Federal Criminal Law Newsletter - March 7, 2005 - Vol. 12, Nos. 9 & 10 - Punch and Jurists

Note: This Visitor's version of Punch and Jurists does not include all the cases covered in the Member's version. In addition, while the Member's version contains links to the full text of all of the decisions noted below, that feature is not available in the Visitor's Edition. Thus, while the names of some of the cases cited below may be highlighted in blue, they are not hypertext-linked to the official decision in this Visitor's Edition of Punch and Jurists.

Booker Boxscore
Past Week's New Decisions - 132	Total Since Jan. 12, 2005 - 481

The pace of new lower court decisions interpreting the Supreme Court’s landmark decision in U.S. v. Booker, 125 S.Ct. 736 (Jan. 12, 2005) continues to dominate the dockets of the lower courts; and to help keep track of the sheer volume of these rulings, we continue to post all of the significant new lower-court Booker decisions (both published and unpublished) on our special Booker Resource Center at www.ussguide.com/members/BulletinBoard/Booker/index.cfm/, where we list, on a daily basis, the cases and case summaries for each Circuit in alphabetical order.

The United States Sentencing Commission has released the latest of its periodic updates analyzing the post-Booker cases. The study (which we have posted online) covers 5,202 sentencings imposed in the nine week period from Jan. 12, 2005 through Mar. 15, 2005. It shows that 62.1% of the sentences imposed were within the range recommended by the Guidelines (compared to 65.0% during fiscal year 2002). Another 22.3% of those sentences were Government sponsored below-range departures (most of which were the result of § 5K1.1 substantial assistance departures). Interestingly, the number of upward departures from the Guideline sentencing range has more than doubled - from 0.8% (during the entire 2002 fiscal year) to 1.9% (during the first two months following Booker).

As we begin to move from the initial Booker phase that has focused principally on whether defendants were entitled to a remand as a result of Booker, to a new phase that is starting to address the impact of Booker on resentencing, the courts are beginning to touch on an extremely important due process/ex post facto argument. In simple terms, that argument posits that a post-Booker sentence for a crime committed prior to Jan. 12, 2005 cannot be higher than the top of the applicable guideline range applicable at the first sentencing without violating the Ex Post Facto Clause.

Technically, the Ex Post Facto Clause is a limitation on laws passed by the Legislative Branch. The Clause provides that "no state shall. . . pass any ... ex post facto law.” U.S. Const, art. 1, § 10, c1. 1. As such, the Clause does not of its own force apply to rulings of the Judicial Branch of the Government - such as Booker.

However, the Supreme Court has held, in Bouie v. Columbia, 378 U.S. 347 (1964), that judicial enlargement of a criminal statute, applied retroactively, violated the Due Process Clause because it was unforeseeable and like an ex post facto law. Then, in Rogers v. Tennessee, 532 U.S. 451 (2001), the Supreme Court clarified that doctrine, making clear that, while the Ex Post Facto Clause does not of its own force apply to the Judicial Branch, the Due Process Clause encompasses the ex post facto principle of fair warning. On that basis, many commentators feel that due process principles will not permit a post-Booker sentence increase based on pre-Booker conduct.

To date there has been little judicial discussion of that ex post facto argument - but we believe that issue will predominate the next wave of Booker decisions in the coming months.

In U.S. v. Duncan, 2005 U.S. App. LEXIS 3269 (11th Cir. Feb. 24, 2005), the Eleventh Circuit addressed what it called a "creative argument" that the retroactive application of Booker’s remedial holding violates ex post facto principles. The defendant in that case cited the "fair warning" principles discussed in Rogers, and argued that Justice Breyer's remedial interpretation in Booker, if applied retroactively, would increase the sentence authorized by the jury's verdict to a maximum of life, and therefore would operate, in light of his life sentence, as an ex post facto law in violation of his due process rights. In rejecting that argument, the Court "readily" concluded that Duncan had sufficient warning "to satisfy the due process concerns articulated in Rogers v. Tennessee."

In U.S. v. Crosby, 397 F.3d 103 (2nd Cir. Feb. 2, 2005), the Second Circuit noted but did not intimate any view on the applicability of the Ex Post Facto Clause. More recently, in U.S. v. Pablo-Lepe, 2005 U.S. App. LEXIS 5262 (8th Cir. Mar. 31, 2005), the Eighth Circuit affirmed an above-Guideline-range sentence. In that unpublished decision, the Court considered a sentence imposed before Booker, where the district court apparently had decided in the wake of Blakely to declare the guidelines advisory and then "chose to impose a higher sentence" than the guidelines. In a three-paragraph per curiam opinion, the Eighth Circuit affirmed, stating simply that the sentence imposed "was neither unguided nor unreasonable." It is unclear however whether due process/ex post facto issues were even raised in Pablo-Lepe, and those issues clearly were not addressed by the 8th Circuit's cursory per curiam opinion.

The most detailed judicial discussion of the Booker ex post facto arguments that we have seen to date appears in Judge Goodwin’s noteworthy decision in U.S. v. Gray, 2005 U.S. Dist. LEXIS 4052 (S.D.W.Va. Mar. 17, 2005). In Gray, Judge Goodwin expressly declined "to reach the question of whether there would be ex post facto implications had this court sentenced the defendants to a term of imprisonment above their individual advisory Guideline ranges." However, he did present a comprehensive review and outline of the law on the topic; and presented a detailed analysis of the leading Supreme Court decisions on whether a judicial ruling, such as Booker, is subject to due process/ex post facto restraints.

Perhaps the most disturbing aspect of this search and seizure case was that the Federal government felt it necessary to intervene by filing an amicus brief, claiming that the United States had a “substantial interest” in the outcome of this decision. Here’s what happened.

This case arose out of a civil rights lawsuit for damages, pursuant to 42 U.S.C. § 1983, brought by Iris Mena, a diminutive 5'2" tall Salvadorian immigrant against Darin Muehler and Robert Brill, two police officers of the City of Simi Valley. Mena claimed that Muehler and Brill used excessive force and restrained her for an unreasonable period of time during a search of her home. The district court entered a verdict in favor of Mena; and that judgement was affirmed by the Ninth Circuit in a decision reported at Mena v. City of Simi Valley, 332 F.3d 1255 (9th Cir. June 23, 2003).

Muehler and Brill then appealed to the Supreme Court, which reversed by a unanimous vote.

Muehler and Brill had obtained a search warrant to locate one Raymond Romero, a suspected gang-member, who they believed was living at Mena’s house. Because they also believed that Romero was armed and dangerous, Muehler and Brill arranged for a dawn raid of Mena’s house by a SWAT team of eight heavily armed officers, clad in helmets and black vests.

At 7:00 a.m., on February 3, 1998, the SWAT team forcibly raided Mena’s home; rousted her from bed; handcuffed her; forced her to walk barefoot through a pouring rain and dressed only in her nightgown to a nearby garage; and then held her there for three hours, guarded by two heavily armed police officers, while they searched her home.

Significantly, Mena was not suspected of any wrongdoing; the police found nothing of significance in her bedroom; and, at the end of her ordeal, she was simply released. In addition, Romero, the object of the search, was ultimately found at his mother’s house. After being cited for possession of a small amount of marijuana, he too was released with any charges.

In an opinion written by the ailing Justice Rehnquist, the Supreme Court ruled that the police did not violate Mena’s rights when they detained her in handcuffs for three hours - even if there was no cause to believe she was involved in any crime. The Court also ruled that the police officers had not violated any of Mena’s rights when they questioned her during her detention about her immigration status. Rehnquist wrote:

In short, while this decision did not establish any groundbreaking law, the Court refused to require probable cause (or greater) to detain an occupant of a house searched pursuant to a warrant: that warrant is effectively carte blanche to detain house occupants. It will be interesting to see whether future interpretations of this case will limit its holding to situations in which (a) a search warrant was first obtained, (b) weapons were being sought, and (c) the object of the search was a suspected dangerous and armed gang member.

The broad sweep of this decision can best be gleaned from the amicus brief filed by the Solicitor General of the United States, who argued:

This is one of those roll-your-eyes cases that shows the gradual but inexorable erosion of the once Great Writ of habeas corpus. In place of rules and procedures that were once relatively straight-forward and user-friendly, the courts and Congress have devised a legal landscape that is now pockmarked with land-mines, that weaves and bobs between pedantic and inscrutable rules, and that is often devoid of logic or purpose. The result has been to confound the pro se prisoner, confuse the defense bar, and even overwhelm the courts with a morass of procedural ploys that often defy comprehension. Sadly, that morass often survives the Supreme Court’s most diligent efforts to bring clarity to the table - such as in the instant case.

In 1982, fourteen years before Congress imposed a statute of limitations on the filing of Federal habeas corpus petitions, the Supreme Court held, in Rose v. Lundy, 455 U.S. 509 (1982), that federal district courts may not adjudicate “mixed petitions” for habeas corpus, i.e., petitions containing both exhausted and unexhausted claims. The Court reasoned that interests of comity and federalism dictate that state courts must have the first opportunity to decide a petitioner’s claims. (Lundy, id., at 518-19). Thus, the Supreme Court imposed a requirement of “total exhaustion” and directed federal courts to effectuate that requirement by dismissing mixed petitions without prejudice and allowing petitioners to return to state court to present the unexhausted claims to that court in the first instance.

The enactment of the Antiterrorism and Effective Death Penalty Act (“AEDPA”) in 1996 dramatically altered the landscape for federal habeas corpus petitions. The AEDPA preserved Lundy’s total exhaustion requirement (see 28 U.S.C. § 2254(b)(1)(A)) (“An application for a writ of habeas corpus . . . shall not be granted unless it appears that . . . the applicant has exhausted the remedies available in the courts of the State”), but it also imposed a one-year statute of limitations on the filing of federal petitions (28 U.S.C. § 2244(d)).

Although the AEDPA provided that the new one-year limitations period is tolled during the pendency of a “properly filed application for State post-conviction or other collateral review,” (28 U.S.C. § 2244(d)(2)), the Supreme Court made clear in Duncan v. Walker, 533 U.S. 167, 181-182 (2001) that the filing of a petition for habeas corpus in Federal court does not toll the statute of limitations.

As a result of the interplay between AEDPA’s one-year statute of limitations and Lundy’s dismissal requirement, petitioners who file “mixed” petitions in the federal courts run the risk of forever losing their opportunity for any Federal review of their unexhausted claims. If a petitioner files a timely but mixed petition in a Federal district court, and the district court dismisses it under Lundy after the limitations period has expired, that usually means the end of any further Federal review.

In an attempt to solve that quandary, the district courts crafted a number of different procedures designed to give the petitioner a chance to have his Federal claims heard. One of the principal procedures used became known as the “stay-and-abeyance” procedure, under which the district court “stayed” the habeas petition and held it in abeyance while the petitioner returned to the state court to exhaust his previously unexhausted claims. Once the petitioner exhausted his state remedies, the district court would lift the stay and allow the petitioner to proceed in Federal court.

In the instant case, the petitioner, Charles Rhines, was convicted in South Dakota state court of first-degree murder and sentenced to death. His conviction became final on December 2, 1996, after which Rhines filed a petition for state habeas corpus. After the state courts denied that petition, Rhines filed a pro se petition for Federal habeas corpus pursuant to 28 U.S.C. § 2254 on February 22, 2000. Because the 1-year statute of limitations imposed by the AEDPA was tolled while Rhines’ state habeas corpus petition was pending, he still had more than 11 months left before the expiration of the limitations period.

Then, with the assistance of court-appointed counsel, Rhines filed an amended petition for writ of habeas corpus and statement of exhaustion on November 20, 2000, asserting 35 claims of constitutional defects in his conviction and sentence. On July 3, 2002, approximately 18 months after Rhines had filed his amended Federal habeas corpus petition, the district court held that 8 of the 35 claims had not been exhausted. By that time, the AEDPA’s one-year statute of limitations had run, so Rhines moved the district court to hold his pending habeas petition in abeyance while he presented his unexhausted claims to the South Dakota courts. The district court granted that motion and issued a stay “conditioned upon petitioner commencing state court exhaustion proceedings within sixty days of this order and returning to this court within sixty days of completing such exhaustion.”

In compliance with that order, Rhines filed his second state habeas corpus petition on August 22, 2003. The state, however, appealed the district court’s stay; and, in a decision reported at Rhines v. Weber, 346 F.3d 799 (8th Cir. 2003), the Eighth Circuit vacated the stay. It held that "a district court has no authority to hold a habeas petition containing unexhausted claims in abeyance absent truly exceptional circumstances."

The Supreme Court then granted certiorari to resolve a split among the Circuits regarding the propriety of the “stay-and-abeyance” procedure. More specifically, the Court considered “whether a federal district court has discretion to stay the mixed petition to allow the petitioner to present his unexhausted claims to the state court in the first instance, and then to return to federal court for review of his perfected petition.”

On appeal, the Supreme Court reversed, holding that the Eighth Circuit had erred “to the extent it concluded that stay and abeyance is always impermissible.” The Court acknowledged that the stay and abeyance procedure, “if employed too frequently,” creates its own problems - namely that it not only frustrates the AEDPA’s objective of encouraging finality by allowing a petitioner to delay the resolution of the federal proceedings, but it also undermines AEDPA’s goal of streamlining federal habeas proceedings by decreasing a petitioner’s incentive to exhaust all his claims in state court prior to filing his Federal petition.

Nevertheless, the Court agreed that the stay and abeyance procedure should be available “in limited circumstances.” Writing for a unanimous Court Justice O’Connor explained those circumstances as follows: first, that "stay and abeyance is only appropriate when the district court determines there was good cause for the petitioner's failure to exhaust his claims first in state court." Second, even where there is good cause for the failure to exhaust, a district court should not employ the stay-and-abeyance procedure "when [the petitioner's] unexhausted claims are plainly meritless."

Continuing its weaving and bobbing, the Court then further qualified its acceptance of the stay and abeyance procedure by stating that even when a district court stays a mixed petition to allow the petitioner to exhaust the unexhausted claims in state court, it "should place reasonable time limits on a petitioner's trip to state court and back" - a caveat that it took from the Second Circuit’s decision in Zarvela v. Artuz, 254 F.3d 374 (2d Cir. 2001) - although the Court pointedly did not adopt all of the holdings from Zarvela.

Justice Stevens and Justice Souter each wrote a short, one-paragraph concurrence, the gist of which was to criticize the "good cause" requirement to the extent it added another level of uncertainty to already overburdened habeas rules. As Justice Stevens wrote, "While I join the Court's opinion, I do so on the understanding that its reference to 'good cause' for failing to exhaust state remedies more promptly . . . is not intended to impose the sort of strict and inflexible requirement that would 'trap the unwary pro se prisoner’."

In sum, the decision adds some clarification to the habeas rules - namely, that the stay and abeyance procedure is not always impermissible. After that, it is clear that the habeas petitioner takes a risk in raising in the Federal courts claims that have not been fully exhausted at the state level. It is also clear that this decision does not do much to clarify the overall morass of rules that plague habeas litigation.

In his dissent, Justice Souter described the issues before the Court in this case as follows:

The Ninth Circuit agreed with Justice Souter’s evaluation of the errors that occurred in this case; and, in a decision reported at Payton v. Woodford, 346 F.3d 1204 (9th Cir. 2003), it ordered a new trial for William Payton, who was convicted of murder and rape. By a vote of 5-to-3, the Supreme Court reversed. Relying primarily on its prior decision in Boyde v. California, 494 U.S. 370 (1990), the majority held that a jury considering a possible death sentence need not be told explicitly that it must consider favorable post-crime evidence as a mitigating factor. If a jury is instructed in sufficiently broad terms to consider all mitigating evidence, that will embrace post-crime as well as pre-crime mitigation.

Effectively, this decision was all about the proper standard for review of state habeas corpus decisions under 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Under that standard, a federal judge must leave in place a state-court decision unless the federal judge believes that it is “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.”

While all the Justices (with the exception of Justice Scalia) conceded that the state prosecutor had committed error, a majority of the Court concluded that “even on the assumption that [the state court’s] conclusion was incorrect, it was not unreasonable” under the standards contained in § 2254(d); and thus the Ninth Circuit erred in granting habeas relief because the California state court decision was “just the type of decision that AEDPA shields on habeas review.”

Court	This Week	Year to Date	Since 1996
Courts of Appeal	81	428	21,616
District Courts	71	260	12,071


*Vol. 12, Nos. 9 & 10*	*Covering Cases Published in the Advance Sheets through Mar. 7, 2005*