Vol. 12, Nos. 24 & 25	Covering Cases Published in the Advance Sheets through June 20, 2005

Booker

• In the first six months following the Supreme Court’s issuance of its groundbreaking sentencing decision in U.S. v. Booker, the number of reported lower-court cases applying and interpreting Booker has reached 2,251 - a number that must be a record in modern day jurisprudence for the most Supreme Court citations within the shortest period of time.

Supreme Court

• Thompson is one of those results oriented rulings that is so burdened with a complicated procedural history and so obfuscated with verbose legalese that it takes a while just to comprehend its patently senseless result. Technically, the Court held, by a 5-to-4 vote, that the Sixth Circuit had abused its discretion by reversing an earlier ruling and ordering a new trial for Gregory Thompson after becoming aware of previously undiscovered evidence which indicated that Thompson had been suffering from a serious mental illness at the time of his 1985 capital trial. The majority said that the newly discovered evidence did not “come close” to satisfying the Court’s “miscarriage of justice standards,” that Tennessee had spent considerable time and resources in seeking to execute Thompson, and that the Sixth Circuit had failed to accord “the appropriate level of respect” to the Tennessee state court rulings. In a passionate dissent, Justice Breyer wrote: “When we tell the Court of Appeals that it cannot exercise its discretion to correct the serious error it discovered here, we tell courts they are not to act to cure serious injustice in similar cases.”
  
  
• Gonzalez is one of those made-in-hell technical habeas decisions that is tailor-made for insomniacs and the demented. Here, the Court addressed the momentous question of whether all Rule 60(b) motions for relief from a ruling of a district court denying a habeas petition automatically constitute prohibited “second or successive” habeas petitions within the meaning of 28 U.S.C. § 2244(b). By a 7-to-2 vote, the Court held that those Rule 60(b) motions which do not contain a “claim,” but rather address some non-merits aspect of the original habeas proceedings, do not run afoul of the AEDPA’s prohibition on second or successive petitions.
  

A Wiretap Suppression Upheld !!!!

• At a time when the Government is seeking to expand dramatically its powers to wiretap suspects without any judicial oversight, the Gonzalez, Inc. decision is a rare throw-back to the days when it took more than a prosecutor’s unadorned wish to obtain a wiretap order. The decision is also a great source of memorable quotations about the role of the Judiciary in protecting the rights of the innocent against unwarranted invasions of their privacy - a role that seems to becoming increasingly irrelevant under the ever-expanding aegis of the Patriot Act and America’s war against terrorism.

U.S. v. Booker - Update

Six months after the Supreme Court issued its groundbreaking sentencing decision in U.S. v. Booker, 125 S.Ct. 738 (Jan. 12, 2005), the number of lower court decisions (both published and unpublished) interpreting and applying Booker has risen to an astonishing 2251 - an average of 375 new decisions each month. Not only has Booker dominated the courts’ dockets for the past six months, it has set off a huge - and at times highly contentious - political debate regarding the roles of Congress and the Judiciary in sentencing. For example, the Chicago Tribune has reported that Rep. James Sensenbrenner (R-Wisc.) recently “demanded” that the Seventh Circuit change its decision in a narcotics case because he didn't believe a drug courier got a harsh enough prison term. (See, “Lawmaker prods court, raises brows,” by Maurice Possler, Chicago Tribune, July 10, 2005.)

We will continue to maintain our Circuit-by-Circuit listing of all the new critical Booker decisions from each Circuit (including noteworthy decisions from the district courts), at our special Booker Resource Center on the Internet at www.ussguide.com/members/BulletinBoard/Booker/index.cfm/. We will also continue to post the total number of new Booker decisions published each week to show the impact of Booker on the Federal courts. However, as of this week, we will no longer publish the complete alphabetical listing of every new Booker decision - principally because the great bulk of those new decisions are categorized as “unpublished” - meaning that they have little precedential value in the development of the post-Booker jurisprudence.

Professor Doug Berman, the reigning Booker guru, has noted some interesting Booker-related dicta in Justice Ginsburg’s majority opinion in Halbert v. Michigan, No. 03-10198 (2005 U.S. LEXIS 5012, June 23, 2005) (P&J, 06/06/05). The primary holding of Halbert was that a defendant who has pled guilty has the constitutional right to appointed counsel on his first appeal, even where the state has made that appeal a discretionary one rather than one that the defendant is entitled to as a matter of right.

In reaching the conclusion that Halbert's right to counsel was violated when Michigan refused to appoint counsel to help him file a leave to appeal application, Justice Ginsburg also rejected the state's claim that even if such a right existed, Halbert had waived that right when he pled nolo contendere to the charges against him. In so doing, Justice Ginsburg explained that "at the time he entered his plea, Halbert . . . had no recognized right to appointed appellate counsel he could elect to forgo," and she then cited as support Iowa v. Tovar, 541 U.S. 77 (2004) for the proposition that "waiver of the right to counsel, as of constitutional rights in the criminal process generally, must be a 'knowing, intelligent act done with sufficient awareness of the relevant circumstances’."

Those words did not escape Justice Thomas’ notice. In his dissent, he specifically acknowledged that, using Justice Ginsburg’s language, a legitimate argument could be made that appellate waivers entered into before Booker’s predecessor, Blakely v. Washington, 542 U.S. 296 (2004), are not enforceable because the defendant could not have knowingly and intelligently waived his Sixth Amendment right not to be sentenced under mandatory Guidelines before Blakely, since there was "no [such] recognized right" at that time.

Not only was his concern that Justice Ginsburg’s statement was "bound to wreak havoc" on other areas of waiver law, Justice Thomas specifically cited as an example of his concern the enforcement of appellate waivers in light of Booker. Laying out the argument for defense counsel, he wrote:

"For instance, suppose that a defendant waived the right to appeal his sentence after the regional Court of Appeals had held that the principle of Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), did not apply to the United States Sentencing Guidelines, but before this Court held the contrary in United States v. Booker, 543 U.S. ----, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). The defendant could claim that, in his circuit, the Sixth Amendment right against the application of the Guidelines was "no[t] recognized," and hence that the right was nonwaivable."

Not only can the argument now be made, Justice Thomas can be cited in support!

Bell v. Thompson, No. 04-514 (U.S. Sup. Ct. June 27, 2005) (Justice Kennedy)

Technically, the issue before the Court in this case was whether the Sixth Circuit had abused its discretion by withdrawing an opinion in a habeas case months after the ruling should have been made final and then staying the execution of Gregory Thompson based on previously undiscovered evidence from a psychiatrist that Thompson had been mentally impaired at the time of his crime and thus incapable of participating in his defense. Practically speaking, however, the real issue before the Court was whether the Court of Appeals had the inherent equitable power to correct an earlier mistake which the judges believed showed not only that their initial decision was wrong but that it would lead to a serious miscarriage of justice.

Thompson was convicted in 1985 of first degree murder; and he was sentenced to death. After losing his appeals in the Tennessee state courts, he filed for habeas relief in the federal district court, claiming that he had received ineffective assistance of counsel at trial because his counsel had failed to investigate and present evidence of his impaired mental ability.

After the federal district court denied his habeas petition, Thompson filed a Rule 60(b) motion, asking the district court to reconsider its denial in light of expert testimony that had inadvertently been omitted from the record presented to the district court. The district court denied the motion and, in a ruling reported at Thompson v. Bell, 315 F.3d 566 (6th Cir. Jan. 9, 2003) (Thompson I), the Sixth Circuit affirmed the denial of Thompson's habeas petition.

Acting on the assumption that Thompson had exhausted every avenue of appeal, the State of Tennessee set an execution date for August, 2004. However, in June 2004, the Sixth Circuit issued an amended opinion, reported at Thompson v. Bell, 373 F.3d 688 (6th Cir. June 23, 2004) (Thompson II), reversing its prior denial of habeas relief and remanding the case to the federal district court for consideration of new evidence.

The basis for this amended opinion in Thompson II was sheer happenstance. While reviewing various death penalty cases in preparation of a law review article on the subject, an intern in Judge Suhrheinrich’s chambers, who also happened to be a board certified psychiatrist, expressed concern about whether Thompson had been mentally impaired at the time of his trial and whether that information had been properly presented to the district court.

Those concerns led Judge Suhrheinrich to conduct his own review of the entire record in the case; and, after spending hundreds of hours going over that record, he wrote a 30,000 word opinion in which he concluded that it was incumbent on him, “as a judicial officer sworn to uphold the Constitution, and as authoring judge of the initial opinion, to reverse that ruling and issue this opinion.” (Thompson II, id., at 692).

While the full panel did not agree with all of Judge Suhrheinrich’s findings in Thompson II (concluding that he went too far in some of his accusations that a fraud had been perpetrated on the court), it did agree with his basic premise that “extremely probative” evidence concerning Thompson’s mental state at the time of his crime had never been considered by the district court. It thus concluded:

“Because the evidence here was apparently negligently omitted, because the evidence is so probative of Thompson's mental state at the time of the crime, because there is no surprise to respondent as it was his counsel who took the deposition [of Dr. Faye Sultan, a psychologist who examined Thompson before trial], and because this is a capital case, we believe that the circumstances of this case merit consideration of the Sultan deposition pursuant to our equitable power to supplement the record on appeal, despite the omission of [that] deposition from the District Court record. We therefore vacate the grant of summary judgment, and remand the case to the District Court for a full evidentiary hearing.” (Thompson II, id at 691).

Tennessee appealed to the Supreme Court, arguing that the Sixth Circuit was not allowed to change its mind - even if it discovered evidence that led it to believe it had made a huge mistake.

By a 5-to-4 vote, the Supreme Court agreed that the Sixth Circuit had indeed abused its discretion and that it had no power to stay the execution of Thompson. In tones normally reserved for its favorite punching bag - the damnable activist judges from the Ninth Circuit - the majority held that the Sixth Circuit had failed to “accord the appropriate level of respect” to the rulings of the Tennessee state courts; and it caustically reminded the Sixth Circuit that Tennessee had “expended considerable time and resources in seeking to enforce a capital sentence rendered 20 years ago, a sentence that reflects the judgment of the citizens of Tennessee that Thompson’s crimes merit the ultimate punishment.”

Besides, the majority reasoned, “[r]elevant though the Sultan evidence may be, however, it is not of such a character as to warrant the Court of Appeals’ extraordinary departure from standard appellate procedures.” If fact, the majority concluded, the Sultan evidence “would not come close to satisfying the miscarriage of justice standard” under prevailing Supreme Court precedent.

A visibly upset Justice Breyer read his dissenting opinion from the bench. He attacked the majority’s ruling on numerous grounds, and he concluded with these strong words:

“A legal system is based on rules; it also seeks justice in the individual case. Sometimes these ends conflict. To take account of such conflict, the system often grants judges a degree of discretion, thereby providing oil for the rule-based gears. When we tell the Court of Appeals that it cannot exercise its discretion to correct the serious error it discovered here, we tell courts they are not to act to cure serious injustice in similar cases. The consequence is to divorce the rule-based result from the just result. The American judicial system has long sought to avoid that divorce. Today’s decision takes an unfortunate step in the wrong direction.”

Gonzalez v. Crosby, No. 04-6432 (U.S. Sup. Ct. June 23, 2005) (Justice Scalia)

This is one of those “ugh” and “shrug” cases could accurately be described as the latest (but certainly not the last) of a long line of highly technical rulings addressing some of the many issues created by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) - and particularly its imposition of a one-year statute of limitations on habeas petitions.

The precise issue before the Court was whether and to what extent a motion for relief from judgment pursuant to Rule 60(b) of the Fed.R.Civ.P. constitutes a “second or successive” application for habeas relief within the meaning of 28 U.S.C. § 2244(b). The short answer is that not all Rule 60(b) motions for relief from a judgment of the district court automatically constitute “second or successive” petitions within the meaning of the AEDPA.

For the intrepid few who want to go on further and find out how the Supreme Court arrived at its momentous ruling, here’s what happened. In 1992, Aurelio Gonzalez pled guilty in a Florida state court to armed robbery, and he was sentenced to 99 years in prison. He did not file a direct appeal of his conviction or sentence, but in 1996 he filed a state habeas petition for the first time, arguing that his plea was involuntary because his counsel had advised him that if he pled guilty he would serve only 13 years.

After the state courts denied his petition, Gonzalez filed a federal habeas petition in 1998, asserting the same claim. The district court denied the petition as time barred because it was not filed within the one-year statute of limitations.

Then in 2000, the Supreme Court interpreted the meaning of the statutory limit on federal habeas petitions in Artuz v. Bennett, 531 U.S. 4 (2000), and held that an application for state postconviction relief can be "properly filed" even if the state courts dismiss it as procedurally barred. Gonzalez then filed in a district court a pro se "Motion to Amend or Alter Judgment," contending that the District Court's time-bar ruling was incorrect under Artuz's construction of § 2244(d), and invoking Rule 60(b)(6), which permits a court to relieve a party from the effect of a final judgment. The District Court denied the motion, and petitioner appealed.

In a 133-page long en banc decision reported at Gonzalez v. Secretary for the Department of Corrections, 366 F.3d 1253 (11th Cir. April 26, 2004), the Eleventh Circuit held that Gonzalez's Rule 60(b) motion was barred by the AEDPA. The court reasoned that the restrictions in the AEDPA "trumped" Rule 60(b) because the AEDPA applies specifically to habeas petitions and was enacted after Rule 60(b).

The Supreme Court granted certiorari and in the instant 7-to2 decision it held that “a Rule 60(b)(6) motion in a §2254 case is not to be treated as a successive habeas petition if it does not assert, or reassert, claims of error in the movant’s state conviction. A motion that, like petitioner’s, challenges only the District Court’s failure to reach the merits does not warrant such treatment, and can therefore be ruled upon by the District Court without precertification by the Court of Appeals pursuant to §2244(b)(3).”

Nevertheless, the Court also held that Gonzalez’ Rule 60(b)(6) motion failed to set forth an “extraordinary circumstance” justifying relief; and for that reason it affirmed the judgment of the Eleventh Circuit.

Justice Stevens, joined by Justice Souter, dissented from the Court's opinion. They agreed with the majority's premise that all Rule 60(b) motions are not necessarily second or successive habeas petitions but disagreed with the majority's disposition of Gonzalez' motion on the merits, contending that the merits of his motion were not before the Court and, indeed, had not even been fully briefed.

Felon in Possession Convictions Reversed: U.S. v. Ross, No. 04-2124 (7th Cir. 06/20/05) - In a case that must be read to realize the full import of the trial court’s blind acceptance of the Government’s case, the Seventh Circuit vacated the defendant’s conviction for being a felon in possession of a firearm after finding that the more than four-year variance between the jury instruction date and the indictment date was simply too unreasonable to stand; U.S. v. Holmes, No. 04-1007 (8th Cir. 07/07/05) - Here the Court vacated a conviction for being a felon in possession of a firearm on the grounds that the prosecutor engaged in “highly improper” conduct by stating, during the rebuttal phase of the closing arguments, that the defendant and his counsel should “get their stories straight,” which, the majority concluded, was tantamount to accusing defense counsel of conspiring with the defendant to fabricate testimony - an accusation that was unsupported by the evidence.

Forfeiture Motion Denied: U.S. v. King, 368 F.Supp.2d 509 (D.S.C. 5/11/05) - Some two weeks after the defendant was sentenced, the Government filed a motion requesting the court to enter an order of forfeiture of approximately $4 million in a drug case. Noting that the Government had failed to raise any issue regarding forfeiture at sentencing, and citing the provisions of Fed.R.Crim.P. 32.2(a) (which requires the Government to give notice to the defendant that it plans to seek the forfeiture of property as part of the sentence to be imposed), Judge Herlong concluded that it lacked the jurisdiction to enter a preliminary order of forfeiture or to amend the sentencing judgment subsequent to defendant’s sentencing.

Guidelines - Double Counting: U.S. v. Schmeilski, 408 F.3d 917 (7th Cir. 2005) - “[A]lthough premising multiple enhancements on 'identical facts' constitutes impermissible double counting, the presence of some overlap in the factual basis for two or more upward adjustments does not automatically qualify as double counting. When two enhancements address distinct aspects of the defendant's conduct, the application of both does not constitute double counting.” (Id., at 919) (Internal Citations omitted).

Guidelines - Substantial Assistance: U.S. v. Pepper, No. 04-2057 (8th Cir. 06/24/05) - The Court held that the Federal Sentencing Guidelines do not permit a district court to consider matters unrelated to the defendant's assistance to law enforcement officials when determining how far to depart below the Guidelines range pursuant to a departure motion based on the defendant's assistance.

Right to Counsel: U.S. v. Taylor, No. 04-4104 (4th Cir. 07/11/05) - Here the Court held that a criminal defendant does not have a federal constitutional right to effective assistance of counsel with regard to a post-conviction, post-direct appeal motion for reduction of sentence made by the government pursuant to Federal Rule of Criminal Procedure 35(b) - stating that “neither the Constitution's equal protection guarantees nor due process guarantees provide criminal defendants a right to effective assistance of counsel with respect to a motion by the government pursuant to Rule 35(b)."

Sentencing Hearings: U.S. v. Cabrera, No. 03-1890 (1st Cir. 06/14/05) (unpublished) - In this case the defendant/appellant argued that the district court had erred by not holding an evidentiary hearing at the time of sentencing regarding the issue of drug quantity. That argument evoked the following rather surly response from the panel:

“We do not agree: evidentiary hearings at sentencing are the exception, not the rule. A party seeking such a hearing 'must carry a formidable burden of persuasion.' . . . In this case, the appellant could have put forth a different version of the disputed point (drug quantity) by affidavit. He did not do so. Given that omission, the court had considerable latitude to decide that the appellant had not satisfied his entry-level burden of showing that material facts were genuinely in dispute. 'A district court need not grant an evidentiary hearing . . . merely because a defendant's hopes spring eternal or because a defendant wishes to mount a fishing expedition'."

The Court’s ruling may have been unpublished; but we are certain that it will be noted by a lot of other judges in the First Circuit who would love to eliminate the time-consuming nature of sentencing hearings.

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