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A Weekly Summary of Snippets of Justice From the Federal Courts

Vol. 8, No. 7              Covering Cases Published in the Advance Sheets through Feb. 12, 2001

Highlights of this Issue:

Apprendi Watch:

Closure of Courtroom Case:

Child Pornography - The Next Great Battlefield:

U.S.S.G. and Sentencing Issues:

Dont forget to visit the Apprendi  Watch section of our Web site each week - the most current and comprehensive site on the entire Internet for all the latest developments involving that watershed decision. That section now includes links to and summaries of more than 145 Apprendi decisions, more than 100 Apprendi briefs and motions, and a listing of the 46 cases that the Supreme Court has vacated to date based on Apprendi.

Browning v. United States, No. 00-7096 (10th Cir. 3/1/01) (En Banc) (Judge Seymour)

The issue of whether the Supreme Courts recent decision in Apprendi v. New Jersey, 530 U.S. 466 (2000), is retroactive for purposes of collateral review continues to embroil the courts in a growing debate. This is the first en banc decision on that on that broad issue; and here a majority of the judges, by a vote of 8 to 2, held that the proper retroactivity test for second or successive habeas applications under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) is whether the Supreme Court had "specifically declared the new rule to be retroactive to cases on collateral review." However, since the Supreme Court had not yet declared its intention with respect to the retroactivity of Apprendi, the Eighth Circuit dismissed the petitioners claim "without prejudice in the event of future action by the Supreme Court."

As was recently pointed out to us, the Courts decision also perpetuates a sloppy and incorrect shorthand summary of the Supreme Courts holding in Teague v. Lane, 489 U.S. 288 (1989) - an approach that has become prevalent among judges and lawyers to the point of obfuscating - if not significantly expanding - the Teague ruling far beyond what the Supreme Court actually ruled.

The petitioner in this case pled guilty in 1994 to charges of methamphetamine distribution and possession of a stolen vehicle and he was sentenced to concurrent terms of 292 and 120 months imprisonment. After his conviction and sentence were affirmed on direct appeal, he filed his first petition for habeas relief in 1997, claiming his guilty plea was involuntary and challenging the application of certain sentencing enhancements to his case. That petition was denied and not subsequently appealed. He then requested leave of the appellate court to file a second or successive application for a writ of habeas corpus pursuant to 28 U.S.C. 2255, arguing that Apprendi rendered his sentence unconstitutional.

Noting that the "procedural framework" for second or successive applications under 2255 "differs markedly from that followed for initial applications," the majority focused on the language of paragraph eight of 2255, which states that an application may progress only if the court of appeals certifies that it is relying either on "newly discovered evidence" or on "a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable."

The petitioner relied heavily on the rationale set forth in two recent cases, West v. Vaughn, 204 F.3d 53 (3rd Cir. 2000) and Flowers v. Walter, No. 99-35552, 2000 WL 33157575 (9th Cir. 2/9/2001) (See P&J, 1/22/01), where both courts held that the Supreme Court does not have to state, expressly or specifically, that a new decision is retroactive if the decision otherwise meets the standards established in Teague.

Conversely, the Government argued that 2255 "requires an actual retroactive application of a new rule by the [Supreme] Court, or specific language by the Court to that effect."

The Court granted en banc review to consider two questions: (1) what is the proper retroactivity test under the AEDPA for authorization to file a second or successive habeas petition; and (2) "whether Apprendi enunciates a new rule of constitutional law that has been made retroactive to cases on collateral review by the Supreme Court within the meaning of section 2255."

In responding to those questions, the majority concluded: "We hold that, while a Teague analysis remains applicable to initial habeas applications raising new rules of constitutional law under section 2255, the proper test on a second or successive application is merely to ask whether the rule has been made retroactive by the Supreme Court. We further hold that a rule is made retroactive by the Court only if the Court actually applies the rule retroactively, or makes some explicit statement regarding retroactivity."

The majority also rejected the approach taken by the Third and Ninth Circuits in West and Flowers, concluding that 2255 "requires us to await some specific guidance by the Supreme Court, rather than to apply Teagues retroactivity analysis, before we may grant leave to proceed with second or successive habeas applications which rely on new rules of constitutional law." The Court noted, however, that the Supreme Court recently granted certiorari in Tyler v. Cain, 121 S.Ct. 654 (2000) to resolve the retroactivity issue addressed by the Third Circuit in West.

While the majoritys ruling was limited to second or successive petitions under 2255 para. 8(2), we believe, as noted above, that throughout its decision the majoritys shorthand summary of the Teague ruling was incomplete at best. The majority summarized Teague as follows: "If the basis for relief depends upon a new rule of constitutional law announced after the conviction became final, consideration of the motion proceeds under the analytical framework established by the Supreme Court in Teague. Under the Teague analysis, new rules of constitutional law shall not be available retroactively to prisoners seeking collateral habeas review unless they either place a class of private conduct beyond the power of the state to proscribe, or define a watershed rule of criminal procedure that implicates the fairness and accuracy of a criminal proceeding on a fundamental level." (Citing Teague, at 311).

In Teague, a plurality of the Court actually held that "new constitutional rules of criminal procedure" (as distinguished from new rules of criminal substantive law) established by the Supreme Court are not applicable to convictions that have become final before the new rule was announced (unless the new rule would be applied retroactively to all defendants on collateral review through one of two articulated exceptions). In other words, Teague did not limit the retroactive use of new rules of criminal substantive law in habeas proceedings - a distinction that many judges and lawyers seem to ignore through their shorthand use of the phrase "new rules", without differentiating between new constitutional rules of criminal procedure and new constitutional rules of criminal substantive law.

And while we are on that topic, we also think it worthwhile to note two judicial statements relevant to the issue of whether Apprendi falls within one of the two Teague exceptions (assuming arguendo that Apprendi did establish a "new constitutional rule of criminal procedure" within the meaning of Teague).

First, in Teague, the Supreme Court essentially built on Justice Harlans analysis first set forth in Mackey v. U.S., 401 U.S. 667, 693-94 (1971) where he wrote: "Typically, it should be the case that any conviction free from federal constitutional error at the time it became final, will be found, upon reflection, to have been fundamentally fair and conducted under those procedures essential to the substance of a full hearing. However, in some situations it might be that time and growth in social capacity, as well as judicial perceptions of what we can rightly demand of the adjudicatory process, will properly alter our understanding of the bedrock procedural elements that must be found to vitiate the fairness of a particular conviction."

Then, in Apprendi, Justice OConnor, who wrote one of the dissenting opinions, presented her own analysis of the impact that decision would have on habeas petitions. She stated: "Today, in what will surely be remembered as a watershed change in constitutional law, the Court imposes as a constitutional rule the principle it first identified in Jones [v. U.S., 526 U.S. 227 (1999)]." (Emphasis added).

Bell v. Jarvis, 236 F.3d 149 (4th Cir. 2000) (En Banc) (Judge Traxler)

This is a significant en banc decision in which a divided court ruled on two issues. First, over the strong dissent of three judges, the majority reversed a prior panels decision which had held that a state court violated the defendants Sixth Amendment rights to a public trial when it closed the courtroom, without making any findings to support its action, during the entire testimony of "the most critical prosecution witness." Second, relying on the Supreme Courts decision in Williams v. Taylor, 529 U.S. 362 (2000), the majority held that a habeas court may no longer conduct a de novo or independent review of a challenged state court determination, overruling a long line of Fourth Circuit precedents.

The case involved the petitioners convictions on 58 counts of sexual misconduct all of which involved his twelve-year old step-granddaughter. During his trial, the state judge "summarily and without explanations" removed the public and the press from the courtroom while the victim testified. The main issue on appeal was whether that action violated the Supreme Courts ruling in Waller v. Georgia, 467 U.S. 39 (1984), where the Court established certain procedures that must be followed prior to closing a courtroom, including the making of findings adequate to support the closure. Essentially, the majority and dissenting opinions contain an excellent summary of the current law on public trials; and they show that different standards may apply when the crime involves the sexual exploitation of minors.

United States v. Kallestad, 236 F.3d 225 (5th Cir. 2000) (Judge Higginbotham)

This case involved a constitutional challenge to 18 U.S.C. 2252(a)(4)(B), which prohibits the mere possession of sexually explicit depictions of minors if those depictions, or the materials used to produce them, were shipped in Interstate Commerce. The defendant in this case was prosecuted under that statute after Government agents found a large number of nude photos and films of women, "some of whom appeared to be minors," in his home. On appeal, the defendant challenged the constitutionality of 2252(a)(4)(B), arguing it was beyond Congress power under the Commerce Clause. Succumbing to the sensitive political pressures that are flaming and shaping Americas war on child pornography, the majority concluded that "Congress could rationally conclude that to regulate a national market in child pornography it was necessary to regulate its local possession." (Id., at 226)

Although most Circuits have agreed with the position taken by the majority in this case, Judge Jollys dissent is noteworthy. He stated: "I respectfully dissent. For whatever else it may be cited, United States v. Lopez[, 514 U.S. 549 (1995)] at least stands for the proposition that purely intrastate, non-commercial possession of a non-fungible good is in no sense an economic activity that might, through repetition elsewhere, substantially affect any sort of interstate commerce." (Id., at 231).

He then concluded "we should hold that this simple local possession of self-generated pornographic material, where no commercial activity was involved, no interstate transportation took place, and no congressional findings support the necessity of such regulation in the framework of a broader regulatory scheme, is beyond the reach of any reasonable interpretation of Congress' Commerce Clause power." (Id., at 233)

QUOTE OF THE WEEK - Prison Labor: A Crime in China - But Not in the United States?

We were a bit bemused by an article that appeared in The New York Times last week. The article, which appeared in the March 1, 2001 edition, noted that a manufacturer of widely used metal clips for binding documents "became the first Chinese company to be convicted in the United States of using forced prison labor" when it pled guilty to Federal charges in New Jersey.

Apparently, the clips had been assembled by some 60 women imprisoned in China, who were not paid for their services and who often worked so many hours that their fingers were sometimes bloodied. Surprisingly, it wasnt the bloodied fingers that was the crime at issue - it was commerce. As reported in the Times, the defendant company pled guilty "to violating a 1932 law that was passed to prevent human rights abuses and protect American businesses and workers from unfair competition. The law makes it illegal to import into the United States any products made with prison or forced labor."

We immediately visited the Bureau of Prisons (BOP) Web site to see if we could figure out why it is illegal for a Chinese company to use prison labor while its not for the BOP. Since 1934, the BOP has operated a program called UNICOR (also known as Federal Prison Industries, Inc) which today sells more than 150 different products made in American prisons in direct competition with American businesses. We learned that, in 1999, UNICOR employed some 20,966 prisoners who made a broad range of products from toner cartridges, to mouse pads, draperies, dormitory furniture, linens, electronic equipment, and so forth. UNICORs total net sales in 1999 were $566 million, on which it earned a gross profit of $61 million. That healthy 10.77% profit margin was made possible only because UNICOR pays the inmates wages that are but a fraction of the minimum wages mandated by law for its competitors.

Nothing we could find explained why it is illegal to import products made with Chinese prison labor, when it is perfectly legal to manufacture and sell in this country a broad range of products made with American prison labor - when those products also compete directly and unfairly with American businesses. Are we missing something - or is this simply another one of those Government-speak double standards: you cant do it, but we can!

News from the Internet

We note two new Web sites where you can obtain legal forms. U.S. CourtForms (located at claims to offer the largest collection of court forms available anywhere, with some 40,000 legal forms, both interactive (which means they can be filled out on your computer and for which you are charged a fee) or downloadable, non-interactive forms, which are free. U.S. LegalForms (, which claims to be the "premier legal forms site on the Internet," offers more than 20,000 interactive legal forms in a broad range of categories, most for a fee of $5.00.

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