Criminal Appeal

AEDPA Limitations Case Argued

Lawrence v. Florida, the AEDPA statute of limitations case was argued this morning. The questions presented include whether statutory tolling for the period during the pendency of a properly filed state post-conviction application includes the time during which certiorari review is sought. Alternatively, whether equitable tolling is available where the late filing resulted from court-appointed counsel's mistake of law and from disarray in Florida's capital post-conviction appointment system.

Although 10 of the 11 circuits to consider the question have held there is no statutory tolling while certiorari review is sought, there's a pretty good plain-language analysis of the statute that supports the petitioner's argument and I wouldn't be surprised if Justice Scalia agrees with petitioner that the state post-conviction petition was still "pending" while he petitioned for certiorari. The transcript should be out this afternoon and we'll see if the justices's views are apparent.

Lawrence is on death row and the case thus presents the possibility of the execution of an inmate who never had any substantive federal habeas review of his case.

Cert. Grant in 4th Amend Case

As reported by SCOTUSblog, yesterday the Supreme Court granted cert in a 4th amendment case regarding the use of deadly force during high speed chases:

In another case, the Court agreed to decide whether the Fourth Amendment puts limits on police officers who use deadly force in an attempt to stop a suspect fleeing at high speed in a vehicle. The Georgia case is Scott v. Harris, 05-1631 (cert. petition here). The case tests whether pursuing police engage in an unconstitutional seizure if they bump the fleeing suspect's vehicle from the rear, causing the suspect's vehicle to crash and resulting in serious injuries to him. The case grew out of a nighttime high-speed chase in Peachtree City, Ga., in 2001. A lower court ruled that the officer involved in the pursuit did not have qualified immunity to the Fourth Amendment claim.

Scott is a section 1983 case coming out of the eleventh circuit.

Cunningham Argued

For those who were asleep all week, Cunningham v. California was argued. The Oral argument transcript is out.

And here are links to reports on the argument. Be sure to peruse the comments to the posts for additional first-hand reports.

SCOTUSblog:

• Argument recap: Cunningham v. Calif. on 10/11

 

Sentencing Law & Policy:

• Cunningham predictions, anyone?
• The (unrealized?) backdrop for Cunningham
• Reflections on the Cunningham oral argument

Priors Not Considered In Determining S.O.L. (CORRECTION - Holding Reversed on Rehearing)

CORRECTION (10/10/06): Last week I posted a summary of a California Court of Appeal opinion, People v. McSherry, no. B181229, which I described as holding "that the statute of limitations is determined by the maximum punishment for an offense, without considering the effect of a prior conviction allegation." Oddly, a colleague today mentioned the case and described it as an opinion on rehearing reversing course and finding that the longer felony statute of limitations applied. So I looked again, and he was right.

How did I get this entirely wrong? Well, it appears that the Court, instead of posting the new decision on rehearing, re-posted the original decision which in fact that been in favor of the defense. I suspect it was only posted like that for a very short time, although long enough for me to blog about it. I suspected this was the mistake (mostly because I couldn't believe I had read the opinion so wrong), but was only able to confirm it by checking the version of the opinion on Callaw (a.k.a. law.com/The Recorder), which still has the vacated opinion, originally filed on May 15, but posted on September 29.

People v. McSherry

C.A. 2nd
09-29-2006
B181229

Cite as 06 C.D.O.S. 9240

THE PEOPLE, Plaintiff and Respondent,

v.

LEONARD JAMES McSHERRY Defendant and Appellant.

No. B181229

In the Court of Appeal of the State of California

Second Appellate District

Division Three

(Los Angeles County Super. Ct. No. BA271123)

APPEAL from a judgment of the Superior Court of Los Angeles County,

Kevin A. Enright, Judge.  Reversed.

COUNSEL

Robert S. Gerstein, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Jaime L. Fuster and Chung L. Mar, Deputy Attorneys General, for Plaintiff and Respondent.

Filed May 15, 2006

Leonard James McSherry appeals the judgment entered after conviction by jury of an attempt to molest or annoy a child under the age of 18 years. (Pen. Code, § § 664/647.6, subd. (a).)[FOOTNOTE 1] Based on a prior conviction of lewd act in violation of section 288, the trial court sentenced McSherry as a felon. (§ 647.6, subd. (c)(2).) Because McSherry's conduct constitutes a misdemeanor absent the prior conviction of lewd act, and prosecution of the offense was not commenced within one year as required by section 802, subdivision (a), the judgment must be reversed.

BACKGROUND

* * *

Here's the text of this post before the correction:

In an opinion filed on Sept. 28, 2006, Division Three of the Second Appellate District held that the statute of limitations is determined by the maximum punishment for an offense, without considering the effect of a prior conviction allegation. People v. McSherry (no. B181229). In McSherry, the defendant was accused of violating section 647.6(a) (attempt to annoy/molest a minor), which is a misdemeanor. Even though the district attorney also alleged prior similar offenses which made the current offense a felony, the statute of limitations is determined only by considering the penalty for the non-enhanced offense. In this case, that the meant the offense was time barred and the court vacated the conviction.

Govt Can Override Defense Waiver of Jury

In granting a writ of mandamus, an extraordinary remedy, the Ninth Circuit held earlier this week in a per curiam opinion that the government's refusal to consent to a defendant's jury trial waiver did not violate the defendant's right to a fair trial an impartial fact-finder. U.S. v. US Dist Ct, Eastern Dist., no. 06-72498 (filed Oct. 3, 2006). The court held that enforcing Rule 23(a), which requires the government's consent to a jury trial waiver, would not result in an unfair trial in this case involving charges of interstate transportation and sexual abuse of young children. The Court noted that the Supreme Court of the United States, in upholding rule 23(a) in Singer v. United States, 380 U.S. 24 (1965), had acknowledged that there might be a case "where a defendant’s reasons for wanting to be tried by a judge alone are so compelling that the Government’s insistence on trial by jury would result in the denial to a defendant of an impartial trial." This, like Singer, just wasn't the case.

This per curiam opinion was joined by Judges Silverman, Rawlinson, and District Judge William O. Bertelsman (E.D. Kentucky).