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Recent Significant Decisions

by Walter M .Reaves, Jr.

The following is a summary of some of the more significant recent decisions on issues important to prisoners.

Search and Seizure

InUnited States v. Osage, 235 F.
3d 518 (10th Cir. 2000), the Court addressed the scope of a consent to search .The Court held that a consent to search does not extend to a container which would have to be destroyed or rendered useless to effect the search .Here, the defendant gave consent to search his luggage .Inside, they found cans labeled "tamales and gravy" .Opening those cans, they found narcotics .The Court found the officers exceeded the scope of the consent, which did not extend to destroying items.

Habeas Corpus

The Supreme Court recently resolved a split in authority in Duncan v. Walker, 121 S. Ct. 2120 (2001) .The issue was whether a prior federal habeas petition tolled the limitations period .The defendant initially filed a habeas petition before filing in state Court .The petition was dismissed and a state petition was filed .Clearly, the filing of a state petition tolls the limitations period .The question is whether the filing of a federal petition did the same .The Court held it did not, and therefore the petition was not timely.

Another habeas decision is Rodriguez v. Mitchell, 252 F.3d 191 (2nd Cir. 2001). There, the defendant filed a federal habeas petition, which was denied .He then filed a motion to vacate the judgment under Rule 60 of Federal Rules of criminal procedure .The issue was whether the Rule 60 motion should be treated as a second or subsequent habeas petition .The Court held it should not, which is contrary to decisions from the Fifth, Ninth, and Seventh circuits.

In Redmond v. Kingston, 240 F. 3d 590 (7th Cir. 2001), a habeas case in which the defendant successfully argued the violation of his right to confrontation, the claim was based on the inability to cross-examine the complaining witness concerning a prior false allegation of rape she made to get her mother's attention .The Court held that such evidence provided evidence of a motive in making the allegation, and therefore was relevant to her credibility .The state court ruling denying relief was an unreasonable application of Supreme Court precedent, and relief was granted.

A somewhat troubling case is Malede v. United States , 767 A.2d 267 (D.C. Cir. 2001). There, a defendant filed a complaint against his lawyer with the bar association .Counsel vehemently denied the allegations, and filed a motion to withdraw alleging he could no longer effectively represent the defendant .That motion was denied, and the lawyer represented the defendant at trial .On appeal, the defendant alleged the trial court had erred in denying the motion without a hearing, however the appellate court held that the filing of a complaint with a disciplinary authority is not sufficient to create a conflict and neither was the response of the lawyer, which the Court characterized as hostile and contemptuous .No matter what a lawyer's feelings toward a client may be, the Court determined that does not prevent him from providing effective assistance .A defendant must still show how the conflict caused his lawyer to not pursue a strategy or tactic .The defendant did not do so, and therefore no hearing was necessary.

An important case involving the standard of review in habeas is Washington v. Schriver , 255 F.3d 45 (2nd Cir. 2001). On direct appeal, the state court relied on state law, and affirmed the defendant's conviction .The question in federal court, was what deference should be given to that determination .The Circuit Court held that deferential review is only applicable when the state court discussed or at least cited federal law .Where that is not done, it cannot be said the claim was "adjudicated on the merits" in the state court proceeding .Thus, in that situation, the claims should be reviewed under pre-AEDPA standards .The courts are not in agreement on this issue, and the Fourth Circuit has explicitly rejected it in Bells v. Jarvis , 236 F.3d 149 (4th Cir. 2000) .

Another case addressing the standard of review in federal court is Penry v. Johnson ,121 S. Ct. 1910 (2001) .This was Penry's second trip before the Supreme Court .In his first, the Court reversed his death sentence and conviction because the jury was not given a means by which to consider evidence of mental retardation and childhood abuse .Penry was tried again, and the same issues were submitted .However, in an attempt to comply with the Penry holding, an additional special issue was also submitted which essentially told the jurors to answer "no" if they found mitigating circumstances .Upon review, the Court determined this was an unreasonable application of Penry, and granted relief, even though every court that had considered the issue had held to the contrary.

An important opinion for prisoners challenging parole is Crouch v. Norris, 251 F.3d 720 (8th Cir. 2001). There, the defendant filed an unsuccessful attack on his conviction .He was subsequently denied parole, and sought relief .The issue was whether he could bring a second federal habeas petition to challenge his parole .The Court held the AEDPA should not be construed literally, but instead interrupted in light of pre-AEDPA abuse of the writ principals .Here, the parole claims could not have been raised in the first federal petition, because they did not exist, therefore, a second federal petition would not be abusive and would not be barred under the AEDPA.

The right to be present at a writ hearing was addressed in Oken v. Warden, 233 F .3d 86 (1st Cir. 2000). The Court held there is no Sixth Amendment right to be present at such hearings .Instead, a petitioner is only entitled to fundamental fairness, which is guaranteed by due process .Due process was provided in this case by allowing the petitioner to rebut testimony by way of deposition .The petitioner was also allowed to review transcripts of part of the testimony before cross-examination was finished .While the right to be present is important, the Court found that right deserves less weight in a post-conviction context.

An important decision for habeas petitioners is Artuz v. Bennett, 121 S.Ct. 361 (2000) .There, the issue was what is a properly filed habeas petition .The government argued that a petition subject to a mandatory procedural bar was not a properly field petition, and therefore did not toll the limitations period .The Court held that properly filed is nothing more than compliance with the rules governing filing .Thus, as long as a petition is in the proper form, and filed in the appropriate place, the fact that it may be merit less, or subject to dismissal, is not controlling .Limitations will be tolled until the petition is ruled on by the court.

A potentially important habeas decisions is Flowers v. Walter, 239 F.3d 1096 (9th Cir. 2001). There, the Court held that the AEDPA codified the retro-activity approach of Teague v. Lane. That holding is contrary to the decisions from the First, Seventh, Fifth, and Eleventh circuits .The importance of that holding is that a rule may be retroactively applied even if that declaration has not been made by the Supreme Court .The Court also noted that the Teague exception for watershed rules of criminal procedure affecting the fairness and accuracy of a criminal proceeding still applies under the ADEPA.

The Supreme Court recently decided two habeas cases , Daniels v. United States, 121 S. Ct. 1578 (2001), and Lackawanna County Pa. District Attorney v. Coss, 121 S. Ct. 1567 (2001). The issue in both cases was whether a defendant in a federal habeas corpus action could challenge a prior conviction used for enhancement .In one case, the defendant was sentenced as an armed career criminal, and sought to attack one of the convictions used to establish that status .In the other case, a prior sentence was used in sentencing the defendant on a more recent case .In both cases the Court held that a defendant cannot challenge convictions in that manner .Once a defendant is no longer in custody, and the time for challenging the convictions has passed, then he cannot belatedly file a claim in a subsequent action .The Court does recognize an exception for convictions that are obtained in violation of the right to counsel.

Although not technically criminal law cases, the decisions in Immigration and Naturalization Services v. St. Cyr , 121 S. Ct. 2271, and Calcano-Martinez v. Immigration and Naturalization Service , 121 S. Ct. 2268 (2001) are important .The Court first held that the AEDPA language was not sufficiently clear to eliminate habeas jurisdiction .Therefore, the Court had jurisdiction to consider the claims .The next issue was whether certain amendments could be applied retroactively, since there was language indicating that was their intent .The defendant had a prior conviction, which at the time made him deportable, but deportation was subject to waiver .Subsequent amendments eliminated discretion to grant such a waiver .The Court held that elimination of the waiver provision attached a new disability to a transaction already completed .Waiver was applied with some frequency, and therefore it could be assumed that it was part of the consideration to plead guilty .The Court ultimately concluded that the amendments were not sufficiently clear to authorize a retroactive affect.

Ineffective Assistance of Counsel

In United States v. Davis , 239 F.3d 283 (2nd Cir. 2001), the defendant filed a motion to withdraw his plea alleging that his attorney had coerced him into doing so, and threatened to not file pre-trial motions or to investigate if he did not plead .Counsel was asked to address those allegations at the hearing, but opted not to do so .The Court held that a motion to withdraw plea hearing is a critical stage of the prosecution, and therefore requires the effective assistance of counsel .Here, the defendant alleged facts which could create a conflict of interest .In that situation the Court should appoint separate counsel to represent defendant at such a hearing.

In Glover v. United States , 121 S. Ct. 696 (2001), the Supreme Court clarified the standard for establishing prejudice in a sentencing proceeding .The defendant argued that his lawyer was ineffective for not raising an objection at sentencing, which resulted in an increase in points .The result was a sentencing range that was 6 to 21 months longer than it should have been .The issue before the Court was whether that was a sufficient amount of time to establish prejudice .The Court held that it was, noting that any amount of additional jail time is significant .Thus, where a lawyer fails to make an objection which results in an increase in the offense level, prejudice will be established.


A district court in New York previously adopted a policy governing horizontal departures for defendants who were in the highest criminal history category based on prior convictions for less serious street level narcotic sales .In United States v. Mishoe, 241 F.3d 214 (2nd Cir. 2001), the appellate court held such a policy is not proper .However, the Court did rule out departures in certain situations .The amount of drugs in prior cases may be an irrelevant factor, as is the amount of time served .The main reason for imposing long sentences on those who have committed prior offenses is to achieve the deterrent affect that prior punishment failed to achieve .Where prior sentences were relatively short, that same deterrent affect may be achieved by a less severe sentence .Thus, departures are permissible on such a basis, and must be specifically tied to the facts of the case.

A departure for reduced mental capacity was addressed in United States v. Sadolsky , 234 F.3d 938 (6th Cir. 2000). There, the defendant sought a departure based on a compulsive gambling disorder .The Court noted that the guideline has been amended to cover volitional as well as cognitive impairment, which means that it applies to the inability to control behavior that a defendant may know is wrongful .The Court rejected a distinction between the inability to control behavior that constitutes the crime and behavior that motivates a crime .Thus, the defendant could be entitled to a departure based on the fact that his crime of computer fraud was motivated by a need to pay off gambling debts.

A framework for addressing Apprendi claims was set forth in United States v. Candelario, 240 F.3d 1300 (11th Cir. 2001). The Court held the first determination is whether an objection was made .If there was a proper objection, the issue is reviewed for harmless error .If not, review is for plain error .Under a harmless error analysis, the Court looks for evidence which could rationally lead to a contrary finding, or whether evidence of the amount was uncontroverted .Under a plain error analysis, the Court essentially makes the same determination .However, the burden of showing harm is on the defendant .Additionally, under a plain error analysis, the Court must determine whether the defendant's substantial rights were affected .That standard of review focuses on whether the drug quantity was contested, and the evidence presented at trial .Thus, where evidence was either overwhelming, or not contested, the Court will not find plain error .The defendant in this case did not establish plain error, since the only evidence of amount came from a co-conspirator, and the jury necessarily had to believe the co-conspirator in order to find the defendant guilty.

A significant case for drug defendants in federal court is United States v. Scheele , 231 F.3d 492 (9th Cir. 2000). There, the amount of drugs considered as relevant conduct was challenged .The amounts came from a pre-sentence interview, in which the defendant claimed he had inflated the duration and extent of his prior activity .The Court split the difference between the defendant's statements during the interview, and his statements at sentencing .The Court reiterated it's prior holdings that the due process clause requires a standard of clear and convincing evidence when uncharged conduct has a disproportionate affect on the length of the sentence (which has not been accepted in other circuits) .Where estimates are involved, the court should use extra caution .The Court added that the estimate used by the court below resulted in a quantity that was barely above the amount that would have led to a lower sentencing range .The Court concluded that when using a method that is inherently imprecise, the court should consider the margin of error before fixing the final amount, and err on the side of caution.

The Supreme Court decided a case involving the review of sentencing proceedings in Buford v. United States , 121 S. Ct. 1276 (2001). The issue was what standard of review should be applied to the determination of whether prior convictions were consolidated for sentencing, and therefore "related" under the guidelines .The defendant argued such review should be de novo , but the Court rejected that argument .Instead, the review held should be deferential, since the decision is essentially one based on the facts.


An important decision for federal defendants on supervised release is United States v. Garrett, 253 F.3d 443 (9th Cir. 2001). The defendant was on supervised release when he committed a state crime .He was subsequently imprisoned on the state case, and no action was taken on his supervised release .When he was released from state custody, a warrant for his supervised release was executed, and he was subsequently revoked .The Court held that there was no problem in that procedure .A defendant is only entitled to a speedy hearing once he is taken into federal custody .The government is free to wait to serve the violation warrant, even though it potentially prevents the defendant from serving the sentences concurrently.

An interesting case involving the voluntariness of a plea is United States v. Abbot, 241 F.3d 29 (1st Cir. 2001). The defendant was initially charged with firearm violations .Based on actions regarding a witness, the defendant, as well as his mother, were subsequently charged with witness tampering .He entered a plea to one of the firearms counts, and his mother pled guilty and was placed on probation .When the plea was entered, the trial court was not advised that there was any link between the two pleas .The appellate court held that rendered the plea involuntary .Where pleas are linked, there is the possibility that such an arrangement can skew the assessment of risk a defendant considers .The fact that the defendant received the benefit of the bargain does not cure the error.

In Depetris v. Kuykendall , 239 F.3d 1057 (9th Cir. 2001), after years of being abused and threatened, a defendant shot and killed her husband while he was sleeping .At trial, she claimed imperfect self-defense .She attempted to introduce a journal her husband kept, in which he described violent acts against others which she claimed contributed to her fear after she read it .The Court held the exclusion of such evidence violated her right to due process .The journal corroborated her testimony, and was essential to establishing her state of mind .Since her credibility was critical, the Court found the error was not harmless.

A successful challenge based on interstate commerce grounds was made in United States v. Peterson , 236 F.3d 848 (7th Cir. 2001). There, the Court held that merely showing that the goods stolen during the robbery had traveled in interstate commerce was not sufficient .Instead, the government must make some showing that the robbery had an impact on interstate commerce .While the showing which must be made is minimal, there still must be some evidence that the robberies effected interstate commerce.

In United States v. Varoudakis , 233 F.3d 113 (1st Cir. 2000) the Court found that evidence of a prior act of arson was unfairly prejudicial .The defendant was charged in a conspiracy to burn down his restaurant .The government introduced evidence that approximately 16 months before the defendant had set fire to a leased car, hoping to collect insurance benefits .The Court found the evidence was relevant to show the relationship between the defendant and a witness .However, the Court found the evidence was overly prejudicial .There was already evidence of a relationship between the defendant and the witness, and the government therefore had little need for it .Because the offenses were similar, there was a likelihood the jury would infer that the defendant committed the offense on trial also, which is nothing more than establishing propensity .In what may be the most significant part of the holding, the Court chastised prosecutors for pushing the limits of admissibility of such evidence, and relied on the rule of harmless error to save the conviction.

The use of video statements of child witnesses was addressed in Schaal v. Gammon, 233 F. 3d 1103 (8th Cir. 2000). There, the state was allowed to introduce a videotape interview between a child and a psychologist, pursuant to a state statute which authorized the admission of such statements as long as the child is available to testify .The Court held that the ability to call the child did not solve the confrontation problem .The Court also noted that the admissibility of such statements depends on whether they have sufficient indications of reliability .The Court found the statement here did not, noting that the defendant was not present, the child was not under oath, there was a prior relationship between the psychologist and the child, and the child's mother was present.

A district court in Pennsylvania has challenged the logic underlying the prosecution of defendants for the illegal possession of firearms .In United States v. Coward , 151 F. Supp. 2d 544 (E .D.P.A .2001), the court recognized the existing body of law, which holds that jurisdiction is establish in such cases if the firearm has traveled in interstate commerce at any point in the past .The district court notes those decisions may be out of step with more recent commerce clause cases .Thus, the court suggested that the firearm must be actually used in interstate commerce and that such use cannot be supplied by a legal fiction.

Walter Reaves is a criminal defense attorney in Texas.

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