• Professor Erwin Chemerinsky is the Dean of the University of California Irvine’s School of La and is an exceptionally well published author on the U.S. Constitution. He has published roughly ten articles on decisions from this year’s Court. His general summary is entitled “What we learned about SCOTUS this term” and does a nice job about discussing the political divides of the Court and the current ideological divide on the Court. This summary covers the University of Texas affirmative action case (Fisher v University of Texas), the dog sniff on the porch case (Florida v Jardines), the DNA collection case (Maryland v King), the marriage equality case (United States v Windsor and Hollingsworth v Perry), and the Voting Rights Case (Shelby County v Holder);

• Supreme Court Review is my find of the week. It is a website which tracks decisions of the US Supreme Court and which I will use as frequently as I use SCOTUS Blog. The site has a great media collection site, a nice section on court statistics, a great docket summary for the week, and more.

• Slate has a summary designed more for ordinary folks (and not lawyers) written by Emily Bazelon, a popular news writer and fellow at Yale Law School. Her summary “Supreme Court 2013: the Year in Review” covers the general ground covered by others. She makes several interesting points, however, including fight between Justices Roberts and Scalia in City of Arlington v FCC -- an obscure case dealing with the authority of the FCC to regulate the placement of cell towers. Justice Roberts used the ruling to challenge the expanding power of the FCC which is coming with our increased methods of communication. She also made an interesting point on the gene patenting decision fro the court. Justice Thomas (writing for the majority) drew a distinction between naturally occurring DNA and synthetic DNA. The problem is that the people in the biotech industry say that the distinction is “meaningless and anachronistic.”

Tags: Federal Courts, Rule 11, McCarthy, Davilla , 11th Circuit

Even under Wood’s reading of §2254(d)(2), the state court’s conclusion that his counsel made a strategic decision not to pursue or present evidence of his mental deficiencies was not an unreasonable determination of the facts in light of the evidence presented in the state-court proceedings. This Court need not reach the question whether §2254(e)(1) applies in every case presenting a challenge under §2254(d)(2), see Rice v. Collins, 546 U. S. 333, 339, because its view of the state court’s factual determination here does not depend on an interpretative difference regarding the relationship between those provisions. While “[t]he term ‘unreasonable’ is . . . difficult to define,” Williams v. Taylor, 529 U. S. 362, 410, it suffices to say that a state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance. See Rice, supra, at 341–342. Here, the state-court record shows that all of Wood’s counsel read the Kirkland report. Trotter testified that Dozier told him that nothing in the report merited further investigation, a recollection supported by the attorneys’ contemporaneous letters; and Trotter told the sentencing judge that counsel did not intend to introduce the report to the jury. This evidence can fairly be read to support the Rule 32 court’s factual determination that counsel’s failure to pursue or present evidence of Wood’s mental deficiencies was not mere oversight or neglect but the result of a deliberate decision to focus on other defenses. Most of the contrary evidence Wood highlights—e.g., that Dozier and Ralph put the inexperienced Trotter in charge of the penalty phase proceedings—speaks not to whether counsel made a strategic decision, but to whether counsel’s judgment was reasonable, a question not before this Court. Any evidence plausibly inconsistent with the strategic decision finding does not suffice to show that the finding was unreasonable. Pp. 8–12. Because Wood’s argument that the state court unreasonably applied Strickland in rejecting his ineffective-assistance claim on the merits is not “fairly included” in the questions presented under this Court’s Rule 14.1(a), it will not be addressed here. Pp. 12–13.

The U.S. Supreme Court granted certiorari today to hear Magwood v. Culliver, Supreme Court No. 09-158. The Court limited the cert granted to one question: "When a person is resentenced after having obtained federal habeas relief from an earlier sentence, is a claim in a federal habeas petition challenging that new sentencing judgment a “second or successive” claim under 28 U.S.C. § 2244(b) if the petitioner could have challenged his previous sentence on the same constitutional grounds?" A review of the Eleventh Circuit's ruling below shows that the issue may be a little more nuanced than the Statement of Questions presented. The Eleventh Circuit ruled that issues which arose at a resentencing could be challenged on a new habeas corpus without it being deemed sucessive, but that legal errors which could have been litigated in the first habeas corpus cannot be challenged even though the error was repeated at the second sentencing. The Eleventh Circuit overturned a grant of habeas corpus to the prisoner. The cert was granted to the prisoner. Here are links to the cert petition, the State's answer, and the Petitioner's reply.

Yesterday, the United States Supreme Court heard oral arguments in Graham v. Florida, No. 08-7412 and Sullivan v. Florida, 08-7621. In both cases, the Court juvenile offenders were given non-parolable life sentences. Several years ago, the high court struck down the death penalty for juvenile offenders taking notice of cognitive development and the fact that juveniles brains are not fully developed at the time. They neither fully appreciate the consequences of their actions or are as set in their ways as their adult counterparts.According to SCOTUS blog, the oral arguments look promising. Chief Justice Roberts took the lead in arguing that the sanction was too harsh. Stay tuned.

The U.S. Supreme Court made clear in a Nov. 9 per curiam opinion that the American Bar Association's Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases may not be treated as setting the standard of prevailing professional norms when a court is assessing a Sixth Amendment claim of ineffective assistance of counsel. The court reversed a grant of habeas corpus relief to an Ohio death-row inmate that was predicated on the circuit court's determination that counsel for the petitioner at his trial more than two decades ago failed to satisfy the 2003 ABA standards for uncovering and presenting mitigating evidence. Bobby v. Van Hook, U.S., No. 09-144, 11/9/09. The Legal Times Blog has a nice discussion on this ruling.

This past Wednesday, the U.S. Supreme Court heard oral arguments in Wood v. Allen, trying to come up with a working definition of AEDPA deference in habeas corpus cases.Petitioner’s trial teams had three attorneys (one of which had less experience than the others). This lawyer handled the penalty phase, during which he failed to present mitigation evidence, obtained from a competency evaluation, of Wood’s significant mental impairments. It is unclear from the oral arguments what standard the Court will ultimately adopt. It appears that he entire Court was very concerned about articulating a standard that would not further complicate habeas proceedings.  What standard they will ultimately choose, however, was in no way clear.

The United States Supreme Court has granted certiorari to hear two Michigan habeas corpus cases. In Berghuis v. Smith, the Sixth Circuit ruled that the Michigan Supreme Court acted contrary to clearly established United States Supreme Court law when it rejected a Sixth Amendment challenged the racial composition of Mr. Smith’s jury. The Sixth Circuit held that the jury did not reperesente a fair cross-section utilizing the comparative disparity test for evaluating the difference between the number of African-Americans in the community versus in the the jury selection panel. The United States Supreme Court has agreed to hear whether this ruling is erroneous. Berghuis v Smith, Supreme Court No. 08-1402. The case is currently scheduled for oral arguments on January 20, 2010.

In Berghuis v Thompkins, the Court has granted certiorari to determine whether the Sixth Circuit improperly expanded MIranda to prevent an officer from trying to persuade a defendant to cooperate where the officer tried to persuade the defendant to cooperate. The Defendant had been read his MIranda rights and had neither invoked them nor waived them. An ineffective assistance of counsel issue was also presented in the State’s petition for certiorari, but does not appear to be part of the order granting certiorari. An oral argument does not appear to be set in this case. Since cert was granted on the same day as Berghuis v Smith, orals will probably be in late January or early February.

This week the Court will hear oral arguments in Beard v. Kindler, Supreme Court No. 08-992. The issue is whether a partially enforced fugitive absconder rule constitutes adequate and independent grounds to justify Pennsylvania’s upholding of Joseph Kindler conviction. Mr. Kindler escaped twice from prison. A Pennsylvania state court held, and the state supreme court agreed, that Kindler waived his right to appeal when he fled. But the Third Circuit disagreed and affirmed the district court’s grant of habeas relief.In Beard, the Court will consider when state courts have resolved an inmate’s claims on “adequate grounds” such that federal courts may not review that inmate’s habeas claims. In particular, the Court will consider whether a state procedural default rule like Pennsylvania’s is “inadequate” solely because it is discretionary

This week, the Court will hear oral arguments in Wood v. Allen, Supreme Court No. 08-9156. At issue in Wood is whether counsel was ineffective by failing to investigate evidence of the Defendant’s mental impairments. The district court granted relief, concluding that a “finding by the state courts that a strategic decision was made not to investigate or introduce . . . evidence of mental retardation is an unreasonable determination of the facts in light of the clear and convincing evidence presented in the record.” The court found that Wood’s less experienced lawyer was left unsupervised to investigate mitigating evidence; moreover, the failure to introduce evidence of Wood’s mental impairments stemmed from his counsel’s inexperience rather than a strategic decision. The major issue in Wood is whether, the AEDPA (the law governing modern federal habeas corpuses) required the federal court to provide greater deference to the Alabama state court.

The Court, over the protests of two Justices, refused to answer a question sent to it by a federal appeals court, seeking clarification on when the federal government may prosecute a series of old civil rights crimes in the South, dating from the 1960s, even though four decades have now passed.  The case is a notorious one, involving the kidnapping and drowning murder of three young black youths in Meadville, Miss., in the spring of 1964.  Justice John Paul Stevens, joined by Justice Antonin Scalia, said the Court should have taken on the issue, noting that it is rare for a lower court even to ask for such clarification and suggesting that this was an appropriate case for the Justices to make use of that unusual procedure.  The case was U.S. v. Seale (certified question, docket 09-166).New York Criminal Attorney Neil Burney, California Attorney Zadek Shapiro and OSU Law Professor Douglas Berman have a nice discussion of this case on their respective blogs. (Updated November 4, 2009).

Yesterday’s Washington Post reported that an Iowa Prosecutor filed a brief in the United States Supreme Court arguing that the constitution does not prohibit framing an innocent man and that prosecutors should be immune from suits by the victim of such framing. Pottawatamie County v. McGhee, Supreme Court No. 08-1065.

United States v. O’Brien and Burgess, Supreme Court No. 08-1569 presents the question of whether the mandatory minimum sentence enhancement under 18 U.S.C. § 924(c)(1) to a 30-year minimum when the firearm is a machinegun is an element of the offense that must be charged and proved to a jury beyond under Apprendi. Professor Kevin Reitz has argued that this case may signify the end of the Harris rule in the Supreme Court. He wrote:

U.S. v. O’Brien gives the Court the chance to reconsider Harris v. U.S., 536 U.S. 545 (2002), which held that the Apprendi rule doesn’t attach to factfinding at sentencing that triggers a mandatory minimum sentence without increasing the available maximum penalty.  It would certainly be big news if the Court were to overrule Harris.  The Solicitor General’s office doesn’t expect this to happen (otherwise they wouldn’t have filed for cert).  Counting votes, however, it’s hard to call. 

Three dissenters in Harris remain on the Court: Stevens, Thomas, and Ginsburg.   Breyer’s concurring vote in Harris was wobbly — the rationale was that he could not “yet accept” the Apprendi rule.  If “yet” has now arrived, we may have four votes to overrule Harris.   Roberts, Alito, and Sotomayor are not clearly on record.  Sotomayor might well be a 5th vote?  Stare decisis counts for something here.  Harris reaffirmed an earlier case against a fully-developed Apprendi challenge, so a 180-degree turn in O’Brien would be dramatic.  Still, from a policy view, once Apprendi and Blakely and Booker are the law, it would be nice to eliminate Harris’s mandatory minimum end-run around those cases.

The Supreme Court has agreed to consider whether "gross negligence" by a state-appointed defense attorney in a death penalty case provides a basis for extending the time to file a federal habeas challenge, in a case where the habeas plea was filed late despite repeated instructions from the client.Mr. Holland, a prisoner on Florida's death row, filed a petition for a writ of habeas corpus in a Florida Federal District Court. The district court dismissed the petition as untimely because it was filed beyond the one-year statute of limitations period. On appeal, Holland argued that he was entitled to equitable tolling of the limitations period for filing his federal habeas petition because of egregious conduct by his counsel during his post-conviction proceedings.Last August, a three-judge panel on the 11th U.S. Circuit Court of Appeals released a per curiam opinion affirming the district court's rejection of an extension to file the challenge. Noting: "Petitioner has offered no reason to believe an evidentiary hearing would help him demonstrate the required extraordinary circumstances to warrant equitable tolling," the appeals court held that: “"no allegation of lawyer negligence or of failure to meet a lawyer's standard of care -- in the absence of an allegation and proof of bad faith, dishonesty, divided loyalty, mental impairment, or so forth on the lawyer's part -- can rise to egregious attorney misconduct that would entitle the Petitioner to equitable tolling" under the AEDPA.”On Oct. 13, the Supreme Court agreed to review the case. Oral arguments are expected to be scheduled for some time early next year . The questions presented include: Whether "gross negligence" by a state-appointed defense attorney in a death penalty case provides a basis for extending the time to file a federal habeas challenge, in a case where the habeas plea was filed late despite repeated instructions from the client. Holland v Florida, Supreme Court No. 09-5327. To read the cert petition, click here. (Updated November 4th).

SCOTUS Blog notes that Chief Justice John G. Roberts, Jr., on Friday cleared the way for the filing in November of a new Guantanamo Bay detainee case, further testing the power of federal judges to weigh or limit transfers of prisoners from that U.S. military prison. The new case is now due to be filed by Nov. 10 in the case of Kiyemba v. Obama — the same title, though with somewhat different issues, as the case the Court on Oct. 20 agreed to hear in docket 08-1234.These cases will explore the limits of last year’s ruling in Boumediene v. Bush, which confirmed a constitutional right for Guantanamo prisoners to challenge their continued detention.

In 1972, the United States Supreme Court stated that twelve person juries in state criminal trials could reach a non-unanimous vote, (e.g. 10-2 for conviction or acquittal). In Bowen v Oregon, the Petitioner is asking the U.S. Supreme Court to reconsider its prior ruling based on later court decisions holding the Sixth Amendment in line with the original purpose. Mr. Bowen has enlisted some powerful allies and the New York Times thinks Mr. Bowen has a chance. Stay tuned!

The State of Michigan has sought certiorari from the Michigan Supreme Court’s recent 4-3 favorable Crawford in People v Bryant, 483 Mich 132; 768 NW2d 65 (2009). Michigan v Bryant, 8 USLW 3082 (Jul 28, 2009). The key question is whether the victim’s statement was testimonial under Crawford.The majority stated that the key question is whether the declarant intended the statement to be testimonial; the dissent stated that the focus should be on the officer’s intent. The majoirty also stated that the emergency exception must be narrowly construed lest "statements reporting criminal activity or accusing others of crimes . . . always be testimonial until a suspect was in custody and unable to cause further harm."And the court refused to treat the fact of the victim's condition as creating an emergency for Confrontation Clause purposes; that, it said, would confuse "a medical emergency with the emergency circumstances of an ongoing criminal episode."

In the last of three plenary cases decided yesterday, the Court ruled that it is unconstitutional for a state to bar all damage lawsuits brought under federal civil rights law against prison officers or guards, allowing instead only a claim against the state itself in a special claims court.  Justice Stevens wrote for a 5-4 majority striking down a New York law as a violation of the Constitution’s Supremacy Clause. Haywood v. Drown, SCOTUS No. 07-10374.

This morning, President Obama nominated Sonia Sotomayor, a federal appeals court judge in New York, as his nominee for the Supreme Court. Click here to read the New York Times story. It is unclear whether the Republicans will fight this nomination or not. Many fear that that fighting the nomination of the first Hispanic to the United States Supreme Court will harm the G.O.P. with the Hispanic community. To read President Obama’s remarks, click here

Today in Montejo v. Louisiana, SCOTUS No. 07-1529, the Court overruled the Court’s prior ruling in Michigan v. Jackson, 475 U.S. 625 (1986). Jackson held that a request for counsel made in the courtroom extended to the police. Montejo seems to reject this notion and say that the police are free to try and interrogate a represented defendant and that a Miranda warning should be sufficient. Counsel are well advised to create a new form that they serve on all police department (signed by the defendant as well) notifying them that the defendant is represented, is invoking his Sixth and Fifth Amendment rights to counsel, and that any requests to communicate to the defendant whatsoever should be directed Click here to read the Associated Press discussion of this case.

Until very recently, the United States Supreme Court had been engaged in a pattern of reducing the amount of privacy that an individual had in a motor vehicle to practically nil. Because of the inherent mobility in most vehicles, the Court declared that the warrant requirement did not apply to a motor vehicle. The Court extended this rationale to discrete items in a motor vehicle such as purses in brief cases. In New York v Belton, the high court extended the protective sweep rationale of its earlier ruling in Terry v Ohio to the motor vehicle. Any place a motorist or passenger could theoretically lunge for a weapon could be searched with this protective sweep, even if the motorist or passenger had been separated from the vehicle.. In Arizona v Gant, the Court overturned Belton in a 4-1-4 decision with Justice Scalia offering a critical view of the entire “officer safety rationale” used to justify these warrantless searches. Arizona v. Gant, 07-542.Dividing 5-4, the Supreme Court ruled on Tuesday that police may conduct a warrantless vehicle search incident to an arrest only if the arrestee is within reaching distance of the vehicle or the officers have reasonable belief that “evidence of the offense of arrest might be found in the vehicle.”The ruling directly limits New York v. Belton,. In Belton, the Court held that “when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident to that arrest, search the passenger compartment.” The Court affirmed the Arizona Supreme Court ruling for the defendant, Rodney Gant, on whom police found cocaine during an arrest for driving with a suspended license. The state court held that Gant could not have reached his car during the search and posed no safety threat to the officers, making a vehicle search unreasonable under the “reaching-distance rule.” applied in Belton.Justice Stevens’s opinion for the majority, which was joined by an uncommon coalition of Justices Ruth Bader Ginsburg, David H. Souter, Clarence Thomas, and Antonin Scalia, held that stare decisis cannot justify unconstitutional police practice, especially in a case — such as this one — that can clearly be distinguished on its facts from Belton and its progeny.In a concurring opinion, Justice Scalia disparaged that line of cases as “badly reasoned” with a “fanciful reliance” upon the officer safety rule. Justice Scalia was clearly the swing vote in the case, explaining that a “4-to-1-to-4 opinion that leaves the governing rule uncertain” would be “unacceptable.” In his view, the “charade of officer safety” in Belton, Chimel, and Thornton v. United States (extending Belton to all “recent occupants” of a vehicle) should be abandoned in favor of the rule that the majority ultimately adopts in its opinion.By contrast, the dissenting justices — Justice Breyer, who wrote his own dissenting opinion, and Justice Alito, whose dissent was joined by the Chief Justice and Justice Anthony M. Kennedy and was joined in part by Justice Breyer — would have adhered rigorously to stare decisis principles to maintain Belton’s “bright-line rule.” The dissenters predicted that the Court’s decision will lead to the unnecessary suppression of evidence and confusion by law enforcement officers.

Statements taken in violation of the Sixth Amendment right to counsel are inadmissible as part of the state’s substantive case against an accused, but should they be admissibile for impeachment purposes. The Court had previously ruled that statements taken in violation of the Fifth Amendment right to remain silent could be admitted at trial. Unfortunately, the Court recently extended this to include statements taken in violation of the Sixth Amendment. Kansas v Vetris, SCOTUS No. 07-1356 For a detailed criticism of the court’s ruling, check out Professor Mark Godsey’s blog here and here.

The federal statute, 28 USC 2253, that requires state prisoners to obtain a certificate of appealability before challenging a district court ruling in habeas corpus proceedings does not apply to appeals of orders denying requests for federally appointed counsel. The statute governs only final orders that dispose of a habeas corpus proceeding's merits. Federally appointed counsel are authorized to represent clients in state clemency proceedings and are entitled to compensation for that representation. Harbison v Bell, SCOTUS No 07-8521.

On the heels of MIranda v Arizona, 384 US 436 (1966), Congress passed 18 USC 350. This law states that the voluntariness of a suspect's statements is the sole determinant of their admissibility in federal court. The purpose of the rule was to overrule Miranda v Arizona, 384 US 436 (1966). The question presented in COrley was whether the law modified the McNabb-Mallory (McNabb v United States, 318 US 332 (1943) and Mallory v United States, 354 US 449 (1957)) which barred the admission of an arrestee's confession given after an unreasonable delay in bringing him before a judge. The high Court ruled that the statute merely guarantees the admission of voluntary statements made within six hours of a suspects' arrest. Without the McNabb-Mallory rule, federal agents would be free to question suspects for extended periods before bringing them out in the open, “and we have always known what custodial secrecy leads to.” Corley v United States, SCOTUS No. 07-10441.

Several federal circuits have adopted what has come to be called a consent-once-removed exception to the Fourth Amendment’s warrant requirement. The theory is that a suspect who consents to the entry of someone who is really an agent of the police is also, albeit unknowingly, agreeing to let the police enter as well. The police do not need a warrant to enter and search a home if they have the permission of a person authorized to give it.