Criminal Law Alert

Summaries by Dan Schweitzer at NAAG.

United States v. Jones, 10-1259. Decided January 23, 2012.

Without dissent, the Court held that federal agents conducted a search, within the meaning of the Fourth Amendment, when they installed a global positioning system (GPS) tracking device on the undercarriage of respondent’s car and then monitored the car’s movements for 30 days. Through a 5-Justice majority opinion, the Court held that “[t]he Government physically occupied private property for the purpose of obtaining information” and “[w]e have no doubt that such a physical intrusion would have been considered a ‘search’ within the meaning of the Fourth Amendment when it was adopted.” The Court ruled that the “reasonable expectation of privacy” test announced in Katz v. United States is “not the sole measure of Fourth Amendment violations.” A four-Justice concurring opinion disagreed with that “trespass-based rule,” but concluded that the long-term monitoring that took place here was a search because it “involved a degree of intrusion that a reasonable person would not have anticipated.”

Decision: USSC10-1259USSCvJones.pdf

Ryburn v. Huff, 11-208. Decided January 23, 2012.

Through a unanimous per curiam opinion, the Court summarily reversed a Ninth Circuit opinion that had denied qualified immunity to two police officers who were sued under §1983 for entering a house without a warrant because they were concerned about an imminent threat of violence. The Court criticized the Ninth Circuit majority for “tak[ing] the view that conduct cannot be regarded as a matter of concern so long as it is lawful”; for “look[ing] at each separate event in isolation,” rather than the “combination of events”; and for failing to be cautious before “second-guessing a police officer’s assessment, made on the scene, of the danger presented by a particular situation.”

Decision: USSC11-208RyburnvHuff.pdf

Reynolds v. United States, 10-6549. Decided January 23, 2012.

The Sex Offender Registration and Notification Act (SORNA) requires convicted sex offenders to register, and keep the registration current, in all states and makes it a crime to fail to do so. By a 7-2 vote, the Court held that SORNA does not require persons who committed their sex offenses before SORNA’s enactment to register unless and until the Attorney General specifies that the registration provisions apply to such offenders. (The Attorney General adopted an Interim Rule specifying that SORNA applies to pre-Act offenders and a valid final rule to that effect. The Court did not address the validity of the Interim Rule, which petitioner challenged in the lower courts on constitutional and APA grounds.)

Decision: USSC10-6549ReynoldsvUS.pdf

Maples v. Thomas, 10-63. Decided January 18, 2012.

By a 7-2 vote, the Court held that petitioner’s counsel abandoned him while his state post-conviction application was pending, which was “cause” to excuse the procedural default that occurred when he failed to appeal the denial of that application. Petitioner failed to file a timely appeal because his out-of-state pro bono counsel (two associates at Sullivan & Cromwell) had left the firm by the time the trial court issued its order, and the firm’s mail room declined to accept the envelopes containing the order. (Local counsel received the order, but apparently assumed lead counsel would handle the matter.) The Court held that his counsel had abandoned him and therefore were not his agents when the default occurred. As a consequence, the default resulted from “something external to petitioner” and could be cause to excuse the default.

Decision: USSC10-63Maples.pdf

Perry v. New Hampshire, 10-8974. Decided January 11, 2012.

By an 8-1 vote, the Court held that the Due Process Clause does not require a trial judge to screen eyewitness evidence for reliability pretrial when suggestive circumstances surrounding the identification were not arranged by law enforcement officers. The Court distinguished earlier cases that required such a pretrial judicial screening when police had orchestrated the suggestive circumstances by, for example, using an improper lineup.

Decision: USSC10-8974PerryvNH.pdf

Gonzalez v. Thaler, 10-895. Decided January 10, 2012.

The Court construed two provisions of AEDPA. First, the Court held (by an 8-1 vote) that AEDPA’s requirement that a certificate of appealability (COA) “shall indicate [the] specific issue” on which the petitioner has made a “substantial showing of the denial of a constitutional right” is a mandatory but non-jurisdictional rule. “Accordingly, a judge’s failure to ‘indicate’ the requisite constitutional issue in a COA does not deprive a court of appeals of subject-matter jurisdiction to adjudicate the habeas petitioner’s appeal.” Having therefore found jurisdiction, the Court turned to the second issue, involving the construction of AEDPA’s one-year statute of limitations, which begins to run on the date the state judgment becomes final “by the conclusion of direct review or the expiration of the time for seeking such review.” By an 8-0 vote, the Court held that “for a state prisoner who does not seek review in a State’s highest court, the judgment becomes ‘final’ on the date that the time for seeking such review expires.”

Decision: USSC10-895Gonzalez.pdf

Smith v. Cain, 10-8145. Decided January 10, 2012.

By an 8-1 vote, the Court held that prosecutors violated Brady v. Maryland by failing to provide defense counsel with statements by the single eyewitness who linked petitioner to the crime that called into question the reliability of that identification. Specifically, the lead detective’s notes, made the night of the murder and five days later, contain statements by the eyewitness stating that he could not identify the perpetrators and did not see any faces. These “undisclosed statements were plainly material.”

Decision: USSC10-8145SmithvCain.pdf

Minneci v. Pollard, 10-1104. Decided January 10, 2012.

By an 8-1 vote, the Court held that it would not imply a Bivens action against employees of a privately operated federal prison because “state tort law authorizes adequate alternative damages actions ─ actions that provide both significant deterrence and compensation.” The Court therefore reversed a Ninth Circuit decision that had allowed a prisoner’s Eighth Amendment-based damages claim, based on a deprivation of adequate medical care, to proceed.

Decision: USSC10-1104MinnecivPollard.pdf

Certiorari Granted: Summary by Dan Schweitzer at NAAG.

Cavazos v. Williams, 11-465. Certiorari granted January 13, 2012.

The Court granted California’s cert petition, limited to the first question, which asked: “Whether a habeas petitioner’s claim has been ‘adjudicated on the merits’ for purposes of 28 U.S.C. §2254(d) where the state court denied relief in an explained decision but did not expressly acknowledge a federal-law basis for the claim.”

Certiorari Denied: Summary by SCOTUS.

Alvis v. Espinosa Certiorari Denied January 17, 2012.
Docket: 11-84
Issue(s): (1) Whether the Ninth Circuit erred in holding that when an officer makes an unlawful entry, and does so “intentionally or recklessly,” the officer loses authority under the Fourth Amendment to use reasonable force to protect himself or the public during that search; and (2) whether the Ninth Circuit erred in denying qualified immunity for the officers’ use of force based solely on the conclusion that the force may have violated the Fourth Amendment, without performing the second step of the qualified immunity analysis by inquiring whether clearly established law prohibited the force under the circumstances.

“Petitions to Watch.” Summaries by SCOTUS.

The following petition has been scheduled for the Justices’ private conference on February 17, 2012:

Cannella v. Florida
Docket: 11-278
Issue: Whether a criminal defendant’s pre-arrest silence can be used by the prosecution at trial during the prosecution’s case in chief.

The following petitions are of interest and have not been set for conference:

Garcia v. Holder
Docket: 11-79
Issue(s): Whether a state conviction for possession of unspecified quantity of marijuana categorically constitutes a felony conviction under federal law (and therefore an “aggravated felony” under federal immigration law), even if the offense could fall within the federal misdemeanor exception for low-level drug offenses?

Ryan v. Gonzales
Docket: 10-930
Issue(s): Does 18 U.S.C. § 3599(a)(2) “which provides that an indigent capital state inmate pursuing federal habeas relief "shall be entitled to the appointment of one or more attorneys" entitle a death row inmate to stay the federal habeas proceedings he initiated if he is not competent to assist counsel?

Ryan v. U.S.
Docket: 11-499
Issue(s): (1) Whether, to have preserved a claim that jury instructions directed
and produced a conviction for noncriminal conduct, must a petitioner under 18 U.S.C. § 2255 have argued for the precise standard this Court articulated when it held this conduct noncriminal in a later case; (2) whether a federal court may disregard the government’s express acknowledgment that a petitioner preserved a claim that instructions directed and produced his conviction for noncriminal conduct; and (3) whether, when a jury was directed to convict a § 2255 petitioner of noncriminal conduct, he must show (a) that the evidence would have been insufficient to support his conviction under the appropriate standard; (b) that there is grave doubt whether the erroneous instructions had a substantial and injurious effect on the verdict; (c) that there is a reasonable likelihood that he was not convicted of a crime; or (d) that it is not clear beyond a reasonable doubt that he was convicted of a crime.

Childers v. Floyd
Docket: 11-42
Issue(s): (1) Whether a state court has "adjudicated on the merits" under 28 U.S.C. § 2254(d) a properly preserved federal constitutional claim when the state court has rendered an extensive, reasoned decision deciding the issue solely on state law grounds and has failed to mention or address the federal constitutional issue; and (2) whether Olden v. Kentucky, Delaware v. Van Arsdall, and Davis v. Alaska permit a trial court to preclude cross-examination into the bias of a key witness on the ground that the trial court has allowed some cross-examination into bias.

Florida v. Harris
Docket: 11-817
Issue(s): Whether an alert by a well-trained narcotics detection dog certified to detect illegal contraband is insufficient to establish probable cause for the search of a vehicle?

Bailey v. U.S.
Docket: 11-770
Issue(s): Whether, pursuant to Michigan v. Summers, police officers may detain an individual incident to the execution of a search warrant when the individual has left the immediate vicinity of the premises before the warrant is executed.

Wetzel v. Lambert
Docket: 11-38
Issue: Did the Third Circuit fail to properly apply the habeas deference standard to the state court’s rejection of respondent’s Brady claim?


FYI: Florida Supreme Court accepted jurisdiction on two cases that dealt with ineffective assistance of counsel claims for failure to apprise defendants of the immigration consequences of their pleas (sufficiency of the colloquy).

Review was granted with expedited briefing schedules for the following two cases:

Castano v. State, SC11-1571. SC11-1571oaCastano.pdf

Diaz v. State, SC11-1281. SC11-1281oaDiaz.pdf

NOTE: Hernandez v. State, SC11-941 was consolidated with SC 11-1357 and review was granted on the merits for both Hernandez’s petition and the State’s cross petition, where the State is challenging the ruling on the sufficiency of the colloquy.

Defendant, under Graham v. Florida claim, has “no right to bond . . . unless the state could not meet the standard of State v. Arthur, 390 So. 2d 717 (Fla. 1980).”

Treacy v. Lamberti, 4D11-4645. Opinion filed January 25, 2012.

Petitioner, a juvenile, was charged with “attempted first degree premeditated murder with a deadly weapon, a life felony.” Petitioner argued in his writ of habeas corpus that “Graham v. Florida, 130 S. Ct. 2011 (2010), entitles him to bond as a matter of right.”

The 4^th DCA noted that Graham “prohibits the imposition of a life without parole sentence on a juvenile offender who did not commit homicide,” however, Graham “does not impact petitioner’s bond because the language of Article I, Section 14 of the Florida Constitution focuses on the classification of the offense to determine entitlement to pretrial release, and not the potential severity of punishment.” “In other words, sentencing, the focus of Graham, and entitlement to pretrial release are two different issues.”

The 4^th DCA denied the petition and noted that “. . . such defendants simply had no right to bond as a matter of law unless the state could not meet the standard of State v. Arthur, 390 So. 2d 717 (Fla. 1980). Reminder: at an Arthur hearing the State has the burden of proving “proof evident, presumption great.”

Assistant Attorney General Helene Hvizd represented the state.

Opinion: 4D11-4645.opTreacyvLamberti.pdf

Administrative Order No 2011-2; Agreed Extension of Time for Briefs.

Just a reminder there is a New Administrative order on agreed extensions of time for briefs effective February 1, 2012.

AdminOrder: 4DAdmin order extend of time for briefs.pdf