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A Weekly Summary of Snippets of Justice From the Federal Courts

Vol. 8, No. 23              Covering Cases Published in the Advance Sheets through June 4, 2001

Highlights of this Issue:

Supreme Court Decisions:

The Difficult Burden of Getting a New Trial:

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

Apprendi Watch:

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 contains summaries of more than 240 Apprendi decisions, links to numerous Apprendi articles and more than 100 Apprendi briefs and motions, and a listing of the 49 cases that the Supreme Court has vacated to date based on Apprendi.

Calcano-Martinez v. I.N.S., No. 00-1011 (U.S. Sup. Ct. 06/25/2001) (Justice Stevens)
I.N.S. v. St. Cyr, No. 00-767 (U.S. Sup. Ct. 06/25/2001) (Justice Stevens)

In this pair of decisions, the Supreme Court held that 1996 amendments to the Immigration and Nationality Act (INA) restricting judicial review of deportation orders involving aliens convicted of serious crimes do not prevent the Federal courts from asserting habeas corpus jurisdiction over statutory and constitutional challenges to deportation orders. Thus, the Court added back some significant legal protections to the rights of aliens facing deportation - rights that had been systematically removed or watered-down under the provisions of two acts adopted by Congress in 1996 - namely, the Antiterrorism and Effective Death Penalty Act (AEDPA) and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) - which radically changed the immigration policies of this country.

Prior to 1996, an alien who was determined to be deportable could apply to the Attorney General for a waiver of deportation under 212(c) of the Immigration and Nationality Act (8 U.S.C. 1182(c)); and more than half of the aliens who applied for such discretionary relief were granted waivers. On April 24, 1996, Congress enacted the AEDPA - the explicit goal of which was "to enhance the ability of the United States to deport criminal aliens." It sought to accomplish that goal in a number of ways, principally by expanding the category of criminal convictions that would render an alien ineligible for 212(c) relief. Under the new law, persons convicted of drug-related crimes, two or more offenses involving "moral turpitude," or an "aggravated felony" were ineligible to receive any waiver of deportation (or "removal" as it is now called), regardless of time served in prison.

A few months later, on September 30, 1996, Congress enacted the IRRIRA, which wrought further changes to the availability of deportation waivers and which radically reworked the role of the courts in immigration decisions by effectively removing any judicial review of final orders of deportation for certain classes of aliens convicted of "aggravated felonies." Specifically, the IRRIRA provided that "no court shall have jurisdiction to review any final order of removal" for aliens who had committed various crimes in the United States. (8 U.S.C. 1252(a)(2)(C)).

Although the two, highly complex laws had overlapping and to some degree inconsistent provisions, the INS took the position that the combined impact of both laws meant that no Federal court had jurisdiction to consider the correctness of the Executive Branchs determination that deportation was now automatic for a large category of legal immigrants with criminal records, no matter how or when their crimes had been adjudicated.

The Court granted certiorari in these two cases "in order to comprehensively consider whether aliens in the petitioners position may seek relief in the Court of Appeals (pursuant to 8 U.S.C. 1252(a)(1)); in the district court (pursuant to 28 U.S.C. 2241); or not at all." In separate rulings, the majority affirmed two recent Second Circuit decisions, Calcano-Martinez v. I.N.S, 232 F.3d 328 2nd Cir. 2000) and St. Cyr v. I.N.S., 229 F.3d 406 (2nd Cir. 2000) (See P&J, 12/25/00).

By identical 5-to-4 votes, the majority took issue with the INS position that the new laws stripped the Federal courts of all jurisdiction to review deportation orders - stressing that to leave aliens without a forum for adjudicating their constitutional and statutory challenges to removal orders would raise serious constitutional questions. Thus, in Calcano-Martinez the majority held that, while 1252(a)(2)(C) did strip the Courts of Appeal of jurisdiction to review direct appeals of removal orders, the federal courts may still hear habeas corpus petitions pursuant to 28 U.S.C. 2241 which challenge determinations of ineligibility for discretionary waivers made by the Board of Immigration Appeals. Then, in St. Cyr it held that immigrants who pled guilty to crimes in the years before the stringent new provisions took effect do not face automatic deportation, with no rights of judicial review, but can still seek exemptions under the old rules.

Calcano-Martinez involved the consolidated appeals of aliens from three different countries who were ordered deported for drug crimes in New York. The petitioners did not dispute that they were aliens with criminal convictions that rendered them deportable under the INA. Rather, they raised statutory challenges to the Attorney General's interpretation of the immigration laws under which they faced deportation and constitutional challenges to the statute itself - arguing principally that applying the IIRIRA and its new "permanent rules" retroactively to pre-enactment convictions violated their due process and equal protection rights under the Constitution. Thus, they argued that the Federal courts had jurisdiction to hear their claims - notwithstanding the language of the IIRIRA.

The Second Circuit agreed. After a lengthy analysis of the history and purpose of the IIRIRA, it held that the new permanent rules of the IIRIRA (which govern deportation proceedings initiated after April 1, 1997) "do not divest federal courts of jurisdiction to review a criminal alien's legal challenge to his or her removal order." The Supreme Court affirmed that ruling "in all particulars."

St. Cyr involved an appeal by a Haitian resident who was admitted to the United States as a lawful resident in 1986. Ten years later, on March 8, 1996, he pled guilty in a state court to a charge of selling a controlled substance in violation of Connecticut law. That conviction made him deportable. Under pre-AEDPA law applicable at the time of his conviction, St. Cyr would have been eligible for a 212(c) waiver of deportation at the discretion of the Attorney General. However, 212(c) waivers were effectively eliminated in 1996, and the Attorney General concluded that it no longer had the discretion to grant such waivers and the enactment of the AEDPA and the IIRIRA.

In his habeas corpus petition, St. Cyr argued that the restrictions on discretionary relief from deportation contained in the 1996 statutes did not apply to removal proceedings brought against an alien who pled guilty to a deportable crime before their enactment. The District Court (Judge Nevas) accepted jurisdiction and it then granted the writ on the merits, effectively holding that St. Cyrs removal should be governed by the laws that were in effect at the time he committed his crime. Thus, it held that St. Cyr was entitled to seek a waiver of deportation because such waivers were available, and quite likely to be successful, at the time of his plea. In accord with the decisions of four other Circuits, the Second Circuit affirmed.

Essentially, the case before the Supreme Court had two elements. The first was jurisdictional: Had the Federal courts been stripped of all jurisdiction to review the policy determination that waivers of deportation were no longer available? If the answer was no, the second question addressed the merits: Was the policy a correct interpretation of the law?

In agreeing with the Second Circuit that the Federal courts still retained habeas jurisdiction over challenges to removal orders, the majority rejected a number of arguments propounded by the INS that various provisions of the 1996 amendments foreclosed Federal habeas corpus jurisdiction under 2241. It noted, for example, that most of the statutory provisions cited referred to "judicial review" - a term, which it concluded, has a meaning that is historically distinct from "habeas corpus review." It also concluded that none of the cited provisions "speak[ ] with sufficient clarity to bar jurisdiction pursuant to the general habeas statute."

On the merits of St. Cyrs claim, the majority concluded that 212(c) relief "remains available for aliens, like respondent, whose convictions were obtained through plea agreements and who, notwithstanding those convictions, would have been eligible for 212(c) relief at the time of their plea under the law then in effect." The majority also said that the IIRIRAs elimination of any possibility of 212(c) relief for people who entered into plea agreements with the expectation that they would be eligible for such relief clearly attaches a new disability with respect to transactions or considerations already past. It continued that, given the frequency with which 212(c) relief was granted in the past, it would offend established considerations of fair notice, reasonable reliance, and settled expectations to hold that the IIRIRAs subsequent restrictions deprive them of any possibility of such relief.

Finally, the majority emphasized that any other interpretation of the AEDPA and the IIRIRA would raise serious and substantial questions under the Suspension Clause of the Constitution (Art. I, 9, cl. 2), which provides that "the Privilege of the Writ of Habeas shall not be suspended" except in times of war.

In a dissenting opinion, Justice Scalia complained that the majority was insisting on a formula of "magic words" from Congress and that, in any event, it was "utterly" clear that Congress did intend to remove Federal court jurisdiction over alien deportation proceedings. Unquestionably, unambiguously, and unmistakably, IIRIRA expressly supersedes 2241s general provision for habeas jurisdiction."

He also concluded that the removal of jurisdiction would not raise a constitutional problem under the Suspension Clause. His argument was that Congress had not "suspended" the writ (in the sense of temporarily withholding its operation); rather it had "permanently altered its content" - and, he continued, the prohibition against suspension does not guarantee "the existence of" the Writ of Habeas Corpus. In other words, it seems that in Justice Scalias mind, a prohibition against a temporary suspension of a constitutional right does not prohibit the permanent abolition of that right!

Justice Scalia was joined in his dissent by Justices Rehnquist, Thomas and OConnor - although, significantly, Justice OConnor did not sign the portion of Justice Scalias opinion that discussed the Suspension Clause issue.

Bracy v. Schomig, 248 F.3d 604 (7th Cir. 2001) (Judge Posner)

In this case, William Bracy and Roger Collins were convicted in 1981 in an Illinois state court of three gangster-style murders; and they were sentenced to death. The presiding judge at their trial, Thomas J. Maloney, was later convicted of various offenses relating to his having taken bribes from criminal defendants during and around the period that covered the trial of Bracy and Collins. While there were no allegations that Judge Maloney had solicited or received bribes from the petitioners in this case, they argued that "he habitually came down harder on defendants who had not bribed him than he would have done had he not been taking bribes." (Id., at 605). He did this, they argued, "both to deflect any suspicion that might arise, in the cases in which he had accepted bribes and as a result acquitted or gone easy on the defendants, that he was soft on criminals (which might endanger his reelection), and to increase the size and frequency of the bribes offered him." (Id.)

Judge Maloneys alleged bias was raised by Bracy and Collins in their state appeals; and after they lost their state appeals, they sought Federal habeas corpus relief. That, too, was denied at the district court level; and a divided panel from the Seventh Circuit affirmed in Bracy v. Gramley, 81 F.3d 684 (7th Cir. 1996).

The Supreme Court, however, reversed, in Bracy v. Gramley, 520 U.S. 899 (1997) (Bracy I), ruling that Bracy had made a sufficient showing that the presiding judge at his trial had violated his rights to a fair trial; and therefore he was entitled to more discovery to establish whether that judge had been biased enough against him (in his efforts at covering-up his own corruption) as to warrant a new trial. In a decision written by Chief Justice Rehnquist (a firm supported of the death penalty), the Supreme Court stated that "if it could be proved, such compensatory, camouflaging bias on Maloney's part in petitioner's own case would violate the Due Process Clause of the Fourteenth Amendment." (Bracy I, id., at 905).

Certainly, though, the Supreme Court concluded that Bracy had presented enough evidence of such compensatory bias as to entitle him to seek additional evidence through discovery. It pointed to a lot of unsavory details - such as the fact that Bracys trial counsel, one Robert McDonnell, who was appointed by Judge Maloney, was a twice convicted felon who had been a former law partner of the Judge Maloney; and it speculated that McDonnell "might have been appointed with the understanding that he would not object to, or interfere with, a prompt trial, so that petitioner's case could be tried before, and camouflage the bribe negotiations in," a contemporaneous case before Maloney. (Bracy I, id., at 908).

So the case went back to the district court where lots more unsavory details about Judge Maloney were uncovered. For example, Judge Rovner noted in her dissent in the instant case that : "An FBI analysis of Maloney's finances reveals that his expenditures in the years 1978 to 1984 exceeded his known, legitimate income in those years by some $ 400,000. . . . Assuming that the typical bribe was in the $ 5,000 to $ 10,000 range, then Maloney may have fixed at least 40 cases, and perhaps as many as 80 during those years." (Id., at 610).

After hearing the evidence presented by the petitioners, the district court (Judge Hart) denied a new trial on the issue of guilt, but held that Bracy and Collins were entitled to a new sentencing hearing. (See, U.S. ex rel. Collins v. Welborn, 79 F.Supp.2d 898 (N.D.Ill. 1999)). The parties cross-appealed; and once again, in the instant decision, a divided panel from the Seventh Circuit affirmed.

Writing for the majority, Judge Posner concluded that "even if [Judge] Maloney engaged in compensatory bias in some cases, this would not be enough to justify a conclusion that the petitioners had been convicted and sentenced in violation of the due process clause; the petitioners would have to prove that Maloney had been biased (actually biased, as the [Supreme] Court said) at their trial." (Id., at 606).

Judge Rovner was not persuaded. She wrote: "My colleagues believe that in the absence of any proof establishing the taint of compensatory bias in this particular case, we should assume that Maloney gave Bracy and Collins a fair trial. I remain puzzled as to the justification for this." (Id., at 616)

Sure, she acknowledged, the petitioners may have failed to provide "hard proof" that "camouflaging bias was at work in this case." (Id., at 612). However, she argued, "[w]e have a duty at this juncture to consider not only whether Bracy and Collins have succeeded in proving actual bias, but also whether, in light of what their discovery has (and has not) produced, the burden we have assigned to them is a realistic and appropriate one." (Id., at 615-16) (Emphasis added).

Then, with impeccable logic, she pointed out that "[a]bsent a lopsided record, the only hard proof of compensatory bias can issue from the judges own mouth" and here Judge Maloney did not even admit his own bribe taking. (Id., at 614).

Without reading her dissent in full, it is hard to capture the magnitude or intensity of her criticism of the majoritys decision. Clearly, though, its most disturbing feature was Judge Rovners blunt assessment that there were unstated reasons "lurking" behind the majoritys decision to impose an unrealistic and unattainable burden of proof on the petitioners as the price of getting a new trial.

She wrote: "The driving factor behind the court's presumption that Maloney was impartial when not bribed is the same one that has lurked in the background since the start of this case - our reluctance to set a precedent that might undo the convictions of all those persons who were tried and convicted before Maloney. . . .

"That view, however, underestimates the profound damage that a corrupt judge inflicts by shaking the public faith in the fairness of our judicial process. Ignoring the impact that a judge's systematic acceptance of bribes has upon cases in which no bribe was tendered will simply magnify the distrust that results from official corruption. . . .

"Even defendants who managed to initially escape conviction by successfully bribing Maloney are being given exactly what Bracy and Collins seek today - a fair trial before an honest and impartial judge. . . . But these two petitioners, sentenced to death before a judge whose career as an attorney and judge was corrupt from beginning to end, are told that the judgment of a racketeer is perfectly satisfactory. It is a sad day indeed when defendants who attempted to purchase their way out of a conviction receive a greater measure of justice than those who did not. I respectfully dissent." (Id., at 616-617).

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