Criminal Appeal

Cert. Grant in AEDPA S.O.L. Tolling Case

This morning, the Supreme Court granted cert. in a Florida capital case in which the Eleventh Circuit affirmed the dismissal of the habeas petition on statute of limitations grounds.  Lawrence v. Florida, no. 05-8820. This case presents the spectacle of a death row inmate possibly being denied any federal habeas review because his attorney filed his federal habeas petition late.

The precise question presented is not quite clear, but it relates to tolling of the AEDPA federal habeas statute of limitations.

While there have been quite a few Supreme Court cases addressing statutory tolling  based on a pending state habeas petition, this may be the first directly addressing equitable tolling and statutory tolling based upon a state created impediment to filing. (Last term, in Pace v. DiGuglielmo, the court assumed, without deciding, that equitable tolling could excuse a late filing.) The question in Lawrence, however, may be on the more limited question of whether the limitations period is tolled during the pendency of a cert petition from the denial of state post-convcition relief, as described by SCOTUSblog. The defendant  presented two theories by which his petition, although filed more than one year after the conviction was final, was timely. The Eleventh Circuit rejected both.

State Created Impediment to Filing. First, he argued that he fell under the alternative one-year limitation period that runs from “the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action.” 28 U.S.C. § 2244(d)(1)(B). The defendant argued that "the State caused an impediment to his timely filing by providing him with an incompetent attorney through the Florida counsel registry system" and that counsel incompetently assumed the limitations period was tolled during the pendency of a petition for certiorari from the denial of state post-conviction relief.

Equitable Tolling. Second, the defendant argued that he was entitled to equitable tolling due to (1) the state providing him an incompetent attorney, (2) his own mental incompetence.

The Eleventh Circuit rejected both theories in a published opinion. The court also held, as was necessary to the opinion, that the pendency of the certiorari petition from the state post-conviction denial did not toll the limitations period. The time during which the state post-conviction petition was pending did toll, but the court held that the clock started running when the state petition was denied by the state high court, not when the certiorari petition was denied.

Note-Taking

Orin Kerr posts about a law professor who has banned laptops from the classroom because, in the professor's words, "'they were focusing on trying to transcribe every word that was I saying, rather than thinking and analyzing.'” Prof. Kerr, in turns, replies "If profs think students are writing too much, isn’t the answer just to explain why and let them decide how to respond?"

I suggest instead, instructing the students with the model California jury instruction on note taking:

102. Note-Taking [caution - very large PDF]

You have been given notebooks and may take notes during the trial. Do not remove them from the courtroom. You may take your notes into the jury room during deliberations. Here are some points to consider if you take notes:

1. Note-taking may tend to distract you. It may affect your ability to listen carefully to all the testimony and to watch the witnesses as they testify; AND

2. You may use your notes only to remind yourself of what happened during the trial, but remember, your notes may be inaccurate or incomplete.

I do not mean to discourage you from taking notes. I believe you may find it helpful.

Note

Cal. Supreme Court to Review "Estes" Robbery

The Cal. Supreme Court granted review today in People v. Gomez, no. S140612, which presents the question of whether a robbery is committed when the property is taken outside the presence of the victim (i.e. without force or fear), but the defendant used force or fear in resisting the victim's attempts to regain possession of the property or in removing the property from the owner's immediate presence.

The Court of Appeal opinion, authored by Justice Bedsworth, can be read here and starts like this: 

The law libraries of this state are all lined with hundreds of linear feet of official reporters – testament in large measure to the bottomless ingenuity of what Justice Gardner called “the contemporary criminal culture.” (People v. Benton (1978) 77 Cal.App.3d 322, 324, fn. 1 [perhaps the best footnote in the history of appellate literature].) That ingenuity and the vagaries of random chance combine here to present still another in the apparently endless number of variations on the theme of Penal Code section 211. Here, we deal with the permutation that has become known as an “Estes robbery.”

Cal.

Crawford Follow-Up Cases Argued

For reports on yesterday's arguments in Davis v. Washington (911 call) and Hammon v. Indiana (crime-scene statement) oral arguments look to:

• Orin Kerr, who reports there were few clues no which way these cases will go, but ventures that "If I had to guess, I would guess that the government scores a relatively narrow win in Davis (the 911 case) but that the defense wins in Hammon (the personal visit case)."
  
• Linda Greenhouse of the NYT had a different  assessment, concluding that a majority of the justices seemed to view the 911 call identifying the defendant as "too powerful" to be admitted without cross-examination.
  
  
  

New Criminal Law Blogs

• Orin Kerr, Law Prof. at George Washington U. Law Center and former member of the Volokh Conspiracy group blog, has his own new blog: OrinKerr.Com
  
  
• Harlan J. Protass, a New York white collar criminal defense attorney and adjunct faculty member at  Benjamin N. Cardozo School of Law, has launched the Second Circuit Sentencing Blog, containing "Summaries And Commentary On Substantive Sentencing Decisions In The Second Circuit."

The Prior Conviction Exception

Two weeks ago I attended oral argument in an important Cal. Supreme Court case presenting the question of whether there is a constitutional right to a jury trial on the question of whether an out-of-state prior (robbery in this case) was a serious felony: People v. McGee, no. S123474. Based on the questioning from the bench, this case could go either way. I did note Chief Justice George's expressed reticence of upsetting long-standing and oft-used state law in the face of uncertainty from SCOTUS to date on the full scope of the Almendarez-Torres exception. This would be consistent with the approach he took in the Cal. Blakely case: People v. Black. As the Chief Justice is nearly always in the majority, that may be a sign that the Court will find no right to a jury trial. Of course, Black is now under scrutiny by the high court via the cert. grant in Cunningham v. California. McGee may have a similar fate.

Several of the justices, including Justice Baxter and Justice Corrigan, clearly understood that it is one thing to use a fact established in the prior case by, for example, the defendant's admissions found in the guilty plea transcript, but quite another thing to use a fact established by the victim's unadjudicated testimony in a preliminary hearing transcript from the prior case.  In fact, Justice Baxter opened the state's rebuttal time with a question just on this distinction.

However this case turns out, a cert. petition is likely, and it seems like it could be a good vehicle for SCOTUS to make what it said in Shepard v. United States constitutional law (rather than legislative interpretation drive by constitutional doubt). (It could also be a good vehicle for doing away with Almendarez-Torres once and for all, but that wouldn't be necessary because the case involves more than the mere fact of the prior conviction).

Significant Dissent in Cal. Capital Direct Appeal

In a 4-3 decision, the Cal. Supreme Court has affirmed another capital conviction and death sentence. But Justice Werdeger (joined by Justice Moreno and Court of Appeal Justice Gilbert) wrote in dissent that insufficient evidence supported the attempted-rape special circumstance finding which made the defendant eligible for the death penalty.

People v. Guerra, no. S036864 (Cal. Supreme Court, 3/2/06)

Cal. Supreme Review Grants

Can Pregnancy and/or Abortion Resulting from Sex Offense Constitute GBI? People v. Cross, S139791, rev. gr. 3/1/06; opinion below.

Is assault with a firearm a lesser included offense of shooting from a vehicle? People v. Licas, S140032 (rev. gr. 3/1/06); note: this seems to fit a recent trent showing the court's interest in questions relating to lesser included offenses; opinion below.

Did CALJIC No.17.15 adequately apprise the jury of the need for a “facilitative nexus” between the handgun and the underlying crime? People v. Pitto, S139609 (rev. gr. 2/10/06) Note: rev. granted on court's own motion; opinion below.