SCOTUS Round-Up:  Summary of Criminal Law Cases from the Last Term

I originally created this summary for the magazine Florida Postconviction Legal Perspecties; unfortunately, I do not believe the magazine has published an issue this year.

DUE PROCESS: APPRENDI

In Alleyne v. United States, No. 11-9335 (June 17, 2013), the Court took up the issue of whether a jury verdict form must specify that a firearm was “brandished” to support a seven-year mandatory minimum sentence under 18 U.S.C. 924(c)(1)(A)(i). Although the defendant faced a maximum sentence of life regardless of the minimum, the 5-4 Court overruled Harris v. United States, 536 U.S. 545 (2002) (limiting Apprendi to facts that increase the statutory maximum) to hold that any fact increasing the minimum (or maximum) sentence is an element of the crime, and must therefore be found by a jury rather than a judge under Apprendi v. New Jersey, 530 U.S. 466 (2000) and its progeny. The dissenters reasoned that no violation occurred because the jury’s verdict had authorized the judge to impose the precise sentence he did impose, for the precise reasons he offered.

EX POST FACTO: BOOKER

Peugh v. United States, No. 12-62, held that the ex post facto clause prohibits federal courts from applying at sentencing U.S. Sentencing Guidelines that are more punitive than those in effect at the time the offense was committed. is particularly interesting because it draws on social science that shows the influence of the sentencing guidelines remains strong even in the post-Booker advisory guidelines regime. You have to think that this was still on the Justices' minds when they decided Alleyne.

FEDERAL HABEAS CASES

In Johnson v. Williamside, No. 11-465, the Court (in a rare unanimous decision) closed the door to review for claims that state courts did not appear to address in the opinion. Bottom line: if a state PCR court fails to address a federal claim raised in a PCR motion, a rebuttable presumption exists that the state court considered the issue on the merits. If the state court were deemed not to have issued an opinion on the merits, Ms. Williams’s federal habeas claims would not have been subject to the deferential standard of review in 28 U.S.C. § 2254(d). The Court explained that “it is not the uniform practice of busy state courts to discuss separately every single claim to which a defendant makes even a passing reference.” Examples given include “circumstances in which a line of state precedent is viewed as fully incorporating a related federal constitutional right,” cases when the “state court may not regard a fleeting reference to a provision of the Federal Constitution or federal precedent as sufficient to raise a separate federal claim,” and “instances in which a state court may simply regard a claim as too insubstantial to merit discussion.”

In Ryan v. Gonzales, No. 10-930, the Court (in another unanimous decision) held that “[n]o federal law . . . gives an incompetent state prisoner any right to keep a habeas case on hold until he can regain mental understanding of what is going on. The habeas case can go ahead with just the lawyers involved....”1 In what will come as a surprise to some of you, “‘Attorneys,’ the Court said, ‘are quite capable of reviewing the state-court record, identifying legal errors, and marshaling relevant arguments, even without their clients’ assistance.’” The Court reversed the Ninth Circuit’s cases holding that a stay under 18 U.S.C. § 3599(a)(2) mustmay issue whenever a petitioner is adjudged incompetent, along with the Sixth Circuit’s holding that the same right arose from § 4241. However, the Court also held that district courts stay a case when “the petitioner’s claim could substantially benefit from the petitioner’s assistance,” but that the district court should also “take into account the likelihood that the petitioner will regain competence in the foreseeable future. When there is no reasonable hope of competence, a stay is inappropriate and merely frustrates the State’s attempts to defend its presumptively valid judgment.”

PCR movants/petitioners were not so lucky. In Chaidez v. United States, the Court held that Padilla v. Kentucky (collateral consequences – immigration) does not apply retroactively to cases already final on direct review. Ms. Chaidez, who had been released and was challenging her conviction via the relatively obscure petition for a writ of coram nobis, was out of luck because Padilla was a new rule that was not “a watershed rule of criminal procedure” under Teague and progeny. Although the dissenters though the rule to be a relatively straightforward application of Strickland that was not a new rule, the majority pointed to the overwhelming weight of contrary authority when Padilla was decided, as well as the fact that Padilla dealt with the question of whether the Sixth Amendment even applied to collateral consequences, not merely what counsel’s duty was in an area already recognized to be within the sphere of an attorney’s responsibilities.

And in another decision on retroactivity – this one unanimous – the Court in Metrish v. Lancaster decided that the Michigan Court of Appeals did not unreasonably apply clearly established federal law when it applied an adverse decision retroactively.

Trevino v. Thaler, No. 11-10189, held that Martinez applied in Texas, where a very small class of ineffective assistance claims can be brought on direct appeal in addition to postconviction review. For Florida prisoners, I think the take-home will be that you can get the benefit of Martinez if your attorney rendered ineffective assistance in connection with a plea agreement but you did not file a motion to withdraw your plea under Rule 3.170.

In McQuiggin v. Perkins, the Court held that, in proceedings under 28 U.S.C. 2254, the actual innocence exception (to procedural default [by caselaw] and to the rule on second/successive petitions [by statute]) also applies to the statue of limitations in 28 U.S.C. 2241. Now, defendants who can actually meet the extremely stringent standard for a showing of actual innocence (see House v. Bell, 547 U.S. 518 (2006) for an illustration) should be able to bring their constitutional claims in federal court.

In the per curiam decision in Marshall v. Rodgers, No. 12-382 (April 1, 2013), the Court reversed the Ninth Circuit’s grant of habeas relief, finding that the Court’s decisions did not clearly establish that the defendant was entitled to the assistance of counsel where he had thrice invoked his right to self-representation under Faretta during the trial but was denied appointed counsel to prepare a motion for a new trial. According to the Court, the Ninth Circuit erred by looking to its own decisions as well as Supreme Court precedent in determining whether a right was clearly established for the purposes of Section 2254(d).

The Ninth Circuit earned another per curiam reversal in Nevada v. Jackson, No. 12-694, where the court held that habeas relief was not available because the Court had never held that the Confrontation Clause guaranteed the right to present extrinsic impeachment evidence.

FOURTH AMENDMENT CASES

The Court split 5-4 on the Fourth Amendment issue in Florida v. Jardines. Good win by Howard Blumberg, Assistant Public Defender out of the Miami PD’s office. Interestingly, here the State was appealing the decision of the Florida Supreme Court. Justice Scalia wrote for the majority, holding that a drug-dog sniff of a front door was a search for Fourth Amendment purposes because “[t]he officers were gathering . . . in the curtilage of the house, which we have held enjoys protection as part of the home itself.” Because the officers “gathered that information by physically entering and occupying the area,” Justice Scalia felt it was open and shut. Justices Kagan, Ginsburg, and Sotomayor also issued a concurring opinion explaining that in their view, the analogy of high-powered binoculars better defined the right invaded here. The dissenters (Alito, Roberts, Kennedy, and Breyer) felt that no expectation of privacy existed because the common law “gives members of the public a license to use a walkway to approach the front door of a house and to remain there for a brief time.”

Justice Kagan authored the other opinion to come via cert. directly from the Florida Supreme Court, a unanimous decision in which the State unfortunately got the win. Many will be sad to see the end of Florida’s extremely defendant-friendly standard for establishing that a police dog has been properly trained. In Florida v. Harris, No. 11-817, the Court found that “probable cause,” for the purposes of the Fourth Amendment of the U.S. Constitution, did not require the State to show that a given drug dog met the Florida Supreme Court’s “strict evidentiary checklist to assess a drug-detection dog’s reliability.” However, the Court did hold that defendants deserve an opportunity to contest “whether all the facts surrounding a dog’s alert, viewed through the lens of common sense, would make a reasonably prudent person think that a search would reveal contraband or evidence of a crime.” If you’re thinking of arguing that the Florida Constitution provides more protection, you have an uphill battle. Section 12of Article I provides that “[t]his right shall be construed in conformity with the 4th Amendment to the United States Constitution, as interpreted by the United States Supreme Court.” My advice is to argue that in the context of the following sentence, the preceding quote expresses an intent to let SCOTUS set a floor, not a ceiling: “Articles or information obtained in violation of this right shall not be admissible in evidence if such articles or information would be inadmissible under decisions of the United States Supreme Court construing the 4th Amendment to the United States Constitution.”

In another Fourth Amendment case, the Supreme Court decided to go with a bright-line rule rather than a balancing test. In Bailey v. United States, 133 S. Ct. 1031, 185 L. Ed. 19 (2013), the Court held that the rule in Summers2 extends only to the immediate vicinity of the premises being searched, and did not cover situations like those of Mr. Bailey, who was stopped a mile from his apartment after being observed leaving the common area of the building while detectives prepared to execute a search warrant. The Court found that three relevant interests in Summers (officer safety, completing the search, and preventing flight) did not apply in Mr. Bailey’s case, and limited the detention-incident-to-search rule to cases where “an occupant poses a real threat to the safe and efficient execution of a search warrant.” 133 S.Ct. at 1042.

Justice Sotomayor wrote for the Court in Missouri v. McNeely, 133 S. Ct. 1552 (2013), holding that the natural dissipation of blood alcohol did not constitute exigent circumstances that justified a warrantless search of an individual – here, an involuntary blood test. The Court affirmed the decision of the Missouri Supreme Court, which found that the trial court had correctly suppressed the results of Mr. McNeely’s nonconsensual blood test.

In Maryland v. King, No. 12-207, the Court held that officers making a valid arrest for a serious offense may take a DNA cheek swab. The Court explained that the DNA test “is, like fingerprinting, a legitimate police booking procedure that is reasonable under the Fourth Amendment.”

FIFTH AMENDMENT

Does the Fifth Amendment prohibit the prosecution from commenting at trial on the fact that a defendant would not answer the question “Will ballistics testing match your shotgun to the shells we found” during a voluntary interview at a police station? The Supreme Court answered with a “no” in the 5-4 decision Salinas v. Texas, No. 12-246 (June 17, 2013). The Court found that when a defendant is not on trial or undergoing a custodial interrogation, he must explicitly invoke the Fifth Amendment to receive its protection. Here, where the defendant was not in custody and did not “take the Fifth” in response to the question, no violation occurs. Thus, the Supreme Court affirmed the Texas court’s decision that the defendant’s rights were not violated when the prosecutor argued to the jury that “an innocent person would have said ‘What are you talking about? I didn’t do that. I wasn’t there.’” Justices Scalia and Thomas would have gone further; their concurring opinion explains that in their view the defendant would not be protected even if he had explicitly “taken the Fifth” during the interview because the prosecutor’s comments “did not compel [the defendant] to give self-incriminating testimony.” The two justices felt that Griffin v. California, 370 U.S. 609 (1965) (prohibiting prosecutors and judges from commenting on a failure to testify) was wrongly decided; as a decision that “lack[ed] foundation in the Constitution’s text, history, or logic,” it should not be extended to cover out-of-court silence.

FEDERAL CRIMINAL LAW

In keeping with the general idea of affirmative defenses, the Court decided in Smith v. United States, No. 11-8976, that federal defendants bear the burden of proving that they have withdrawn from a conspiracy (after the elements of the offense are proven). The Court affirmed the D.C. Circuit’s holding that the burden allocation did not constitute unconstitutional burden shifting.

Henderson v. U.S., No. 11-9307, decided the issue of by what law federal courts of appeal are to judge whether unpreserved error is “plain” under Rule 52(b) of the Federal Rules of Civil Procedure. Justice Breyer and five other judges wrote that errors may be corrected even when the error only becomes “plain” during the course of appellate review. Thus, federal defendants should get the benefit of favorable cases decided after conviction or sentencing, but before the conclusion of direct review. Henderson got a resentencing based on Tapia v. United States, 564 U.S. ___, in which the Court held that federal courts commit error when they “impose or lengthen a prison sentence to enable an offender to complete a treatment program or otherwise to promote rehabilitation.”

What is a term of the Court without an Armed Career Criminal case? In Descamps v. United States, the Court will determine whether federal sentencing courts may consider at the facts underlying a State burglary conviction (as opposed to only the statutory definition of the offense) when determining whether the conviction is a predicate offense, where state law does not require an element of the federal crime of burglary. Justice Kagan observed at oral argument that “there [was] something a little bit insane” in the defendant’s argument that “everybody who’s convicted of burglary in [California] is not going to have committed an ACCA offense [because they entered the structure only with intent to shoplift], even though, as Justice Breyer suggested, 98 percent of them really have [based on the facts of their case].”

IMMIGRATION

In the immigration decision Moncrieffe v. Holder, No. 11-702, the Court defined “aggravated felony” (for the purposes of deportation only) to exclude simple possession of small amounts of marijuana. Mr. Moncrieffe, a legally resident noncitizen, was found with 1.3 grams of marijuana during a 2007 traffic stop, a quantity the Court described as enough for “two or three marijuana cigarettes.” The court explained that “social sharing of a small amount of marijuana” does not equal “drug trafficking” under 8 U.S.C. § 1101.

1This quote comes from Lyle Denniston, a commenter on SCOTUSblog.com. The article is available at http://www.scotusblog.com/?p=157340.

2Michigan v. Summers, 452 U.S. 692 () (holding that police may detain a suspect incident to the execution of a search warrant

© Gray Proctor 2016