Criminal Law Library Blog

A Service from the ABA Criminal Justice Section, http://www.abanet.org/crimjust

The U.S. Supreme Court has ruled against a defendant convicted of the rape of a 9-year-old girl after a night of heavy drinking.

The Supreme Court said in a per curiam opinion that overstated estimates of a DNA match at trial did not warrant reversal of a conviction when there is still “convincing evidence of guilt.”

The defendant, Troy Brown, had alleged on appeal that the state mischaracterized the probability that his DNA matched that of someone in the general population. He also claimed that a prosecution expert had misstated the chances of a DNA match between himself and his two brothers. All three lived near the victim.

“DNA evidence remains powerful inculpatory evidence even though the state concedes [its expert] overstated its probative value,” the Supreme Court wrote in McDaniel v. Brown.

The court remanded for consideration of Brown’s claims of ineffective assistance.

The court had granted cert in the case last January, SCOTUSblog reports. Oral arguments set for October were later canceled by the court.

According to SCOTUSblog, the decision was “based mainly on a legal ground that neither side in the case believed remained in issue—the sufficiency of the DNA evidence, under Jackson v. Virginia.”

According to the opinion, the court had granted cert to consider two issues: the proper standard of review for a Jackson claim, and whether such a claim may rely upon evidence outside the trial record that goes to the reliability of trial evidence.

http://www.abajournal.com/news/article/misstated_dna_probabilities_not_ground_for_reversal_high_court_says/

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CRIMINAL LAW & PROCEDURE, EVIDENCE, HABEAS CORPUS, PER CURIAM
McDaniel v. Brown, No. 08-559
In habeas proceedings arising from a rape conviction, a circuit court of appeals' order affirming the grant of petitioner's habeas petition is reversed and remanded where: 1) the court of appeals' analysis failed to preserve the factfinder's role as weigher of the evidence by reviewing all of the evidence in the light most favorable to the prosecution, and it erred in finding a state court's resolution of petitioner's claim to be objectively unreasonable; and 2) petitioner forfeited his claim that a prosecution expert incorrectly described the statistical implications of certain DNA evidence.

CRIMINAL LAW & PROCEDURE, HABEAS CORPUS, SENTENCING
Smith v. Spisak, No. 08–724
In capital habeas proceedings, a grant of petitioner's habeas petition is reversed where a state court's rejection of claimed errors regarding jury instructions and verdict forms, as well as ineffective assistance of counsel, was not contrary to, or an unreasonable application of, clearly established federal law as: 1) the jury instructions and forms in the penalty phase made clear that, to recommend a death sentence, the jury had to find unanimously that each of the aggravating factors outweighed any mitigating circumstances, but they did not say that the jury had to determine the existence of each individual mitigating factor unanimously; and 2) even assuming that defense counsel's closing argument was inadequate in the respects claimed by petitioner, there was no reasonable probability that a better closing argument without such defects would have made a significant difference.

ADMINISTRATIVE LAW, CONTRACTS, GOVERNMENT LAW, PUBLIC UTILITIES
NRG Power Mktg., LLC v. Maine Pub. Utils. Comm., No. 08–674
In a petition for review of the Federal Energy Regulatory Commission's (FERC) approval of a settlement agreement establishing rate-setting mechanisms for the sale of energy capacity in the New England region, circuit court's partial grant of the petition is reversed where: 1) the Mobile-Sierra presumption does not depend on the identity of the complainant who seeks FERC investigation, and the presumption is not limited to challenges to contract rates brought by contracting parties; and 2) contrary to the ruling below, the Mobile-Sierra presumption applies when a rate challenge is brought by a non-contracting third party

ADMINISTRATIVE LAW, IMMIGRATION LAW
Kucana v. Holder, No. 08–911
In a petition for review of the BIA's denial of petitioner's motion to reopen his removal proceedings, the court of appeals' denial of the petition is reversed where 8 U.S.C. section 1252(a)(2)(B)'s proscription of judicial review applies only to Attorney General determinations made discretionary by statute, not to determinations declared discretionary by the Attorney General himself through regulation. .

Related Resources
• Docket for the Case

CIVIL PROCEDURE, GOVERNMENT LAW, WATER LAW
S. Carolina v. N. Carolina, No. 138
In an original jurisdiction action by South Carolina seeking an equitable apportionment with North Carolina of the Catawba River's waters, the special master's grant of three nonparties' motions to intervene is affirmed in part as to two of them where: 1) the Catawba River Water Supply Project was properly permitted to intervene because it showed a compelling interest in protecting the viability of its operations, which were premised on a fine balance between the joint venture's two participating counties; and 2) Duke Energy was also properly allowed to intervene because it was likely that any equitable apportionment of the river would need to take into account the amount of water that Duke Energy needed to sustain its operations. However, the order is reversed in part where the interest of Charlotte, North Carolina was not sufficiently unique and would be properly represented by North Carolina.

CONSTITUTIONAL LAW, ELECTIONS
Citizens United v. FEC, No. 08–205
The Court rules that the government may regulate corporate political speech through disclaimer and disclosure requirements, but it may not suppress that speech altogether. Specifically, in an action brought by a nonprofit corporation, the makers of a documentary critical of Hillary Clinton's presidential candidacy, challenging the constitutionality of a federal law prohibiting corporations and unions from using their general treasury funds to make independent expenditures for speech that was an "electioneering communication" or for speech that expressly advocated the election or defeat of a candidate, a denial of a preliminary injunction for plaintiff is reversed in part where Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990), is overruled, and thus provides no basis for allowing the government to limit corporate independent expenditures. Hence, the part of McConnell v. Federal Election Comm'n, 540 U.S. 93 (2007), that upheld the Bipartisan Campaign Reform Act section 203's extension of section 441b's restrictions on independent corporate expenditures is also overruled. However, the order is affirmed in part where BCRA sections 201 and 311 were valid as applied to the ads for the documentary and to the movie itself because disclaimer and disclosure requirements may burden the ability to speak, but they impose no ceiling on campaign-related activities, or prevent anyone from speaking.

January 11, 2010 No. 08-809.

The defendant, Troy Brown, had alleged on appeal that the state mischaracterized the probability that his DNA matched that of someone in the general population. He also claimed that a prosecution expert had misstated the chances of a DNA match between himself and his two brothers. All three lived near the victim.

“DNA evidence remains powerful inculpatory evidence even though the state concedes [its expert] overstated its probative value,” the Supreme Court wrote in McDaniel v. Brown.

The court remanded for consideration of Brown’s claims of ineffective assistance.

From: Per Curiam:

" In Jackson v. Virginia, 443 U. S. 307 (1979), we held that a state prisoner is entitled to habeas corpus relief if afederal judge finds that “upon the record evidence adducedat the trial no rational trier of fact could have found proofof guilt beyond a reasonable doubt.” Id., at 324. A Nevada jury convicted respondent of rape; the evidence presented included DNA evidence matching respondent’s DNA pro-file. Nevertheless, relying upon a report prepared by aDNA expert over 11 years after the trial, the Federal District Court applied the Jackson standard and grantedthe writ. A divided Court of Appeals affirmed. Brown v. Farwell, 525 F. 3d 787 (CA9 2008). We granted certiorarito consider whether those courts misapplied Jackson. Because the trial record includes both the DNA evidence and other convincing evidence of guilt, we conclude that they clearly did".

David Badertscher

Legal experts and prosecutors are quite concerned about possible results of the June 25, 2009 U.S. Supreme Court decision Melendez-Diaz v. Massachusetts 07-591. In this decision the Court has ruled that forensic analysts conducting tests must be in court to testify about their test results and that lab sheets that identify a substance as a narcotic, or breath test printouts describing a suspect's blood-alcohol level are no longer to be considered as sufficient evidence. A person is now required to be in court to talk about the test results. The basic question the Supreme Court addressed in this opinion was: "Is a state forensic analyst's laboratory report prepared for use in a criminal prosecution "testimonial" evidence subject to the demands of the Sixth Amendment's Confrontation Clause as set forth in Crawford v. Washington?"* In its ruling the Supreme Court answered, yes.
_________________________
*The above quote was taken from discussion of this opinion in the U.S. Supreme Court Oyez website at. http://www.oyez.org/cases/2000-2009/2008/2008_07_591 . This site also includes links to the text of the opinion as well at to the Syllabus, dissent, concurrance, and argument. For additional information see discussion in a July 15, 2009 Washington Post article by Tom Jackman, and follow the link on the U.S. Supreme Court website.

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June 1, 2009.

CIVIL PROCEDURE, INJURY AND TORT LAW, PER CURIAM, TRANSPORTATION
CSX Transp., Inc. v. Hensley, No. 08-1034
In an action brought under the Federal Employers' Liability Act, based on Plaintiff's fear of developing cancer due to asbestos exposure, judgment for Plaintiff is reversed where the trial court denied an instruction that Plaintiff must have a "genuine and serious fear" to recover damages, because that instruction was required by the Court's prior decision in Ayers v. Norfolk & Western R. Co., 538 U.S. 135 (2003). Read more...

CRIMINAL LAW & PROCEDURE, HABEAS CORPUS
Bobby v. Bies, No. 08-598
In a capital habeas matter, the Court of Appeals' order prohibiting the state court from holding a post-conviction hearing on whether Defendant was mentally retarded is reversed where the Double Jeopardy Clause did not bar the state court from conducting a full hearing on Defendant's mental capacity after trial.

May 27, 2009.

A Service from the ABA Criminal Justice Section, http://www.abanet.org/crimjust
MONTEJO v. LOUISIANA (No. 07-1529)

Mr. Montejo was arrested on September 6th, 2002, in connection with the robbery and murder of Mr. Lewis Ferrari. During police questioning of Mr. Montejo, which lasted from late afternoon on the 6th to early morning on the 7th, Mr. Montejo repeatedly changed the account of the crime, ultimately confessing to having shot and killed Mr. Ferrari during a failed burglary. Later, after being read his Miranda rights for a second time, Mr. Montejo agreed to accompany police in retrieving the alleged murder weapon. During this excursion, Mr. Montejo wrote a letter of apology to Mr. Ferrari’s widow. Mr. Montejo did not have access to his court-appointed attorney until his return to jail, who was upset that his client had been interrogated in his absence and subsequently objected to the apology letter’s admission as evidence at trial.

The jury convicted Mr. Montejo, who was sentenced to death. The Louisiana Supreme Court affirmed the conviction and sentence, relying on Montoya v. Collins, 955 F.2d 279 (1992), explanation of the rule in Michigan v. Jackson, 475 U.S. 625, 636 (1986), reasoning that the prophylactic protection of Jackson is not triggered unless and until the defendant has actually requested a lawyer or has otherwise asserted his Sixth Amendment right to counsel. At a hearing where a judge ordered the appointment of counsel, Mr. Montejo did not explicitly request a meeting with his counsel, but rather, remained mute.

The USSC held, in deciding whether courts must presume that a waiver of an accused’s Miranda rights is invalid under certain circumstances, that when a court appoints counsel for an indigent defendant in the absence of any request on his part, there is no basis for a presumption that any subsequent waiver of the right to counsel will be involuntary. The USSC explains that the rule laid out in Jackson was designed to prevent police from badgering defendants into changing their mind about their rights, but a defendant who has never asked for counsel, such as Mr. Montejo, has not yet made up his or her mind.

Scalia, J., delivered the opinion of the Court, in which Roberts, C.J., and Kennedy, Thomas, and Alito, J.J., joined. Alito, J., filed a concurring opinion, in which Kennedy, J., joined. Stevens, J., filed a dissenting opinion, in which Souter and Ginsburg, J.J., joined, and in which Breyer, J., joined, except for n. 5. Breyer, J., filed a dissenting opinion.

Available at: http://www.supremecourtus.gov/opinions/08pdf/07-1529.pdf

ABUELHAWA V. UNITED STATES

No. 08-192 (May 26, 2009)

After tapping the phone of suspected drug dealer Mohammed Said, FBI agents recorded six calls between Said and petitioner Salman Khade Abuelhawa, during which Abuelhawa arranged to buy cocaine in two separate transactions, each time for a single gram. Under §844 of the Controlled Substances Act, Abuelhawa’s purchases were misdemeanors, and Said’s two sales were felonies. However, the government charged Abuelhawa with six felonies on the theory that each phone call violated §843(b), which makes it a felony "to use any communication facility in… facilitating" felony drug sales.

Abuelhawa moved for acquittal on the grounds that his efforts to commit the misdemeanor could not be treated as facilitating Said’s felonies, but the motion was denied and Abuelhawa was convicted on all six counts. Abuelhawa argued the same point before the Court of Appeals for the Fourth Circuit, which upheld the conviction, reasoning that Abuelhawa’s use of a phone counted as facilitation because it “undoubtedly made Said’s cocaine distribution easier.”

The Supreme Court reversed the decision, holding that using a telephone to make a misdemeanor drug purchase does not "facilitate" felony drug sales in violation of §843(b). Where a transaction like a sale necessarily presupposes two parties with specific roles, it would be “odd” to speak of one party as facilitating the other’s conduct. The Court relied on holdings in similar cases in which adding to the penalty of the party on one side for facilitating the actions by the other would upend the “legislature’s punishment calibration.” See Gebardi v. United States, 287 U.S. 112, 119.

Furthermore, since the word “facilitate” is generally synonymous with “aid,” “abet,” or “assist,” it is likely that Congress had an equivalent meaning in mind when it enacted §843(b). Any broader reading would for practical purposes destroy the distinction between the possession of drugs and the distribution of drugs. Finally, the fact that Congress had previously downgraded possession from a felony to a misdemeanor shows that Congress meant to treat purchasing drugs for personal use more leniently than felony distribution, and to narrow the scope of the communications provision to cover only those who facilitate a felony. Therefore, Abuelhawa’s actions could not be considered “facilitation” of Said’s felonies.

Souter, J., delivered the opinion for a unanimous court.

Available at: http://www.law.cornell.edu/supct/html/08-192.ZS.html

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May 26, 2009.

CIVIL RIGHTS, CRIMINAL LAW & PROCEDURE, GOVERNMENT LAW, LABOR & EMPLOYMENT LAW
Haywood v. Drown, No. 07-10374
In a 42 U.S.C. section 1983 action by a prisoner, judgment for Defendant-Officers is reversed where Correction Law section 24, as applied to Section 1983 claims, violates the Supremacy Clause, because New York's policy of shielding correctional officers from liability for conduct performed in the scope of their employment is contrary to Congress's judgment that all persons who violate federal rights while acting under color of state law shall be held liable for damages.

CRIMINAL LAW & PROCEDURE
Abuelhawa v. US, No. 08-192
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).

.CRIMINAL LAW & PROCEDURE
Montejo v. Louisiana, No. 07-1529
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.

May 1, 2009.

Service from the ABA Criminal Justice Section, http://www.abanet.org/crimjust

DEAN v. UNITED STATES (No. 08-5274)

United States Supreme Court Opinion Decided: April 29, 2009

Petitioner Dean was convicted of conspiring to commit a bank robbery and discharging a firearm during an armed robbery. Because the firearm was "discharged" during the robbery, Dean was sentenced to a 10-year mandatory minimum prison term on the firearm count. sec.924(c)(1)(A)(iii).

On appeal, he contended that the discharge was accidental, and that sec.924(c)(1)(A)(iii) requires proof that the defendant intended to discharge the firearm. The Eleventh Circuit affirmed, holding that no proof of intent is required.

The Supreme Court held that Section 924(c)(1)(A)(iii) requires no separate proof of intent. The 10-year mandatory minimum applies if a gun is discharged in the course of a violent or drug trafficking crime, whether on purpose or by accident.

Subsection (iii) provides a minimum 10-year sentence "if the firearm is discharged." It does not require that the discharge be done knowingly or intentionally, or otherwise contain words of limitation.

Mr. Dean argued that subsection (iii) must be limited to intentional discharges in order to give effect to the statute's progression of harsher penalties for increasingly culpable conduct. While it is unusual to impose criminal punishment for the consequences of purely accidental conduct, it is not unusual to punish individuals for the unintended consequences of their unlawful acts. The fact that the discharge may be accidental does not mean that the defendant is blameless.

Because the statutory text and structure demonstrate that the discharge provision does not contain an intent requirement, the rule of lenity is not implicated in this case.

Affirmed.

Roberts, C. J., delivered the opinion of the Court, in which Scalia, Kennedy, Souter, Thomas, Ginsburg, and Alito, JJ., joined. Stevens, J., and Breyer, J., filed dissenting opinions.

Available at: http://www.law.cornell.edu/supct/html/08-5274.ZS.html

KANSAS v. VENTRIS (No. 07-1356)

United States Supreme Court Opinion Decided: April 29, 2009

Respondent Donnie Ray Ventris and Rhonda Theel were charged with murder along with other crimes. Prior to trial, an informant heard Ventris admit to shooting and robbing the victim, but Ventris testified at trial that Theel committed the crimes. When the State sought to call the informant to testify to his contradictory statement, Ventris objected. The State conceded that Ventris's Sixth Amendment right to counsel had likely been violated, but argued that the statement was admissible for impeachment purposes. The trial court allowed the testimony. The jury convicted Ventris of aggravated burglary and aggravated robbery.

The Kansas Supreme Court reversed holding that the informant's statements were not admissible for any reason, including impeachment.

The Supreme Court held that Ventris's statement to the informant, concededly elicited in violation of the Sixth Amendment, was admissible to impeach his inconsistent testimony at trial.

The interests safeguarded by excluding tainted evidence for impeachment purposes are "outweighed by the need to prevent perjury and to assure the integrity of the trial process." Stone v. Powell, 428 U. S. 465. Once the defendant testifies inconsistently, denying the prosecution "the traditional truth-testing devices of the adversary process,"

Harris, supra, at 225, is a high price to pay for vindicating the right to counsel at the prior stage. On the other hand, preventing impeachment use of statements taken in violation of Massiah would add little appreciable deterrence for officers, who have an incentive to comply with the Constitution, since statements lawfully obtained can be used for all purposes, not simply impeachment. In every other context, this Court has held that tainted evidence is admissible for impeachment. See, e.g., Oregon v. Hass, 420 U. S. 714.

Reversed and remanded.

Scalia, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Souter, Thomas, Breyer, and Alito, JJ., joined. Stevens, J., filed a dissenting opinion, in which Ginsburg, J., joined.

Available at: http://www.law.cornell.edu/supct/html/07-1356.ZS.html

United States Supreme Court Decision: April 28, 2009

A Service from the ABA Criminal Justice Section, http://www.abanet.org/crimjust

SYNOPSIS.

At trial the State discredited Mr. Cone's defense that he killed two people while suffering from acute psychosis caused by drug addiction, he was then convicted and sentenced to death. The Tennessee Supreme Court affirmed on direct appeal and the state courts denied post-conviction relief.

Later, in a second petition for post-conviction relief, Cone raised the claim that the State had violated Brady v. Maryland, 373 U. S. 83 , by suppressing witness statements and police reports that would have corroborated his insanity defense and bolstered his case in mitigation of the death penalty. The post-conviction court denied him a hearing on the ground that the Brady claim had been previously determined, either on direct appeal or in earlier collateral proceedings. The State Court of Criminal Appeals affirmed.

Mr. Cone then filed a petition for a writ of habeas corpus in Federal District Court. That Court denied relief, holding the Brady claim procedurally barred because the state courts' disposition rested on adequate and independent state grounds:

The Sixth Circuit agreed with the state court’s conclusion, but considered itself barred from reaching the claim's merits because the state courts had ruled the claim previously determined or waived under state law.

The state courts' rejection of Cone's Brady claim does not rest on a ground that bars federal review. The state court’s post-conviction denial of the Brady claim on the ground it had been previously determined in state court rested on a false premise: Cone had not presented the claim in earlier proceedings and, consequently, the state courts had not passed on it.

The Sixth Circuit's rejection of the claim as procedurally defaulted because it had been twice presented to the Tennessee courts was thus erroneous. Also unpersuasive is the State's alternative argument that federal review is barred because the Brady claim was properly dismissed by the state post-conviction courts as waived

The lower federal courts failed to adequately consider whether the withheld documents were material to Cone's sentence. Both the quantity and quality of the suppressed evidence lend support to Cone's trial position that he habitually used excessive amounts of drugs, that his addiction affected his behavior during the murders, and that the State's contrary arguments were false and misleading.

Nevertheless, even when viewed in the light most favorable to Cone, the evidence does not sustain his insanity defense. Because the likelihood that the suppressed evidence would have affected the jury's verdict on the insanity issue is remote, the Sixth Circuit did not err by denying habeas relief on the ground that such evidence was immaterial to the jury's guilt finding.

The same cannot be said of that court's summary treatment of Cone's claim that the suppressed evidence would have influenced the jury's sentencing recommendation. Because the suppressed evidence might have been material to the jury's assessment of the proper punishment, a full review of that evidence and its effect on the sentencing verdict is warranted.

vacated and remanded.

Stevens, J., delivered the opinion of the Court, in which Kennedy, Souter, Ginsburg, and Breyer, JJ., joined. Roberts, C. J., filed an opinion concurring in the judgment. Alito, J., filed an opinion concurring in part and dissenting in part. Thomas, J., filed a dissenting opinion, in which Scalia, J., joined.

Available at: http://www.law.cornell.edu/supct/html/07-1114.ZS.html

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ADMINISTRATIVE LAW, GOVERNMENT BENEFITS, MILITARY LAW
Shinseki v. Sanders, No. 07-1209
In an application for veterans' disability benefits, the Court of Appeals for the Federal Circuit's holding that the Department of Veterans Affairs erred in denying benefits is reversed, where the Federal Circuit's "harmless-error" framework conflicts with 38 U.S.C. section 7261(b)(2)'s requirement that the Veterans Court take "due account of the rule of prejudicial error."

CIVIL PROCEDURE, DISPUTE RESOLUTION & ARBITRATION, GOVERNMENT LAW, INJURY AND TORT LAW, INTERNATIONAL LAW, JUDGMENT ENFORCEMENT
Ministry of Def. v. Elahi, No. 07-615
In an action seeking to attach a judgment obtained by Iran, the District Court's order permitting the attachment is reversed, where Plaintiff could not attach the judgment because he waived his right to do so, as the U.S. paid Plaintiff as partial compensation for his judgment against Iran under the Victims of Trafficking and Violence Protection Act

CRIMINAL LAW & PROCEDURE, EVIDENCE
Arizona v. Gant, No. 07-542
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.

April 8, 2009

A Service from the ABA Criminal Justice Section, http://www.abanet.org/crimjust

Corley v. United States
No. 07-10441

In vacating and remanding a 3rd Circuit decision, the U.S. Supreme Court has found that 18 U.S.C. 3501 regarding admissibility of voluntary confessions modifies but does not supplant the bar to admissibility of voluntary confessions obtained outside of “reasonable” time limits anticipated under McNabb-Mallory. For a copy of the opinion, see

http://www.supremecourtus.gov/opinions/08pdf/07-10441.pdf.

Harbison v. Bell, Warden

No. 07-8521

"In reversing a 6th Circuit opinion, the U.S. Supreme Court has found that a certificate of appealability is not required to appeal a denial of federally appointed counsel, and that federally appointed counsel may represent clients in state clemency proceedings and be compensated for that representation. Following Tennessee state courts’ rejection of Petitioner’s conviction and death penalty challenges, a federal public defender had been appointed to represent him in a habeas petition. Upon denial of that petition, counsel sought to continue representing Petitioner in state clemency proceedings since Tennessee does not provide counsel for such proceedings. The District Court had denied the motion, and the 6th Circuit had affirmed."

For a copy of the slip opinion, see: http://www.supremecourtus.gov/opinions/08pdf/07-8521.pdf.

A Service from the ABA Criminal Justice Section, http://www.abanet.org/crimjust

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March 24-25, 2009

CRIMINAL LAW & PROCEDURE, HABEAS CORPUS

Knowles v. Mirzayance, No. 07-1315

The District Court's grant of Petitioner's habeas petition is reversed, where, whether the state court's denial of his ineffective assistance claim is reviewed under 28 U.S.C. section 2254(d)(1)'s standard or de novo, Petitioner failed to establish that his counsel's performance was ineffective

CRIMINAL LAW & PROCEDURE, SENTENCING

Puckett v. US, No. 07-9712

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.

.

From the American Bar Association Criminal Justice Section: http://www.abanet.org/crimjust

I"n a case arising from a felony domestic assault and habitual offender charges, where the defendant had at least six different appointed attorneys between the time of his arrest and his trial, the trial court denied the defendant's motion to dismiss for want of a speedy trial. The Vermont Supreme Court, however, reversed, holding that the conviction must be vacated, and the charges dismissed, because the State did not accord a speedy trial as is required by the Sixth Amendment. The Supreme Court held that The Vermont Supreme Court erred in ranking assigned counsel essentially as state actors in the criminal justice system, stating that assigned counsel, just as retained counsel, act on behalf of their clients, and, in the absence of institutional breakdowns of the public defender system, delays sought by counsel are ordinarily attributable to the defendants they represent."

The full opinion can be accessed at http://topics.law.cornell.edu/supct/cert/08-88

From the ABA Criminal Justice Section: http://www.abanet.org/crimjust

United States v. Hayes (No. 07-608)

"The court released an opinion regarding the prohibition on possession of a firearm by convicted felons to include persons convicted of a misdemeanor crime of domestic violence. Police officers discovered a rifle in respondent Hayes's home. Hayes was charged with possessing firearms after having been convicted of a misdemeanor crime of domestic violence. He was previously convicted for battery in 1994 against his then-wife. Hayes moved to dismiss the indictment on the ground that his past conviction did not qualify as a predicate offense because West Virginia's generic battery law did not designate a domestic relationship between aggressor and victim as an element of the offense. When the District Court denied the motion, Hayes entered a conditional guilty plea and appealed. The Fourth Circuit reversed, holding that a §922(g)(9) predicate offense must have as an element a domestic relationship between offender and victim."

"By extending the federal firearm prohibition to persons convicted of misdemeanor crimes of domestic violence, §922(g)(9)'s proponents sought to close a loophole: Existing felon-in-possession laws often failed to keep firearms out of the hands of domestic abusers, for such offenders generally were not charged with, or convicted of, felonies. Hayes argues that the measure that became §§922(g)(9) and 921(a)(33)(A), though it initially may have had a broadly remedial purpose, was revised and narrowed during the legislative process, but his argument is not corroborated by the revisions he identifies."

"Congress defined "misdemeanor crime of domestic violence" to include an offense "committed by" a person who had a specified domestic relationship with the victim, whether or not the misdemeanor statute itself designates the domestic relationship as an element of the crime."

"Justice Ginsburg delivered the opinion of the Court. Justice Roberts filed a dissenting opinion in which only Justice Scalia joined."

The full opinion can be accessed at http://www.law.cornell.edu/supct/html/07-608.ZS.html.

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January 26, 2009

CIVIL PROCEDURE, CIVIL RIGHTS, CONSTITUTIONAL LAW, CRIMINAL LAW & PROCEDURE
Van de Kamp v. Goldstein, No. 07-854
In the context of 42 U.S.C. section 1983 civil rights suits, a prosecutor's absolute immunity extends to claims that the prosecution failed to disclose impeachment material due to failure to: 1) properly train prosecutors; 2) properly supervise prosecutors; or 3) establish an information system containing potential impeachment material about informants..

CIVIL PROCEDURE, CIVIL RIGHTS, LABOR & EMPLOYMENT LAW
Crawford v. Metro. Gov't of Nashville, No. 06-1595
The protection of Title VII of the Civil Rights Act of 1964, which forbids retaliation by employers against employees who report workplace race or gender discrimination, extends to an employee who speaks out about discrimination not on her own initiative, but in answering questions during an employer's internal investigation.

CRIMINAL LAW & PROCEDURE, EVIDENCE
Arizona v. Johnson, No. 07-1122
In a case involving the authority of police officers to "stop and frisk" a passenger in a motor vehicle after a traffic stop, the Court rules that: 1) the first condition of Terry v. Ohio, i.e. a lawful investigatory stop, is met whenever it is lawful for police to detain an automobile and its occupants pending inquiry into a vehicular violation; 2) police need not have, in addition, cause to believe any occupant of the vehicle is involved in criminal activity; and 3) to justify a pat-down of the driver or a passenger during a traffic stop, however, just as in the case of a pedestrian reasonably suspected of criminal activity, the police must harbor reasonable suspicion that the person subjected to the frisk is armed and dangerous.

CRIMINAL LAW & PROCEDURE, PER CURIAM, SENTENCING
Nelson v. US, No. 08-5657
The Court re-emphasizes that its cases do not allow a sentencing court (as opposed to an appellate court) to presume that a sentence within the applicable Sentencing Guidelines range is reasonable. Here, the sentencing court clearly applied a presumption of reasonableness to petitioner's Guidelines range, and the circuit court erred in affirming the sentence.

ERISA, FAMILY LAW, LABOR & EMPLOYMENT LAW
Kennedy v. Plan Admin. for DuPont Savings & Inv. Plan, No. 07-636
In an ERISA case involving the Act's limitation on assignment or alienation of benefits, and a divorced spouse's purported waiver of her entitlement to benefits, the Supreme Court rules in favor of ERISA plan administrator that had paid out benefits to former wife-designated beneficiary because: 1) although a waiver of the type at issue, i.e. a federal common law waiver embodied in a divorce decree that was not a qualified domestic relations order, is not rendered invalid by the text of the anti-alienation provision; nevertheless, 2) plan administrator properly disregarded the waiver due to its conflict with the beneficiary designation made by former husband in accordance with plan documents.

January 23, 2009
From the American Bar Association Criminal Justice Section
"> www.abanet.org/crimjust">

Spears v. US, No. 08–5721

The government appealed a sentence for conspiracy to distribute cocaine base and powder cocaine in which the District Court reduced the sentencing range for crack cocaine from the 100 to 1 ratio to a 20 to one ratio based on the U. S. Sentencing Commission guidelines and the Smith and Perry cases. The District Court imposed a sentence based on a 20 to 1 ratio which was its interpretation of the mandatory minimum sentence in the case. The Eighth Circuit Court of Appeals reversed the district Court’s interpretation of the minimum sentence in the case and imposed a tougher sentence based on the 100 to 1 ratio. The Supreme Court remanded for rehearing by the Eighth Circuit which again imposed the tougher sentence. On rehearing the Supreme Court reversed stating, “we now clarify that district courts are entitled to reject and vary categorically from the crack cocaine Guidelines based on a policy disagreement with those Guidelines.”

www.supremecourtus.gov/opinions/08pdf/08-5721.pdf

Pearson v. Callahan, No. 07-751

In a 42 U.S.C. section 1983 action against state law enforcement officers who conducted a warrantless search of plaintiff's house incident to his arrest for the sale of methamphetamine to an undercover informant (whom plaintiff had voluntarily allowed into the premises), a court of appeals ruling reversing a ruling that defendants were entitled to qualified immunity is reversed where: 1) the procedure the Supreme Court mandated in Saucier v. Katz, 533 U.S. 194 (2001), should not be regarded as an inflexible requirement; and 2) petitioners were entitled to qualified immunity on the ground that it was not clearly established at the time of the search that their conduct was unconstitutional.

www.supremecourtus.gov/opinions/08pdf/07-751.pdf

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.

www.supremecourtus.gov/opinions/08pdf/07-772.pdf

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www.latimes.com/news/nationworld/nation/la-na-supreme-court-porno22-2009jan22,0,5267091.story

From: Findlaw Breaking Documents May 28, 2008;

Suspect's Constitutional Rights Not Violated, Even If Prohibited By State Law

VIRGINIA V. MOORE

"(U.S. Supreme Ct., April 23, 2008) - Police did not violate a suspect's Fourth Amendment rights when they made an arrest based on probable cause but prohibited by state law, or when they performed a search incident to the arrest."