Vol. 12, No. 23	Covering Cases Published in the Advance Sheets through June 6, 2005

Booker

• The number of new Booker-related decisions continues to rise dramatically. Last week the lower courts produced another of 205 new Booker decisions (both published and unpublished - although the great bulk of the new decisions were unpublished). This raises the total number of lower-court Booker-related cases to 1932 since January 12, 2005 (and that does not count the 757 cases in which the Supreme Court has already granted certiorari, vacated and remanded).

Supreme Court

With a whimper, compared to past years, the Supreme Court ended its current term by handing down a number of rulings on a series of relatively obscure criminal issues. Because most of these rulings were highly fact-specific, collectively they will do little to provide meaningful guidance and direction to the field of criminal law; some of them will probably confuse, rather than clarify, the law; and a few will even confound both the lawyers and the lower court judges for some time to come.

• In Rompilla, the Supreme Court held, by a 5-to-4 vote, that even when a capital defendant’s family members and the defendant himself have suggested that no mitigating evidence is available, his lawyer is bound to make reasonable efforts to obtain and review material that counsel knows the prosecution will probably rely on as evidence of aggravation at the sentencing phase of trial.
  
  
• In Stumpf, the Court unanimously held that the defendant had entered into a knowing guilty plea, despite the trial court’s failure to explain the specific intent to cause death element of the aggravated murder charge, because the elements of the crime were explained to him by his counsel, and the defendant confirmed that fact on the record.
  
  
• In Halbert, the Court, by a 6-to-3 vote, vacated as unconstitutional a Michigan statute that denied court appointed counsel to persons plead guilty to a crime and thereafter seek permission to appeal.
  
  
• In Dodd, the Court held, by a vote of 5-to-4, that the 1-year limitation period for a federal prisoner to file a motion to vacate his sentence, under 28 U.S.C. § 2255, begins to run on the date in which the Supreme Court "initially recognized" the right asserted in an applicant's motion, not the date on which that right was made retroactive.
  
  
• In Felix, a case dealing with the “relation back” provisions of Rule 15(c) of the Fed.R.Civ.P, the Court ruled, by a 7-2 vote, that an amended habeas petition cannot avoid the federal habeas one-year filing deadline, when it makes a new claim that is based on facts differing from those in the original pleading.
  

• The Supreme Court’s final two criminal law decisions from the 2004-2005 term (namely, Gonzalez v. Crosby, No. 04-6432 (June 23, 2005) and Bell v. Thompson, No. 04-514 (June 27, 2005)) will be reviewed in next week’s issue of P&J.

U.S. v. Booker - Update

In an effort to cover fully the final decisions from the Supreme Court’s 2004-2005 term, we have foregone any discussion of the latest Booker developments this week; and direct our readers to our coverage of those developments on our Website at www.ussguide.com/members/BulletinBoard/Booker/index.cfm/.

Halbert v. Michigan, No. 03-10198 (U.S. Sup. Ct. June 23, 2005) (Justice Ginsburg)

In Douglas v. California, 372 U.S. 353 (1963), the Supreme Court held that, in criminal proceedings, a State must provide counsel for an indigent defendant in a first appeal as of right. Then, in Ross v. Moffitt, 417 U.S. 600 (1974), the Court held that a State need not appoint counsel to aid a poor person in discretionary appeals to the State's highest court, or in petitioning for review in the Supreme Court.

This case dealt with the interplay between those two rulings, on the one hand, and a Michigan statute that denies appointed appellate counsel to indigent defendants who are convicted by a plea, on the other hand.

In 1994, Michigan voters approved a proposal amending the State Constitution to provide that "an appeal by an accused who pleads guilty or nolo contendere shall be by leave of the court." Mich. Const., Art. 1, § 20. Thereafter, several Michigan state judges began to deny appointed appellate counsel to indigents who were convicted by plea.

In the instant case, Antonio Halbert pled "no contest" to two charges of sexual misconduct with a minor. Halbert had hoped to serve concurrent sentences, but the prosecution requested and the trial judge ordered consecutive sentences. Halbert requested an appointed attorney to help him with an appeal, but was denied. He then tried, unsuccessfully, to appeal his sentence in the Michigan courts without the assistance of counsel.

On appeal, he argued that Michigan's law and practice of not appointing counsel to indigent defendants convicted by guilty plea, violates his Fourteenth Amendment right to due process. By a vote of 6-to-3, the Supreme Court agreed. Writing for the majority, Justice Ginsburg observed:

“Navigating the appellate process without a lawyer's assistance is a perilous endeavor for a layperson, and well beyond the competence of individuals, like Halbert, who have little education, learning disabilities, and mental impairments. . . . Appeals by defendants convicted on their pleas may involve ‘myriad and often complicated’ substantive issues, and may be ‘no less complex than other appeals.’ One who pleads guilty or nolo contendere may still raise on appeal ‘constitutional defects that are irrelevant to his factual guilt, double jeopardy claims requiring no further factual record, jurisdictional defects, challenges to the sufficiency of the evidence at the preliminary examination, preserved entrapment claims, mental competency claims, factual basis claims, claims that the state had no right to proceed in the first place, including claims that a defendant was charged under an inapplicable statute, and claims of ineffective assistance of counsel’." (Internal citations omitted).

Justice Ginsburg also observed that “Michigan's very procedures for seeking leave to appeal after sentencing on a plea, moreover, may intimidate the uncounseled.” Based on those premises, the majority held that the Michigan law was unconstitutional at least as applied to Halbert.

In a dissent that was joined by Justices Rehnquist and Scalia, Justice Thomas argued that the right to appointed counsel is waivable and that it had been validly waived in this case. He wrote: “Far from being an ‘arbitrary’ or ‘unreasoned’ distinction, Michigan's differentiation between defendants convicted at trial and defendants convicted by plea is sensible.”

Dodd v. U.S., No. 04-5286 (U.S. Sup. Ct. June 20, 2005) (Justice O’Connor)

This case represents the latest attempt by the Supreme Court to resolve another of the many ambiguities created by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) in the field of habeas litigation. The underlying general question addressed by the Court in this case was when the new one-year statute of limitations specified in ¶ 6 of 28 U.S.C. § 2255 begins to run.

More specifically, the Court focused on the meaning of the third of the four events described in the statute - namely ¶(3) which states that the one-year period begins to run on “the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review.” (Emphasis added).

That issue arose in the present case under the following circumstances. Michael Dodd was convicted in 1993 of engaging in a continuing criminal conspiracy, in violation of 21 U.S.C. §§ 841 and 846. On April 4, 2001, more than three years after his conviction became final, Dodd filed a pro se motion under 28 U.S.C. § 2255 seeking to set aside his conviction based upon the Supreme Court’s decision in Richardson v. United States, 526 U.S. 813 (1999). Richardson held that a jury must agree unanimously that a defendant is guilty of each of the specific violations that together constitute the continuing criminal enterprise.

Dodd argued, among other things, that he was entitled to relief because his jury had not been instructed that they had to agree unanimously on each predicate violation. The district court dismissed Dodd’s §2255 motion as time barred. Because Richardson had been decided more than one year before Dodd filed his motion, the court held that the motion was untimely; it also rejected Dodd’s request for equitable tolling.

Dodd appealed, arguing that the limitation period in §2255, ¶6(3), did not begin to run until April 19, 2002, when the Eleventh Circuit held, in Ross v. United States, 289 F.3d 677, that the right recognized in Richardson applies retroactively to cases on collateral review. The Eleventh Circuit rejected Dodd’s argument and held that the limitation period began to run on “the date the Supreme Court initially recognizes the right” (i.e., the date on which Richardson was decided). Accordingly, it affirmed the dismissal of Dodd’s motion as time barred. Dodd v. U.S., 365 F.3d 1273, 1283 (11th Cir. Apr. 16, 2004) (Dodd I).

In so ruling, the Eleventh Circuit joined with the position adopted by the Fifth Circuit - and approved in dicta by the Second and Eighth Circuits.

Not surprisingly, five Circuits have disagreed with that approach (the Third, Fourth, Sixth, Seventh, and Ninth Circuits). Those Circuits have reasoned that the one-year period does not begin to run until the particular Circuit court has determined that the Supreme Court ruling at issue applies to cases on collateral review - since otherwise many petitioners would never be able to raise their claims at all because the statute of limitations would have expired before they could even file their petitions.

In this results-oriented decision, the majority held, by a vote of 5-to-4, that Dodd’s petition was untimely. Effectively, it dismissed as irrelevant the second clause of ¶ 6(3) (i.e., the language that states “and made retroactively applicable to cases on collateral review”), and concluded that the first clause “unequivocally identifies one, and only one, date from which the 1-year limitation period is measured: ‘the date on which the right asserted was initially recognized by the Supreme Court’.”

With notable understatement, the majority acknowledged that its ruling “makes it difficult for applicants filing second or successive §2255 motions to obtain relief” and “has the potential for harsh results.” But, heck, it sure will conserve judicial resources by saving the courts from a lot of appeals.

There were two separate dissents, one written by Justice Stevens and one by Justice Ginsburg - on behalf of themselves and Justices Souter and Breyer. Justice Stevens cut through the obtuse logic of the majority, stating:

“Under the majority’s interpretation, the statute of limitations thus expired on June 1, 2000, one year after we recognized the new rule. The Eleventh Circuit, however, did not decide whether Richardson was retroactive until April 19, 2002.6 See Ross v. United States, 289 F.3d 677 (CA11 2002). Thus, Dodd would not, under the majority’s interpretation, have been able to raise his claim at all, since the statute of limitations expired before he could have taken advantage of ¶6(3)’s 1-year grace period. . . .

“It would make no sense for Congress . . . both to recognize a potential basis for habeas relief and also to make it highly probable that the statute of limitation would bar relief before the claim can be brought. . . . It is this absurd result that convinces me that Congress could not have intended that ¶6(3) should be read in this manner. Even if the text is as clear as the majority claims (a proposition I reject), we should still interpret the text in a manner that would avoid such an absurd result. . . .

“To avoid this result, I would interpret ¶6(3) to begin to run only when the Supreme Court has initially recognized the new right and when that right has been held to be retroactive. Under this interpretation, the statute of limitation would not begin to run until the prisoner was actually able to file a petition under ¶6(3), which is the only interpretation Congress could have intended.

“In addition to creating the perverse result that the statute of limitations will run before a prisoner can file an initial habeas petition, the Court’s myopic reading of ¶6(3) effectively nullifies 28 U.S.C. § 2244(b)(2)(A), which allows prisoners to file second or successive applications based on a retroactive rule.10 As the majority recognizes in what amounts to a dramatic understatement, its interpretation of ¶6(3) “makes it difficult for applicants filing second or successive §2255 motions to obtain relief.”

The Supreme Court’s wordy ruling in the Felix case is not the only time that the courts have struggled with some of the inconsistencies that result from Congress’ constant efforts to create new laws or amend existing laws for some very specific and politically appealing reason - without also addressing the impact of those laws on existing rules and procedures. Recently, Judge Boyce Martin made the following comments about some other idiosyncracies in the Federal Rules of Civil Procedure:

“If a ten-day period and a fourteen-day period start on the same day, which one ends first? Most sane people would suggest the ten-day period. But, under the Federal Rules of Civil Procedure, time is relative. Fourteen days usually lasts fourteen days. Ten days, however, never lasts just ten days; ten days always lasts at least fourteen days. Eight times per year ten days can last fifteen days. And, once per year, ten days can last sixteen days. And this does not even take into account inclement weather. As we sometimes say in Kentucky, there's eight ways to Sunday.” Judge Boyce Martin in Miltimore Sales, Inc. v. International Rectifier, Inc., No. 04-1488, 2005 U.S. App. LEXIS 12111 (6th Cir. June 23, 2005).

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