brief, a joint statement specifying which parties, if fewer than all, seek oral argument or whether the parties agree to submit the case on the briefs. Failure to timely submit the joint statement will generally result in the case being decided on the briefs. A copy of the full Rule and a form joint statement is available on the Second Circuit website.

Click here for the court's order

Interim Local Rule 34 can be found here.

Interim Local Rule 34(a)(2) joint statement to be submitted by counsel can be found here.

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.

The U.S. Supreme Court Feb. 23 overturned a state court ruling that carved out an exception to the rule from Arizona v. Youngblood that a defendant raising a due process challenge to the state's failure to preserve evidence must show bad faith.

An Illinois court had held that Youngblood's bad faith requirement does not apply in a case in which the evidence at issue was the subject of a defense discovery motion. In a per curiam opinion issued without briefing or oral argument, the U.S. Supreme Court emphasized the distinction between information that is exculpatory and information that is merely useful to the defense.

Exculpatory information must be turned over the defense in the absence of a showing of bad faith, but the fact that information that is merely useful to the defense is the subject of a defense discovery motion does not relieve a defendant of the burden of demonstrating bad faith in the state's failure to preserve the evidence, the court held. The case is Illinois v. Fisher, 03-374.

The U.S. Supreme Court Jan. 26 reiterated the rule that law enforcement officers' contact with a defendant who has been formally charged outside of counsel's presence does not have to rise to the level of an "interrogation" for the contact to violate the Sixth Amendment right to counsel.

The court held that officers who went to the home an indicted defendant to execute an arrest warrant violated his right to counsel by discussing the charge against him in counsel's absence. The court also directed a lower court to consider the question of whether the Sixth Amendment's exclusionary rule allows an exception like the exception to the Fifth Amendment's exclusionary rule recognized in Oregon v. Elstad, 470 U. S. 298 (1985).

A summary and the full text of Fellers v. United States, No. 02-6320, will appear in the Jan.28 issue of Criminal Law Reporter.

The 2004 edition of Errores Juris (formerly Reversible Errors) has been posted in our Reference section for your convenience

The U.S. Supreme Court Jan.13 upheld a police information-seeking roadblock against a Fourth Amendment challenge. A police department seeking information about a fatal hit-and-run accident set up a checkpoint and stopped motorists passing by the location where the accident had occurred the previous weekend. One of the motorists was discovered to be driving while intoxicated, and he argued that the checkpoint violated the Fourth Amendment rule that forbids the use of suspicionless roadblocks for general law enforcement.

The U.S. Supreme Court decided, in Illinois v. Lidster, that this rule does not apply to roadblocks designed to obtain information about people other than the motorists stopped. The court held that the information-seeking roadblock in this case was reasonable after balancing the state's interest in investigating the accident against the motorists' diminished expectation of privacy in their cars. The full text and a summary of the court's opinion will appear in the Jan. 14 issue of Criminal Law Reporter.

The U.S. Supreme Court decided two cases related to criminal law Dec. 15.

In Maryland v. Pringle, the court ruled that a police officer who obtained permission to search a car during a traffic stop and who found cocaine hidden behind the back-seat armrest and rolls of cash in the glove compartment had probable cause to arrest all of the occupants of the car, including the front-seat passenger.

In Castro v. United States, the court held that a federal district court should not recharacterize a prisoner's pro se filing as a motion under 28 U.S.C. .2255 unless it first (1) informs the prisoner of its intent to recharacterize the filing, (2) informs the prisoner that any subsequent Section 2255 motions will be subject to the statutory restrictions on the filing of "second or successive" Section 2255 motions, and (3) presents the prisoner with the choice of either withdrawing the motion or amending it to include all of the Section 2255 claims the prisoner wishes to bring.

The following memo outlines the 'Winning Strategies' seminars and workshops for 2004:

Criminal Justice Act Seminars and Workshops

The U.S. Supreme Court held Dec. 2 that police officers executing a search warrant for drugs did not violate the knock-and-announce requirements of the Fourth Amendment and a federal statute, 18 U.S.C. .3109, when they forcibly entered a home 15 to 20 seconds after knocking and announcing their purpose. The officers' reasonable suspicion that the occupants of the residence would destroy evidence sought by the warrant if they waited any longer created an exigency justifying the forced entry, the court said. It made clear that the same standards that apply to a determination of whether a no-knock entry was constitutional apply as well to a determination whether an entry after knocking was constitutional.

The U.S. Supreme Court Nov. 3 issued another per curiam opinion tossing out a grant of federal habeas corpus relief on the ground that a federal appeals court failed give a state court's decision the deference required by 28 U.S.C. .2254(d) as amended by the Antiterrorism and Effective Death Penalty Act.

Ohio courts held that the absence of a jury instruction requiring a finding that the petitioner was a "principal" in an aggravated robbery and murder did not undermine his death sentence in a case in which there was no evidence presented that anyone other than the petitioner participated in the robbery.

The U.S. Court of Appeals for the Sixth Circuit granted habeas relief, concluding that the state courts wrongly applied harmless error review in a capital case. In an unanimous decision reached without briefing or oral argument, the Supreme Court held that the state courts' decision was not contrary to, or an unreasonable application of, its clearly established precedent, as required by the AEDPA.

The full text and a summary of the court's decision will appear in the Nov. 5 issue of Criminal Law Reporter.

Our Hartford office has an opening for an Assistant Federal Defender. Please read the following position description for more information.

• Assistant Federal Defender Position Announcement

Information regarding the new Case Management / Electronic Case Files ( CM/EF) can be found on the U.S. Court District of Connecticut web site. The direct link is http://www.ctd.uscourts.gov/cmecf/. You will have received or be receiving information regarding registration for Electronic Filing and procedures for filing documents beginning October 14, 2003.

We will post all necessary forms and information in our CJA Member Section soon. If you have any questions regarding electronic filing please call the CM/ECF help desks at the following numbers:

• New Haven (203) 773-2140
• Hartford (860) 240-3200
• Bridgeport (203) 579-5861

Wednesday, October 9, 2002, is the last day for CJA panel members to register for the Federal Criminal Practice Seminar on October 18, 2002, at Water's Edge.

The District Court's Criminal Justice Act Committee and the Federal Defender Office are jointly sponsoring a day long seminar on Federal Criminal Practice.

WHEN:
FRIDAY, OCTOBER 18, 2002
9:00 A.M. TO 4:30 P.M.

WHERE:
WATER'S EDGE
1525 BOSTON POST ROAD
WESTBROOK, CT

A Nuts and Bolts Program covering all aspects of federal criminal practice from bail to sentencing Faculty includes District Judges, Magistrate Judges, and Experienced Practitioners Comprehensive Written Materials. The Program is free; the location is beautiful! Reserve the date and plan to attend!

To register please fill out this form and fax back A.S.A.P.

Our move to a new hosting server has been complete. All of the sections of our site are operational, including the briefbank. If you have any problems accessing files or a particular section please let us know by sending an e-mail to defender@connix.com

Thank you for your patience.

We have moved all of our files to a new web server and as a result access to the briefbank and other secure areas is not working. We are working with our hosting provided to resolve the problem with the security program. We hope to have the Briefbank back online ASAP. Sorry for any inconvenience this be causing.

Our automated password registration form has been updated and is functioning properly. When you submit your information a new email message will be created with the form's contents. Please review this information for accuracy before sending.

Older news postings have been archived and placed on a seperate page. You can find all of our older posting by clicking on the 'News Archive' button on the left menu.

In Maine if you are a third party to a telephone call you can tape it. Nationally the law varies. Here is a web site that gives the law in all 50 states. www.rcfp.org/taping/

New DOJ Polcy guidelines have been posted to the Reference section. If you wish to obtain additional documents from the DOJ click on the following link: www.usdoj.gov/olp. The documents are as follows:

• DOJ Policy: Guidelines on General Crimes, Racketering Enterprise and Terrorism Enterprise Investigations
• DOJ Policy: Guidelines on FBI Undercover Operations
• DOJ Policy: Guidelines Regarding The Use of Confidential Informants
• DOJ Policy: Procedures for Lawful, Warrantless Monitoring of Verbal Conversations

The U.S. Supreme Court handed down the last of its opinions for the 2001-02 term June 27. The cases decided today include one concerning corporal punishment of prison inmates and one on suspicionless drug testing of public school students.

In Hope v. Pelzer, No. 01-309, the court held that Alabama prison guards do not enjoy qualified immunity from a 42 USC 1983 action alleging that they violated the Eighth Amendment by handcuffing the plaintiff-prisoner to a "hitching post." The court held that on the facts alleged by the prisoner, the practice violated the Eighth Amendment and that, despite the absence of any prior court decision condemning such conduct on "materially similar facts," reasonable officers would have known that their conduct was illegal.

In Board of Education of Independent School District No. 92 of Pottawatomie County, Okla. v. Earls, No. 01-332, the court upheld a policy subjecting middle and high school students to suspicionless urinalysis testing as a condition of participating in extracurricular activities.

The full text of these opinions will appear in the July 3 issue of the Criminal Law Reporter.

The U.S. Supreme Court decided three criminal cases June 24. In Harris v. United States, No. 00-10666, a divided 5-member majority reaffirmed the continuing vitality of McMillan v. Pennsylvania, 477 U.S. 79 (1986), which held that the Sixth Amendment's jury trial guarantee does not require that facts increasing the minimum sentence for an offense be found by a jury. That rule was not disturbed by Apprendi v. New Jersey, 530 U.S. 466, 67 CrL 483 (2000), which held that facts increasing the maximum sentence must be found by a jury under the reasonable doubt standard, the court said.

On the other hand, Apprendi does require that aggravating factors necessary for the imposition of a death sentence be found by a jury, the court held in Ring v. Arizona, No. 01-488.

In the third case, United States v. Ruiz, No. 01-595, the court said that the Fifth and Sixth Amendments do not require the prosecution to disclose information relating to impeachment or affirmative defenses before entering into a plea agreement with a defendant. The full text of these opinions will appear in the June 26 issue of the Criminal Law Reporter.]

The U.S. Supreme Court decided two argued criminal cases June 17 and issued a per curiam opinion in another case.

In United States v. Drayton, No. 01-631, the court made clear that law enforcement officers conducting interdiction operations involving suspicionless encounters with bus travelers are not required by the Fourth Amendment to advise passengers of their right not to cooperate.

In Carey v. Saffold, No. 01-301, the court gave an expansive reading to the word "pending" in the tolling provision of the statute of limitations governing habeas corpus petitions brought by state prisoners. The tolling provision operates, the court said, during periods between a state court's decision on an application for collateral review and the filing of a notice of appeal to a higher state court--or, in California, the filing of an original action in the higher court.

In Horn v. Banks, No. 01-1385, the court said that the Antiterrorism and Effective Death Penalty Act did not change the rule that a federal court considering a state prisoner's habeas corpus petition must conduct an analysis under the anti-retroactivity rule of Teague v. Lane, 489 U.S. 288 (1989), whenever the issue is properly raised by the state.

The full text of these opinions will appear in the June 19 issue of the Criminal Law Reporter.

The U.S. Supreme Court decided one criminal case June 10. In McKune v. Lile, No. 00-1187, the court upheld a state corrections department's sex offender treatment program against a claim that it compelled self-incrimination in violation of the Fifth Amendment. The court was unable to agree on a framework for analyzing such claims, but five justices--a four-member plurality and one concurring justice--agreed that the burdens imposed upon prisoners who refused to admit their past sexual offenses, and who were thus denied participation in the program, were not so onerous as to amount to compulsion.

The full text of this opinion will appear in the June 10 issue of the Criminal Law Reporter.

The U.S. Supreme Court decided one criminal case May 28, Bell v. Cone, No. 01-400.

Overturning a grant of habeas corpus predicated on ineffective assistance of counsel, the court emphasized the limited reach of United States v. Cronic, 466 U.S. 648 (1984), in which it said that the usual requirement of showing prejudice from counsel's substandard performance is inapplicable if counsel "entirely fails to subject the prosecution's case to meaningful adversarial testing." That language, the court said, comes into play only if counsel has completely failed to oppose the prosecution, not when, as in this case, the client's complaint goes to specific aspects of counsel's performance--failing to present mitigating evidence and waiving closing argument.

The full text of this opinion will appear in the May 29 issue of the Criminal Law Reporter.

On May 20, the U.S. Supreme Court decided two criminal cases. (A computer problem prevented us from sending this message yesterday. We apologize for the delay.)

In Alabama v. Shelton, No. 00-1214, the court held that, under the Sixth Amendment, an indigent defendant who has not been afforded the opportunity to have the assistance of appointed counsel may not be given a suspended sentence that he ultimately may be required to serve.

In United States v. Cotton, No. 01-687, the court ruled that a federal sentence enhanced on the basis of drug amounts not charged in the indictment, as required by Apprendi v. New Jersey, need not be corrected on review for plain error.

The full text of these opinions will appear in the May 22 issue of the Criminal Law Reporter.

The U.S. Supreme Court decided one criminal case April 16, Ashcroft v. Free Speech Coalition, No. 00-795. The court struck down provisions of the 1996 Child Pornography Prevention Act that prohibit any visual depiction that "is, or appears to be, of a minor engaging in sexually explicit conduct," and any sexually explicit image that is "advertised, promoted, presented, described, or distributed in such a manner that conveys the impression" that it depicts "a minor engaging in sexually explicit conduct." These provisions are overbroad, in violation of the First Amendment, the court held. The full text of this opinion will appear in the April 17 issue of the Criminal Law Reporter.

The U.S. Supreme Court decided one criminal case March 27, Mickens v. Taylor, No. 00-9285.

In a 5-4 decision, the court ruled that a trial court's failure to inquire into a defense lawyer's conflict of interest about which the trial court knew or should have known does not taint a conviction absent a showing that the conflict adversely affected the lawyer's performance.

In so holding, the court said that what its prior opinions meant by the phrase "actual conflict of interest" was a conflict that had an adverse affect on counsel's performance.

The full text of this opinion will appear in the April 3 issue of the Criminal Law Reporter.

The U.S. Supreme Court March 26 upheld a regulation of the Department of Housing and Urban Development requiring that leases for public housing authorize eviction of a tenant based on drug-related activity not only by the tenant but also by members of the tenant's household, the tenant's guests, or any person under the tenant's control, regardless of whether the tenant knew or should have known about that activity. The absence of an "innocent tenant" defense to eviction is consistent with the intent of Congress, the court ruled. The full text of this opinion will appear in the March 27 issue of the Criminal Law Reporter.

The FY 2002 judiciary appropriations bill includes funds to support a rate of $90 per hour for in-court and out-of-court work in all judicial districts for private “panel” attorneys accepting appointments under the Criminal Justice Act (CJA), 18 U.S.C. § 3006A. The new CJA panel attorney hourly rate of $90 will apply to in-court and out-of-court work performed on or after May 1, 2002. This includes that portion of work performed on or after May 1, 2002, in representations where the appointment of CJA counsel occurred prior to that date.

The U.S. Supreme Court decided one criminal case Mar. 4.

In United States v. Vonn, No. 00-973, the court held that a defendant who fails to lodge a contemporaneous objection to an error under the federal procedural rule on guilty pleas, Fed.R.Crim.P. 11, must satisfy the burdens of the plain-error rule, Fed.R.Crim.P. 52(b), in order to gain relief. The lower court had read Rule 11(h) as prescribing the more lenient harmless-error standard regardless of whether the defendant objected. The Supreme Court also held that the reviewing court may look at the entire record, not just the plea proceedings.

The full text of this opinion will appear in the Mar. 6 issue of the Criminal Law Reporter.

The Second Circuit maintains a CJA Panel to provide lawyers for indigent defendants on appeal from criminal convictions, and for petitioners in habeas corpus proceedings. This Panel is separate from the District Court Panel of which you are a member. Membership on the Second Circuit Panel is not required for you to represent on appeal a client whom you represented in District Court.

The Court of Appeals has recently adopted a formal application process for attorneys who wish to be on its appellate panel. The Court is seeking attorneys of superior experience and proven competence in the field of appellate criminal defense work. Admission to practice before the Second Circuit is required. Effective May 1, 2002, attorneys will be reimbursed at the rate of $90/hour for in and out of court time. Appointments to the Panel are for three year terms.

If you are currently a member of the Appellate Panel, your term will expire on August 25, 2002 and you must apply for re-appointment.

To apply for appointment or re-appointment to the Panel, you must submit an application to the Clerk of Court by the close of business on April 1, 2002. Copies of the revised CJA Plan and application forms are available from the Clerk of Court, 40 Centre Street, 18th Floor, New York, NY, 10007, or by calling (212) 857-8585, or by e-mail to CJA@ca2.uscourts.gov. A signed original plus three copies of the application and your resume, on three holed paper, along with a diskette containing both the application and resume must be submitted.

Effective February 19, 2002, the Office of the Federal Defender in Hartford, CT will move. Our new address is:

Our telephone numbers will remain the same:

The U.S. Supreme Court decided two cases Jan. 22 that are of interest to criminal law practitioners.

In Kansas v. Crane, No. 00-957, the court interpreted the Fourteenth Amendment's Due Process Clause and its prior opinion in Kansas v.Hendricks, 521 U.S. 346, 61 CrL 2183 (1997), as precluding civil commitment of a sex offender as a sexually violent predator absent proof that the person sought to be committed has serious difficulty controlling his or her dangerous behavior. A complete lack of volitional control is not required, however.

In Lee v. Kemna, No. 00-6933, the court expressly recognized an exception to the usual rule that a defendant's violation of a state procedural rule will bar federal habeas review. There can be atypical cases, the court said, in which compliance with the state rule would serve no perceivable state interest. The court went on to apply the exception to a case in which a petitioner sought a continuance because of the sudden disappearance of his alibi witnesses, failed to follow state rules governing motions for continuances, and later complained that the state court's denial of the request deprived him of his due process right to present a defense.

The full text of these opinions will appear in the Jan. 23 issue of the Criminal Law Reporter and will be available today at http://pub.bna.com/lw/00957.pdf and http://pub.bna.com/lw/006933.pdf.

Ron Gottlieb of the National Legal Aid & Defender Association has posted information regarding two seminars offering training in the defense of persons accused of capital crimes.

Life in the Balance is a capital case training conference for mitigation specialists, defense investigators and defense attorneys. Life in the Balance 2002 is a day and a half of specialized mitigation/investigation training, plus two and a half days devoted to instruction for capital defense litigators. It is a training event that provides an opportunity to improve skills and techniques. Participants will increase their knowledge in all areas of capital litigation. For additional info on this program, and other training, go to www.nlada.org web site training section.

The Tenth Annual Federal Capital Defense Strategy Session will be offered in conjunction with (and immediately preceding) the NLADA's Life in the Balance conference. The session draws together most of the lawyers currently handling federal capital cases throughout the country for two full days of death penalty training and discussion of issues specific to federal death penalty litigation. Topics include representing our clients in the DOJ death penalty authorization process; selective prosecution and discovery; government mental health evaluations; mitigation in the 21st century; and resources and case budgeting.

The U.S. Supreme Court decided one Fourth Amendment case and one free speech case Jan. 15.

In United States v. Arvizu, No. 00-1519, the court made clear that facts that are susceptible to innocent explanations when viewed in isolation may nevertheless be considered as part of the "totality of the circumstances" test prescribed by the court's prior opinions for determinations of whether there is reasonable suspicion for a vehicle stop or investigative detention. The court rejected the Ninth Circuit's effort to rule some facts out of bounds in such determinations.

In Thomas v. Chicago Park District, No. 00-1249, the court considered a scheme requiring permits for large-scale events in city parks and held that a content-neutral permit scheme regulating speech in a public forum need not contain the procedural safeguards, such as expeditious judicial review, that are required for content-based licensing schemes.

The full text of these opinions will appear in the Jan. 16 issue of the Criminal Law Reporter and will be available online today at http://pub.bna.com/lw/001519.pdf and http://pub.bna.com/lw/001249.pdf

The U.S. Supreme Court decided a prison case Jan. 8, Dusenbery v. United States, No. 00-6567. The court held that when the government proposes to forfeit property in which a prisoner may have an interest, the Fifth Amendment's Due Process Clause does not require that the government provide actual notice of the pending forfeiture. It was enough in this case, the court said, that the government sent notice by certified mail to the institution in which the prisoner was confined and that the institution had procedures for logging in and delivering certified mail to the addressee. The full text of this opinion will appear in the Jan. 9 issue of the Criminal Law Reporter.

In the single criminal case decided Jan. 9, 2001, by the U.S. Supreme Court, Kelly v. South Carolina, No. 00-9280, the justices clarified the reach of the rule of Simmons v. South Carolina, 512 U.S. 154 (1994), concerning the due process right of a capital defendant to a jury instruction that he would be ineligible for parole if sentenced to life imprisonment rather than death. Simmons applies not only if the prosecution argues the defendant's future dangerousness as a reason for the imposition of a death sentence but also if the prosecution introduces, for other reasons, evidence that tends to prove the defendant's future dangerousness, the court held in a 5-4 decision. The full text of this opinion will appear in the Jan. 16 issue of the Criminal Law Reporter

Following are the dates and locations of the three "Winning Strategies" seminars and the Advanced Trial Skills and Reinventing Sentencing Workshops for Criminal Justice Act (CJA) panel attorneys, to be presented by the Adminstrative Office of the U.S. Courts, Defender Services Division Training Branch, and the Federal Public and Community Defenders.

Click on the following image for a flyer in a Adobe Acrobat format, including an application form, that you may photocopy and fill out.

The U.S. Supreme Court decided one criminal case Dec. 10. In United States v. Knights, No. 00-1260, the court held that the Fourth Amendment allows police with reasonable suspicion of criminal behavior to conduct a warrantless search of the home of a probationer who is subject to a probation condition authorizing warrantless searches. The full text of this opinion will appear in the Dec. 12 issue of the Criminal Law Reporter.

The Reference section has been updated with two new documents pertaining to the USSG Ammendments that will take effect November 1, 2001. One document is a synopsis of the changes and the second is a 'reader' friendly version of the amendments themselves.

A new article entitled 'Computer and Internet Crimes: Inlcuding Pornography on the Internet' has been added to the Reference Material section. The article was written by G. Patrick Black of the FPD office in Tyler, TX. Please take the time to look as it gives a great abstract of the computer related crimes.

We have added a new section for reference materials like books and guides that you may find useful. Click on the 'Reference Material' button on the left menu to view the new section. If you would like to contribute material to this section or the site in general please send an e-mail to us and including a link to the materials you would like to post.

The U.S. Supreme Court issued its last opinions of the 2000-2001 term June 28. The four decisions included one criminal case and one dealing with detention of aliens who have been found, for reasons that can include criminal convictions, to be unlawfully present in this country.

In Tyler v. Cain, No. 00-5961, the court interpreted the Antiterrorism and Effective Death Penalty's requirement that a prisoner seeking to file a second or successive application for habeas corpus show, among other things, that his claim relies on a new rule of constitutional law that has been "made retroactive to cases on collateral review by the Supreme Court." The court said that "made" means "held"--that is, that the Supreme Court itself must have held the rule in question to be retroactive, either by holding so expressly or by rendering multiple holdings that necessarily dictate retroactivity of the new rule.

Applying this approach, the court said that it had not made retroactive the rule of Cage v. Louisiana, 508 U.S. 275 (1993), which concerns jury instructions misdefining "reasonable doubt."

In Zadvydas v. Davis, No. 99-7791, the court declined to read a provision of the immigration laws, 8 USC 1231(a)(6), as permitting indefinite detention of aliens who have been found to be removable but whose removal cannot be effected.

The full text of these opinions will appear in the July 4 issue of the Criminal Law Reporter.

We hope you have found these e-mail alerts useful, and we look forward to providing the service again during the court's next term.

On June 24, the U.S. Supreme Court decided one case involving the jurisdictional of Indian tribal courts and two cases involving federal habeas corpus jurisdiction in alien removal cases.

In Nevada v. Hicks, No. 99-1994, the court held that a tribal court has no jurisdiction over a suit against state law enforcement officials claiming that they committed torts and federal constitutional violations while executing warrants on tribal lands to search for evidence of state crimes committed off the reservation.

In Immigration and Naturalization Service v. St. Cyr, No. 00-767, the court looked at provisions of two 1996 statutes, the Antiterrorism and Effective Death Penalty Act and the Illegal Immigration Reform and Immigrant Responsibility Act, and concluded that neither deprives a federal district court of jurisdiction over a habeas corpus petition contesting the attorney general's conclusion, as a matter of statutory interpretation, that an alien convicted of an aggravated felony is not eligible for discretionary relief from deportation under Section 212(c) of the INA.

The court also held that an IIRIRA provision precluding discretionary relief from deportation for an alien convicted of an aggravated felony could not be applied to an alien who pleaded guilty to such an offense prior to the enactment of IIRIRA in reliance on the availability of discretionary relief under Section 212(c).

In a companion case, Calcano-Martinez v. Immigration and Naturalization Service, No. 00-1011, the court held that an IIRIRA provision that precludes the courts of appeals from exercising jurisdiction to review any final order of removal against an alien who is removable by reason of conviction of specified crimes does not deprive the federal district courts of jurisdiction over habeas corpus petitions raising constitutional and statutory challenges to removal orders.

The full text of these opinions will appear in the June 27 issue of the Criminal Law Reporter.

The U.S. Supreme Court decided a civil rights case and a habeas corpus case June 18.

In Saucier v. Katz, No. 99-1977, the court held that, in a 42 USC 1983 civil rights action that alleges excessive force in violation of the Fourth Amendment, the issue as to the reasonableness of the defendant officer's conduct for purposes of determining whether he is entitled to summary judgment on grounds of qualified immunity is distinct from the issue on the merits as to the reasonableness of the officer's conduct, and that an officer may, therefore, be entitled to summary judgment even when there exists a disputed issue of material fact regarding the reasonableness of the officer's conduct.

In Duncan v. Walker, No. 00-121, the court held that the time during which a state prisoner's prior application for federal habeas corpus relief was pending is not to be excluded when applying the Antiterrorism and Effective Death Penalty Act's statute of limitations.

The full text of these opinions will appear in the June 20 issue of the Criminal Law Reporter.

The U.S. Supreme Court decided two criminal cases and one civil racketeering case June 11.

In Kyllo v. United States, No. 99-8508, the court held that obtaining facts about heat sources inside a home by scanning the home's exterior with a thermal imaging device is a "search" under the Fourth Amendment.

In Alabama v. Bozeman, No. 00-492, the court held that the anti-shuttling provision of the Interstate Agreement on Detainers, which requires dismissal of an indictment or other charging instrument if a state obtains custody of a prisoner under the IAD but returns him to his original place of confinement without trying him on the indictment, has no exception for trivial or technical violations.

In Cedric Kushner Productions Ltd. v. King, the court held that 18 USC 1962(c), a RICO provision that makes it illegal for a "person" associated with an "enterprise" to conduct its affairs through a pattern of racketeering activity, requires that the "person" and the "enterprise" be distinct, but that the formal legal distinction between a corporation and its sole shareholder is sufficient.

The full text of these opinions will appear in the June 13 issue of the Criminal Law Reporter.

The U.S. Supreme Court disposed of two criminal cases June 4.

In a case that came up through the federal courts on habeas corpus review, Penry v. Johnson, No. 00-6677, the court decided that the jury instructions given at the sentencing phase of a Texas capital murder trial did not provide an adequate mechanism for allowing the jury to consider and give effect to mitigating evidence concerning the defendant's mental retardation and childhood abuse. The reach of the holding is limited, because Texas, since the time of the trial, has modified its capital punishment scheme to address the problem. The court also concluded that the petitioner was not entitled to habeas relief on the basis of the state appellate court's refusal to apply to his case the Fifth Amendment rule of Estelle v. Smith, 451 U.S. 454 (1981), which deals with the admissibility at capital sentencing of evidence from competency evaluations. Without saying much about Estelle, the Supreme Court pointed to several differences between its facts and those of this case and concluded that state's court's decision could not be deemed an "unreasonable application" of federal law within the meaning of the habeas statute.

In Florida v. Thomas, No. 00-391, the court dismissed a writ of certiorari it had granted to decide whether the bright-line rule of New York v. Belton, 453 U.S. 454 (1981), on vehicle searches incident to arrest may be applied when the arrestee is not in the vehicle when the police initiate contact with him. The court concluded that the state supreme court decision under review was not a "final judgment" under the applicable jurisdictional statute, 28 USC 1257(a).

The full text of these opinions will appear in the June 6 issue of the Criminal Law Reporter.

On May 28 the U.S. Supreme Court held in Booth v. Churner, 99-1964, that the Prison Litigation Reform Act's exhaustion-of-remedies requirement, 42 USC 1997e(a), applies regardless of whether the available administrative remedies provide the particular kind of relief the prisoner-plaintiff is seeking.

In another federal civil action brought by a prisoner, Becker v.Montgomery, No. 00-6374, the court held that the federal civil rules' requirement that a notice of appeal be signed by the appellant is not jurisdictional; therefore, the lack of a signature on an otherwise proper and timely filed notice of appeal does not strip the court of appeals of jurisdiction.

In Buckhannon Board & Care Home Inc. v. West Virginia Department of Health and Human Resources, No. 99-1848, the court disapproved the so-called "catalyst" theory applied by some federal courts under statutes authorizing awards of attorneys' fees to "prevailing parties." The case before the court did not involve the Civil Rights Attorney's Fees Awards Act, 42 USC 1988, but the court drew from cases under that act, and the reasoning in the opinion appears to be applicable to that act.

The court also handed down a per curiam decision, Arkansas v. Sanders, No. 00-262, making clear that an arrest based on probable cause is not vulnerable to Fourth Amendment challenge on the ground that it was a pretext for conducting a search.

The full text of all these opinions will appear in the May 30 issue of the Criminal Law Reporter.

The U.S. Supreme Court May 21 decided a case concerning the reach of 18 USC 2511, the civil liability provision of the federal wiretapping and electronic eavesdropping statute. In Bartnicki v. Vopper, Nos. 99-1687 and 99-1728, the court held that the statute and its Pennsylvania counterpart violate the First Amendment as applied to persons who furnished and published a tape recording of a conversation that dealt with a matter of public concern and that was intercepted by a third party.

The full text of this opinion will appear in the May 23 issue of the Criminal Law Reporter.

The Spring 2001 edition of our newsletter 'The Defense Case' has been posted in the Newsletter section.

The U.S. Supreme Court May 14 decided two cases of interest to criminal law practitioners.

In Rogers v. Tennessee, No. 99-6218, the court clarified the scope of the Due Process Clause as applied to courts' retroactive application of judicial constructions of criminal statutes. In this context, the court said, the Due Process Clause does not track all the prohibitions of the Ex Post Facto Clause; instead, due process forbids only those judicial interpretations that are unexpected and indefensible by reference to the law that had been expressed prior to the conduct in issue. Applying this standard in a murder case, the court upheld the Tennessee Supreme Court's retroactive application of its abolition of the common-law "year and a day" rule, under which a defendant may not be convicted of murder unless the victim died within a year and a day of the defendant's act.

In United States v. Oakland Cannabis Buyers' Cooperative, No. 00-151, the court held that the federal proscriptions on the manufacture and distribution of marijuana are not subject to a medical necessity exception. Accordingly, the court said that the Ninth Circuit was wrong to require an injunction against a California medical marijuana cooperative's activities to be modified to reflect the medical necessity defense recognized by state law.

The full text of these opinions will appear in the May 16 issue of the Criminal Law Reporter.

The U.S. Supreme Court April 25 handed down two criminal cases, both relating to the availability of federal habeas corpus relief.

In Daniels v. United States, No. 99-9136, the court held that as a general rule, 28 USC 2255 may not be used to challenge a federal sentence on the ground that a prior state conviction used to enhance that sentence was constitutionally invalid.

In Lackawanna County, Pa., District Attorney v. Coss, No. 99-1884, the court extended the same rule to bar challenges under 28 USC 2254 to state convictions enhanced on the basis of allegedly unconstitutional expired state priors. Both decisions recognized an exception for challenges based on alleged violations of the right to counsel as set forth in Gideon v. Wainwright, 372 U.S. 3353 1963).

In addition, a plurality in each case left open the possibility that a federal habeas challenge could be maintained if, through no fault of his own, the petitioner had no other avenue for challenging the prior conviction. The full text of these opinions will appear in the May 2, 2001 issue of the Criminal Law Reporter..

The U.S. Supreme Court decided a Fourth Amendment case April 24, Atwater v. Lago Vista, Tex., No. 99-1408. Ruling in a civil rights case based on an arrest for a seatbelt violation, the court held that the Fourth Amendment does not forbid warrantless arrests for minor offenses, such as nonviolent, nonjailable misdemeanors. The text of this decision will appear in the April 25 issue of the Criminal Law Reporter.

The U.S. Supreme Court April 25 handed down two criminal cases, both relating to the availability of federal habeas corpus relief. In Daniels v. United States, No. 99-9136, the court held that as a general rule, 28 USC 2255 may not be used to challenge a federal sentence on the ground that a prior state conviction used to enhance that sentence was constitutionally invalid. In Lackawanna County, Pa., District Attorney v. Coss, No. 99-1884, the court extended the same rule to bar challenges under 28 USC 2254 to state convictions enhanced on the basis of allegedly unconstitutional expired state priors. Both decisions recognized an exception for challenges based on alleged violations of the right to counsel as set forth in Gideon v. Wainwright, 372 U.S. 3353 (1963). In addition, a plurality in each case left open the possibility that a federal habeas challenge could be maintained if, through no fault of his own, the petitioner had no other avenue for challenging the prior conviction. The full text of these opinions will appear in the May 2 issue of the Criminal Law Reporter.

The U.S. Supreme Court decided one criminal case April 2, Texas v.Cobb, No. 99-1702.

The court cut back on an exception lower courts had developed to the rule that the Sixth Amendment right to the assistance of counsel is "offense specific." The court held 5-4 that the attachment of the right with respect to a formally charged offense does not extend to an uncharged offense that is factually intertwined with the charged offense unless the offenses are the "same" under Blockburger v. United States, 284 U.S. 299 (1932)--in other words, unless one of the offenses requires proof of no fact that the other does not.

The full text of this opinion will appear in the April 4 issue of the Criminal Law Reporter.

The hourly rates for CJA Panel Attorneys have been increased to $75 for in-court and $55 for out-of-court work. The new rates will apply to all work performed on CJA files on or after April 1, 2001. Please use the new rates when preparing your vouchers.

Efforts to achieve an across the board rate of $113 starting in fiscal year 2002 are continuing.

The Federal Defender Training Branch is holding a Reinventing Sentencing Workshop for CJA Panel attorneys and federal public and community defenders from June 8-10, 2001, in Birmingham, Alabama. The program has been developed by the AO Defender Services Division in conjunction with an advisory group of defenders. The workshop format will include a mix of lectures and small group exercises designed to expand thinking about sentencing and develop strategies to persuade judges to impose fair sentences, even under the guidelines. Participants will have some required work prior to the workshop, including imposing sentence in cases provided to them. Attendance will be limited to 96 - mostly CJA panel attorneys and a few federal defender attorneys.

An application form is available HERE for your review.

In planning your travel, please note that the seminar will begin Friday, June 8, at 8:30 a.m. and will end Sunday, June 10, by 12:30 p.m.

Improvements to our site allow for easier access to the research material offered . The Slip Opinion database has been moved out of our secure area and no longer requires a username and password to access the database. Please give it a try by clicking on the 'Case Summaries' button on the menu at the left.

We have also removed the strict use of 'cookies' for user authentication. You will no longer be reminded that you have not registered for a password to access the secure areas of our site. When you click on a secure area you will be prompted for a username and password. To register, please click on the 'Request Password' button on the left menu. This eliminates the problems for people who have 'cookies' disabled and could not login to the secure areas.