Friedman Legal Solutions, PLLC

Criminal Appellate & Post-Conviction Services

SCOTUS Says Pro Se Litigants Can't Litigate Their Own Cases

Codifying what has been the practice for a number of years, the United States Supreme Court has said that a pro se litigant cannot argue their own case in front of the Supreme Court. Pro se litigation is constitutionally protected at the trial court, but courts have not completely extended the right on appeal. In the US Supreme Court, the theory is that the because the question before the Court is of national significance and it cannot be presumed that a pro se litigant can adequately protect the rights of others. Click here to read Joe Patrice from Above the Law’s blog on this practice.

SCOTUS Hearings Argument Concerning Government's Large Scale Wiretapping

Lyle Denniston over at SCOTUS Blog has an interesting article on Monday’s oral arguments in Clapper v Amnesty International, Supreme Court No. 11-1025. Clapper is a challenge to the Government’s very broad wiretapping operations that they are carrying out in the name of terrorism prevention. The Government has been successfully defending these suits by arguing that the people bringing suit can’t prove they were the victims of illegal eavesdropping and therefore the suits shouldn’t go forward. In one case where the Government accidentally admitted the eavesdropping, they were able to claw evidence back stating the attorney could not use the evidence accidentally released. Al Haramain Islamic Foundation, Inc. v. U.S. Dept. of the Treasury, 660 F.3d 1019 (9th Cir. 2011). Here is another interesting article covering this case and the history of the line of litigation generally.

SCOTUS to Decide Whether There is an "Actual Innocence" to AEDPA's Statute of Limitations

While the rest of Washington braces for Hurricane Sandy, the Supreme Court was in full session. They granted four petitions today including MaQuiggin v Perkins, Supreme Court No. 12-126. The petition comes from Michigan and is being pursued by Michigan Deputy Solicitor B. “Eric” Restuccia. Stay tuned.

Also relevant to the criminal practitioner is the Court’s cert. grant in Travino v Thaler dealing with the limits of the Court’s ruling last term in Martinez v Ryan. The
divided Fifth Circuit decision shows a pretty disturbing Brady suppression of evidence. The State hid a statement by completely exculpating the Defendant. I will post more on this case shortly.

US Supreme Court to Decide Major Immigration Question - Updated

On Wednesday, the high court is deciding whether a Georgia man should be deported to his native Jamaica for having 1.4 grams of marijuana and sharing it without renumeration (e.g. sharing a joint with a friend). Read More...

Supreme Court Refuses to Extend Protections on Suggestive Eye Witness Identification

The United States Court of Appeals for the Tenth Circuit struck down an Albuquerque, New Mexico policy which attempted to ban convicted sex offenders from their libraries. In 2008 then Mayor Martin Chavez, ordered city libraries to send letters to registered sex offenders holding library cards to tell them they were no longer allowed in libraries. Doe v City of Albuquerque, Tenth Circuit Court of Appeals, No. 10-2102

The policy was challenged by the American Civil Liberties Union (ACLU) on behalf of a sex offender who until the mayor's action frequently used the city's libraries to check out materials and attended lectures and meetings there.
The Court upheld the lower court’s injunction noting that: “The First Amendment includes a fundamental right to receive information," a three-judge panel of the Court\ wrote. "By prohibiting registered sex offenders from accessing ... public libraries, the city's ban precludes these individuals from exercising this right in a particular government forum," the court said.

But the panel left open the possibility of allowing restrictions less stringent than an outright ban. "We therefore are especially mindful that registered sex offenders, whom studies have confirmed have a considerable rate of recidivism, may threaten to shatter the peace and safety of this environment."

However, the judges said city officials failed to look at other less restrictive approaches, including designating certain hours for sex offenders, requiring them to check in with library staff or restricting areas of the library that they could use.

Albuquerque Assistant City Attorney Gregory Wheeler said the city had adopted a less restrictive policy following the district court's ruling, so Friday's decision will have little immediate impact. Nevertheless, the city is analyzing the ruling to decide whether to appeal to the U.S. Supreme Court, he said, adding, "We are always looking for ways to provide more protection." Peter Simonson, executive director of the ACLU of New Mexico, hailed the ruling.

Great Brady Decision from SCOTUS

The Supreme Court has declined to extend constitutional safeguards against the use of some eyewitness testimony at criminal trials, ruling against a New Hampshire man who was convicted of theft. Perry v. New Hampshire, 10-8974.

The court voted 8-1 Wednesday to turn away Barion Perry's claim that courts should be able to exclude eyewitness testimony when identifications are made under suggestive circumstances, even when there is no evidence of manipulation by the police. Judges can already can bar testimony when the police do something to influence a witness to identify a suspect.

Justice Ruth Bader Ginsburg said in her opinion for the court that in cases with no police misconduct, juries can weigh the reliability of eyewitness testimony. Justice Sonia Sotomayor wrote a dissenting opinion. The decision may not be as awful as many members of the criminal bar first thought. While the Court refuses to move the due process clause to follow the science of bad eye witness identification, it does so only based on the notion of the lack of state action in that case. In cases involving state actors there is a little more hope. On p. 9, n. 5, the majority restates the 20 year old Neil/Manson factors. The good news is that it lists the five factors is non-exclusive. The Court makes it clear that the five traditional factors are among the 'factors to be considered.’” This seems to suggests that could could ask a Court to consider many more factors, such as the laundry list stated by other courts, particularly the recent decision of the New Jersey Supreme Court. The bad news is that the Court fails to address the scientific criticisms of the Manson factors, which the State is likely to read as implicitly reaffirming them. This was a lost opportunity to fix binding federal precedent which is unarguably scientifically flawed -- the states can follow Henderson and ditch the test as a matter of state constitutional law. Still, the Court ignored forty-five years of scientific research on the subject and that is troubling.

SCOTUS & the Art of Stealth Overruling of Prior Decisions

Professor Barry Friedman (no relation) has an interesting article (The Wages of Stealth Overruling) in the Georgetown Law Review on the US Supreme Court’s backing away from its prior rulings without officially overruling the same. Professor Friedman is particularly critical of the practice. He thinks that the Court does this to avoid criticisms about failing to adhere to past precedent of the Court. He further thinks the Court does it to evade negative public opinion.

Troy Davis Case is Back Before SCOTUS. Is Convicting the Innocent a Self-Standing Constitutional Violation?

Thus far, the United States Supreme Court has not definitively answered the question of whether convicting an innocent individual is a constitutional violation. The widely covered Troy Davis dispute may finally force the Court to decide this question. A comprehensive analysis of the case can be found in this SCOTUS Blog article. Mr. Davis has been sentenced to death for killing a police officer. Many people believe Mr. Davis is innocent, but the evidence establishing his innocence has come very late in the proceedings and the case has numerous procedural problems. Time Magazine and many others thinking that Mr. Davis is innocent, but this case involves a cop killing and is highly politically charged. Last year, the United States Supreme Court granted Mr. Davis an unprecedented evidentiary hearing on actual innocence. The Court gave him the hearing, but denied his claim. Mr. Davis’s lawyers are back before the Supreme Court with three challenges including an original action for habeas corpus.

SCOTUS to Hear Michigan Miranda Case

The United Supreme Court has granted certiorari to hear whether police investigators must give a jail inmate his Miranda rights before questioning him on matters unrelated to what landed him behind bars. Howes v. Fields, 10-680. A great summary of the dispute can be found here.

On Monday , the justices said they will hear the Michigan Attorney General’s challenge to a federal court of appeals in favor of Randall Fields. Mr. Fields acknowledged to sheriff’s deputies that he had sexual contact with a minor. The admission took place during an interview in the same building where Fields was jailed on unrelated charges. The deputies never advised Fields he could be silent or have a lawyer, hallmarks of the Miranda warning for criminal suspects. They did tell him he could leave the interrogation room when he wanted.

SCOTUS Reverses a Second IAC Ruling Based on AEDPA Deference

Today the United States Supreme Court reversed the second habeas corpus grant within a week. In Wood v. Allen, Supreme Court No. 08-9156, the Court held:

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 opinion was authored by Justice Sotomayer. Justice Stevens and Kennedy dissented. Read More...

SCOTUS Reverses Sixth Circuit Ruling on Ineffective Assistance Based on AEDPA Deference

On January 12, the Court issued its decision in Smith v. Spisak, No. 08-724. Justice Breyer wrote the opinion, which seven other Justices joined in full; Justice Stevens concurred in part and concurred in the judgment. Reversing the Sixth Circuit, the Court held that Ohio’s denial of Spisak’s underlying criminal appeal was reasonable. In the habeas corpus action, Spisak argued that (1) the jury instructions used at his trial unconstitutionally required the jury to consider mitigating factors only if the existence of each factor was unanimously found; and (2) his attorney was constitutionally ineffective, particularly during his closing argument – was not contrary to, or an unreasonable application of, clearly established federal law. As previously noted on this blog, the Supreme Court has taken a number of Michigan habeas corpus cases involving AEDPA deference including Berghuis v Smith (to be argued in two days). Many have wondered whether the Supreme Court has taken these cases to sending a warning to the Sixth Circuit Court about the probing level of its rulings. Justice Breyer’s authorship of the Court’s opinion is a tad disconcerting. Stay Tuned.

SCOTUS Peremptorily Reverses a Habeas IAC Holding

In Wong v. Belemontes, Supreme Court No. 08-1263, the Court summarily reversed the grant of a habeas corpus to a death penalty prisoner based on ineffective assistance of counsel in the sentencing phase. The issue in the case was whether capital trial counsel failed to present sufficient mitigation evidence at the capital sentencing phase. The ruling appears very limited. Reading the Court's opinion, the Court seems to say that a jury would probably have given the prisoner the death penalty even if all the evidence had been presented.