Criminal Appeal

Is the Certiorari Standard Lower for Cases in which Habeas Relief Has Been Granted Under AEDPA? Last week, in Brown v. Payton, no. 03-1039 (Mar. 22, 2005), the Supreme Court reversed the Ninth Circuit grant of habeas relief, essentially because the Ninth Circuit's application of AEDPA wasn't sufficiently deferential to the state court decision. I've searched the opinion for what made the case cert-worthy, but I'm somewhat at a loss. The opinion doesn't seem to announce a new rule or resolve a conflict. The Court appears to merely be correcting what the Court sees as a mis-application of AEDPA and Williams v. Taylor, 529 U. S. 362 (2000).

Rule 10 of the Supreme Court rules states that "A petition for a writ of certiorari is rarely granted when the asserted error consists of ... the misapplication of a properly stated rule of law."  But that isn't so with respect to misapplication of the AEDPA standard of review. In recent terms, there have been three summary reversals due to insufficient AEDPA deference in Ninth Circuit cases: Middleton v. McNeil, no. 03–1028 (May 3, 2004), Early v. Packer, no. 01-1765 (Nov. 4, 2002) and Woodford v. Visciotti, no. 02-137 (Nov. 4, 2002). (A fourth summary reversal came in a Sixth Circuit case: Holland v. Jackson, no. 03–1200 (June 28, 2004).)

I'm still waiting to see a summary reversal of the AEDPA denial of a habeas petition.

 

New Federal Defense Sites. No, I'm not talking about new silos. Rather, there are two new Web sites of particular interest to federal criminal defense practitioners in California:

Ninth Circuit Blog is a Web site tracking federal criminal issues in the Ninth Circuit. Its authors are David Porter, Asst. Federal Defender, E.D.Cal.; Jon Sands, FPD, D. Ariz.; Paul M. Rashkind, Chief of Appeals - FPD, S.D. Fla.; Steve Kalar, Senior Litigator FPD N.D. Cal.; and Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon.  (David Porter, by the way, is counsel of record for the habeas petitioner in Mayle v. Felix, no. 04-563, to be argued in the U.S. Supreme Court on April 19 (read the briefs here).) The Ninth Circuit Blog is one of a network of circuit-based blogs authored by federal defenders across the country. All of the blogs can be accessed in a single feed here; some---like the Second, Third, Seventh & Ninth Circuits---are more active than the others.

the Office of the Federal Public Defender for the Northern District of California also has its own new Web site, which includes a brief bank and a CJA resource page.

Defenders More At Risk Than Prosecutors. In "Prosecutors and judges also stand in the line of fire" Dan Abrams at MSNBC rightfully concluded that our society doesn't sufficiently appreciate the risks taken by judges and prosecutors. Sadly and misleadingly, all he had to say about defense attorneys is that "if you listen to defense attorneys, prosecutors get the wrong guy in every case." In a subsequent post (scroll down a bit to the section of the terrorists-buying-guns post under "rebuttal") Abrams responds to a complaint that he omitted public defenders from the list of those to appreciate; Abrams maintains that "it's the prosecutors and judges who are far more regularly threatened by the criminals."

Wrong. According to the deputy director of the California District Attorneys Association, being a public defender is more dangerous than being a prosecutor:

While violence is a  concern for prosecutors, it doesn't occur as often as it does to defense  attorneys, said Wayne Strumpfer, deputy director of the California District  Attorneys Association. "Obviously, (public defenders) have closer contact so there's better opportunity," said Strumpfer. "And there's a weird concept by the defendants. They tend to respect that we have a job to do. (If they don't get  what they want) then they tend to take it out on the defense attorney." 

Curtis, Diane, Lawyering Can Be A Dangerous Job, California Bar Journal, March, 2004. This is confirmed by L.A. County Public Defender Michael Judge:

Michael Judge, Los Angeles County chief public defender and chair of the legislative committee of the California Public Defenders Association, says a week doesn't go by without an attempt or actual attack on a public defender somewhere in the state. The    attack could be rape — a rarity — or, more common, stabbing with a handmade   knife that had been hidden in a body part or being "gassed" with urine, sputum and/or fecal matter.

Id.  Sadly, Public Defender Dude has a post this week about a public defender who was slashed on Monday by her client who had smuggled a razor blade into the courtroom in his mouth.

Blogging Update. Posting has been slow all year, but more so recently due to my recent meniscus repair (no, those are not my photos). But I'm back on my feet and stitch-less, hoping for more regularly blogging. (Of course, there will be more distractions, such as tomorrow's oral argument in a case I subbed into a few weeks ago, post-briefing.)

Shackling On Deck.   The Atlanta courthouse shooting may bring greater attention to a pending U.S. Supreme Court case: Deck v. Missouri, no. 04-5293, which was argued on March 1. The questions presented in Deck include:

• "Are the Fifth, Sixth, Eighth, and Fourteenth Amendments violated by forcing a capital defendant to proceed through penalty phase while shackled and handcuffed to a belly chain in full view of the jury"?; and
  
• "if so, doesn't the burden fall on the state to show that the error was harmless beyond a reasonable doubt, rather than on the defendant to show that he was prejudiced?"

The oral argument transcript is available here. (Justice Scalia actually suggested that if he were a prosecutor he would want the penalty phase defendant in street clothes. hair-combed and smiling.) Read the briefs here.

Ninth Circuit Arguments at Boalt Hall Tomorrow. Judges Noonan, Thomas & Fisher will be hearing oral arguments at 9:30 a.m. tomorrow at Boalt Hall. Six cases are on the calendar.

Judge Noonan, of course, is quite familiar with Boalt Hall.

Help From Academics and Practitioners Available to Public Defenders Litigating Federal Appeals.  The National Legal Aid and Defender Association (NLADA) has a new "Appellate Support Network" designged to provide assistance to public defenders working on federal appeallate matters. Here's some info about the program from NLADA:

The National Legal Aid and Defender Association (NLADA) is initiating the Appellate Support Network, a project that connects criminal procedure academics and private practitioners with public defenders working on important federal appellate matters.

 

The network is composed of criminal procedure academics that are available to provide assistance to public defenders on significant issues in front of the Supreme Court and U.S. Courts of Appeals. The professors provide a limited number of hours of assistance on a case, and they are considered of counsel and have the option of co-signing the brief. More information on the Appellate Support Network is available at http://www.nlada.org/TestingGround/Appellate_Network.

If you are interested in participating in the Appellate Support Network, please send your contact information along with your areas of expertise to Adam Neufeld at a.neufeld-at-nlada.org.

Thoughts About Shepard. Yesterday's SCOTUS decision in Shepard v. U.S., no.  03–9168, reminded me of Jones v. U.S., 526 US 227 (1999), in that it was decided on narrow legislative intent grounds, but---in applying the doctrine of avoiding constitutional doubt--- contained the seeds of a constitutionally-based analysis which will break new ground in a future case.

Some more particular thoughts:

• Almendarez-Torres is obviously still good law.
• Almendarez-Torres may still be good law because the Court has had bigger fish to fry in terms of overturning its own recent decisions, e.g. Lawrence, Atkins, Roper v. Simmons.
• Almendarez-Torres must be read narrowly and facts-related to the prior conviction which were not adjudicated in the prior proceeding fall outside the A-T exception. (See Shepard, slip op. at p. 11 ("While the disputed fact here can be described as a fact about a prior conviction, it is too far removed from the conclusive significance of a prior judicial record, and too much like the findings subject to Jones and Apprendi, to say that Almendarez-Torres clearly authorizes a judge to resolve the dispute.")
• Shepard supports the defendant arguments in People v. McGee, no. S123474, a California Supreme Court case, which, according to the Court's Web site presents this question: "Under Apprendi v. New Jersey (2000) 530 U.S. 466, was defendant entitled to a jury trial on the question whether his prior conviction for robbery in Nevada constituted a serious felony for purposes of sentencing under the three strikes law when the elements of the Nevada offense differed from the elements of robbery under California law and the sentencing issue thus depended upon whether the record of the prior conviction established that defendant's prior conduct amounted to robbery under California law?"
• Visit Sentencing Law & Policy for exhaustive & in-depth analysis of Shepard.