Criminal Justice Section
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Criminal Justice Magazine
Spring 2003
Volume 18 Number 1
Cert Alert
Paul M. Rashkind
Paul M. Rashkind is a supervisory assistant federal public defender and chief of appeals for the Office of the Federal Public Defender, Southern District of Florida, in Miami. He also serves on the adjunct faculty of the University of Miami School of Law. He is current Section vice-chair for publications, chair of the Book Committee, and a contributing editor to Criminal Justice magazine.
Mid-Term Report
The Supreme Court had a quiet mid-Term, in month-long recesses from the middle of December through mid-January and again from the end of January through the end of February. Only two new decisions on the merits were announced, while five new cases were granted certiorari review. In addition, there was an interesting denial of certiorari in a closely followed Apprendi question and a summary grant of cert, vacating and remanding proceedings, from which four Justices dissented, in unusual fashion.
One decided case and one cert grant involve the Double Jeopardy Clause. The Court found that neither double jeopardy nor due process limited the right of a state to impose the death penalty on a defendant who had previously been sentenced to life for the same crime (Sattazahn). A few days earlier, the Court granted certiorari to review a writ of habeas corpus granted based on double jeopardy, occasioned by an ambiguous oral judgment of acquittal (Jones).
The Court sided with the government in reversing one case and relied upon a government concession to remand another in summary fashion. Although the Ninth Circuit determined that a conspiracy ends when it is interrupted by government action, the Supreme Court disagreed (Recio). On the same day, five Justices seized upon the U.S. solicitor general’s concession of error in the lower court’s reasoning of a sentencing enhancement case to summarily grant cert, vacate the court of appeals decision, and remand for reconsideration (Price), much to the consternation of four dissenting Justices.
The U.S. solicitor general had a role in an interesting denial of cert as well. After the Court asked the solicitor general to weigh in on Apprendi and Almendarez-Torres issues (affecting increased sentences based on prior convictions), the Court then quietly denied cert (Hitt), putting to rest revisiting Almendarez-Torres for now.
Application of the Ex Post Facto Clause to an amended statute of limitations will be addressed in a child molestation prosecution (Stogner). The First Amendment will be balanced against a Virginia loitering law (Hicks), and the right to equal protection and substantive due process are featured in a challenge to a Texas homosexuality law (Lawrence).
Once again, the Court will interpret a provision of AEDPA, this time concerning how judicially recharacterized habeas petitions are counted for purposes of second and successive petitions (Castro). Before addressing that issue, however, the Court will first address its own jurisdiction to review the lower court’s dismissal of the petition under AEDPA.
Resentencing after reversal of life term. Sattazahn v. Pennsylvania, 123 S. Ct. 732 (Jan. 14, 2003). The defendant was convicted of a capital crime, but the jury deadlocked on the penalty phase, so he was sentenced to life imprisonment, as required by Pennsylvania statute. His conviction was overturned on appeal. Upon retrial, he was again convicted and this time sentenced to death. The Pennsylvania Supreme Court upheld the death sentence, ruling that the Double Jeopardy Clause does not prevent it. The U.S. Supreme Court agreed, holding that a hung jury on the death phase is not the same thing as acquittal in the guilt phase; such a "nondecision" is not the same as an "acquittal." Thus, there is no double jeopardy bar to a death phase retrial and imposition of death. The Court refused to find greater protection in the Due Process Clause than is expressly written in the Double Jeopardy Clause, so it rejected a due process contention as well. Justice O’Connor filed a separate concurrence in this 5–4 decision, reiterating her belief that Apprendi was incorrectly decided, since the majority reached its decision, in part, based upon Apprendi reasoning. Justice Kennedy also withheld support of the Apprendi portion of the majority’s
reasoning.
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Ambiguous oral judgment of acquittal and double jeopardy. Jones v. Vincent, 123 S. Ct. 816, cert. granted (Jan. 10, 2003); decision below at 2002 Fed. App. 0200P (6th Cir. 2002). At the close of the state prosecution’s case, Vincent moved for a directed verdict on the first-degree murder charge. At issue is whether the state trial judge granted a directed verdict at that time such that the continuation of the trial and submission of the first-degree murder charge to the jury constituted double jeopardy. The Sixth Circuit affirmed the granting of a writ of habeas corpus, inasmuch as the state trial judge’s comments, coupled with the state court’s docket entry, amounted to an acquittal on the first-degree murder charge. The Supreme Court granted cert to review the decision.Duration of interrupted conspiracy. United States v. Jiminez Recio, 123 S. Ct. 816 (Jan. 21, 2003). The government seized control of a drug shipment, and two participants in the delivery then agreed to set up a sting for the government. The Ninth Circuit held that the persons subsequently arrested in the sting could not be convicted of conspiracy because there was insufficient evidence that they had joined the conspiracy before the drug seizure. Reversing, the Supreme Court held that a conspiracy does not automatically terminate simply because the government, unbeknownst to some of the conspirators, has defeated the object of the conspiracy. The Court noted that a conspiracy exists regardless of whether the substantive crime ensues. The Court further noted that the Ninth Circuit’s concerns about entrapment were better addressed within the bounds of entrapment law.
Grant-vacate-remand order (GVR) and acknowledgments of error. Price v. United States, 123 S. Ct. 986 (Jan. 21, 2003). Five Justices voted to grant certiorari, vacate the decision of the court of appeals, and remand the case for further court of appeals proceedings based on the acknowledgment error filed by the U.S. solicitor general. The solicitor general’s brief in opposition argued that the judgment below was correct, while it acknowledged that the court of appeals "erred in concluding that petitioner’s drug possession offense qualified as a predicate felony" under 18 U.S.C. § 924(c) in the absence of notice under 21 U.S.C. § 851(a). (See United States v. LaBonte, 520 U.S. 751, 759–60 (1997).) Four Justices dissented, both on the merits of the issue and the propriety of a GVR, where the conceded error only affects the reasoning of the court below, not its ultimate judgment.
Apprendi’s application to prior convictions. Hitt v. Kansas, 123 S. Ct. 962, cert. denied (Jan. 13, 2003). Hitt argued, under Apprendi v. New Jersey, that juvenile adjudications arising without a jury trial cannot be used to enhance his sentence. He sought the overruling of Almendarez-Torres v. United States, 523 U.S. 224 (1998). Before deciding whether to grant certiorari, the Supreme Court requested the views of the U.S. solicitor general on this state case, and the solicitor general took the position that Hitt should be held pending disposition of another similar case, Smalley v. United States (294 F.3d 1030 (8th Cir. 2002).The Supreme Court denied cert in both Hitt and Smalley, postponing for now any change in the rule of Almendarez-Torres.
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Ex post facto change in statute of limitations. Stogner v. California, 123 S. Ct. 658, cert. granted (Dec. 2, 2002); reported below at 114 Cal. Rptr. 2d 37 (Cal. Ct. App., 1st Dist. 2001). California statute provides, in cases of child molestation, an extended one-year limitations period following a report by the victim. The statute was passed after the original statute of limitations for Stogner’s crime had run. The California court held that the new statute was an exception to the ordinary statute of limitations for the offense and that neither the Due Process Clause nor the Ex Post Facto Clause was violated by an extension of the limitations period for an offense as to which the original limitations period had run. The Supreme Court granted cert to address two questions: (1) Did California’s legislature violate the Ex Post Facto Clause by abolishing a statute of limitations requirement, which historically was an element of crimes charged, so as to charge the defendant retroactively? (2) Did the abolition of the statute of limitations arbitrarily retract a liberty interest that the state had conferred upon the defendant?ÿ
Loitering and the First Amendment. Virginia v. Hicks, 123 S. Ct. 990, cert. granted (Jan. 24, 2003); reported below at 563 S.E.2d 674 (Va. 2002). Hicks was arrested in a public housing complex, where he said he was delivering diapers to the mother of his child. He had previously been arrested twice for trespassing at the complex. At the earlier arrest, Hicks had signed a letter advising him he would be arrested again if found on any city housing property. In addition, the complex had numerous signs warning that unauthorized persons are subject to arrest and prosecution. The municipal law on which the arrests were based was designed to keep unauthorized persons away from city housing complexes, which had become open-air drug markets. Hicks was convicted and sentenced to a year in jail despite his argument that there was no reason for keeping him out of the complex. The Virginia Supreme Court overturned the conviction and ruled invalid the antiloitering laws of which he was convicted, holding that the laws were overbroad and infringed on First Amendment protections. The U.S. Supreme Court granted cert, based on three issues raised by Virginia: whether (1) overbreadth provides a defense when the defendant’s conduct does not fall within the allegedly overbroad reading of the law, (2) the defendant’s challenge is viable where the conduct was not expressive, and (3) there is a First Amendment distinction between government action as a sovereign and government acting as a landlord.ÿ
Equal protection and substantive due process. Lawrence v. Texas, 123 S. Ct. 953, cert. granted (Dec. 2, 2002); reported below at 41 S.W.3d 349 (Tex. App., 14th Dist. 2001) (en banc). Questions presented: (1) Do the defendant’s convictions for violating homosexual conduct law—which reaches sexual intimacy by same-sex couples, but not identical behavior by opposite-sex couples—violate equal protection under the Fourteenth Amendment? (2) Do the convictions—for sexual intimacy in the home—violate the defendant’s vital interests in liberty and privacy under the Fourteenth Amendment’s Due Process Clause? (3) Should Bowers v. Hardwick, 478 U.S. 186 (1986), be overruled?
Counting habeas petitions under AEDPA. Castro v. United States, 123 S. Ct. ___, cert. granted (Jan. 27, 2003); decision below at 290 F.3d 1270 (11th Cir. 2002). The prisoner filed a Rule 33 motion for a new trial, which the district judge recharacterized as a motion to vacate under 28 U.S.C. § 2255, then denied it. The district judge did not warn the prisoner of any legal consequences of the recharacterization. Thereafter, the prisoner filed a section 2255 petition, which the district judge dismissed as prohibited under AEDPA (Antiterrorism and Effective Death Penalty Act) as a second or successive petition, counting the recharacterized motion as the first petition. The Eleventh Circuit affirmed the dismissal. The Supreme Court granted cert to review this determination, but it has also asked the parties to brief a jurisdictional issue: "Does [the Supreme] Court have jurisdiction to review the Eleventh Circuit’s dismissal of a § 2255 petition for writ of habeas corpus as second or successive?" n