ABA American Bar Association

Document Sample
ABA American Bar Association Powered By Docstoc
					      Supreme Court Case Brief: Professor Rory Little’s Perspective

           A Service from the ABA Criminal Justice Section,

This summary has been created by Professor Rory K. Little (, U.C.
Hastings College of the Law, San Francisco, who has long presented “Annual Review of the
Supreme Court’s Term” program at the ABA’s Annual Meetings. It represents his personal,
unofficial views of the Justices’ opinions. The original opinions should be consulted for their
authoritative content.

The CJS hopes these summaries will be helpful to you, because they are different from the
average news or blog account, in at least three ways: first, a detailed account of the rationale of
ALL the opinions issued in a case, including nuances found in separate concurring and dissenting
opinions; second, an account of the decision that is essentially “neutral” -- that is, not really a
“perspective” in the sense of the author’s personal opinions, but rather a straightforward account
that can be relied upon by lawyers of all stripes; and then third, a bit of “inside baseball” analysis
of some of the twists or nuances that are not apparent in the opinion.

Three decisions: June 14, 2010

        Carachuri-Rosendo v. Holder;
        Dolan v. United States;
        Holland v. Florida

         On June 14, the Court issued three decisions related to criminal law: Carachuri
(immigration law and “aggravated felony”); Dolan (victim restitution deadlines); and
Holland (habeas corpus and lawyer misconduct causing equitable tolling).
         Holland, a death penalty habeas case, is interesting because the Court rules 7-2 in
favor of the defendant and Justice Alito, concurring, continues to demonstrate his
thoughtful independence from Justices Scalia and Thomas (both in dissent). Dolan is
interesting because it is another 5-4 decision this Term in which Justice Kennedy is not
the controlling vote (he is in dissent). Dolan is also interesting because the “old lions”
of the Court, Justices Stevens, Scalia, and Kennedy, are all left in dissent. “Youth” is
taking over!
         Both majorities are authored by Justice Breyer, and endorse Justice Breyer’s
preferred multi-factored “common law” approach, authorizing district judges to exercise
equitable discretion despite potential statutory blocks. Both decisions are really paeans to
trial judge discretion over statutory rigidity.

1. IMMIGRATION LAW (meaning of “convicted of aggravated felony”).

        Carachuri-Rosendo v. Holder, No. 09-60, 130 S.Ct. ___ (June 14, 2010),
reversing 570 F.3d 263 (5th Cir. 2009).

       Holding (9-0, although Scalia and Thomas concur only in the judgment): A state
simple drug possession misdemeanor does not qualify as a federal “aggravated
felony” that requires a prior conviction, “when the state conviction is not based on
the fact of a prior conviction.”
         Facts: “Like so many in this country, Carachuri-Rosendo [hereinafter “C-
R”] has gotten into some trouble with our drug laws.” In 2004 he got 20 days in
jail in Texas for misdemeanor possession of marijuana, and in 2005 he pled nolo
in Texas to possessing one tablet of Xanax and got 10 days in jail. Texas could
have sought an enhancement based on his prior misdemeanor, but did not.
Nevertheless, the feds initiated removal proceedings against C-R (who has lived
in the U.S. since he was five, 32 years ago, and has a citizen wife and four citizen
         Through a “maze of statutory cross-references,” federal immigration law
bars discretionary cancellation of removal for any alien “convicted of any
aggravated felony,” which the Court held in 2006 (Lopez) includes any state
offense “punishable” as a federal felony. Lopez involved a state felony offense
that was not “punishable” as a felony under federal law; this case (Carachuri-
Rosendo) involves the converse: a state misdemeanor conviction whose conduct
theoretically might be “punishable” as a federal felony based on having a prior
offense. That is, the conduct underlying the state misdemeanor that C-R pled to
could, if charged federally, theoretically be bumped up to a felony under federal
law because the defendant had a prior simple drug possession conviction. But this
recidivism fact here actually had no bearing on the actual state conviction: state
prosecutors did not invoke it and the state court did not find it.
         The Immigration Judge concluded that C-R was not eligible for
discretionary cancellation of removal because his Texas conviction counted as an
“aggravated felony” under the federal laws. The BIA affirmed based on Fifth
Circuit precedent, although it stated that in other Circuits that had not yet
answered the question, the BIA would not count state misdemeanors as
aggravated felonies unless the state court of conviction actually found that the
offender was a recidivist. The Fifth Circuit affirmed, finding that Lopez’s
“hypothetical” approach, focusing on conduct “punishable” as a federal felony,
was binding, since a federal prosecutor theoretically could have chosen to invoke
C-R’s prior simple possession conviction to enhance his second offense to a

        Stevens (for seven members of the Court, Scalia and Thomas
concurring in the judgment only): The “commonsense conception” of an
“aggravated felony” does not include a simple possession misdemeanor
conviction; the “everyday understanding” of the statutory term (quoting Lopez)
“does not fit easily” the facts of this case. The government’s reading is
“counterintuitive” and “unorthodox.” Lopez did not answer the very different
facts present here, including the meaning of the term “convicted.” Here, the state
court did not “convict” C-R of any recidivism offense, or make any such finding.
Allowing the immigration authorities to make such a finding in the first instance
is inconsistent with the federal statutory requirements that govern recidivism even
under the federal criminal statute that is here hypothetically applied. Both federal
and state law give prosecutors discretion to allege, or not, a prior conviction; here,
neither has so alleged. Moreover, empirically, no “comparable federal defendant”
can be found, charged with a felony on facts like these. And finally,
“ambiguities in criminal statutes … should be construed in the noncitizen’s
favor.” [Ed. Note: This application of the “rule of lenity” in the non-criminal,
immigration, context seems to be new holding.] Meanwhile, the Attorney
General retains discretion not to cancel removal, so our decision today has a
“limited” effect.
        (Interestingly (footnote 8), C-R was actually removed after the Fifth
Circuit’s opinion. But the case is not moot because C-R can still now apply for
cancellation of removal.)

        Scalia, concurring in the judgment: I agree with the result, but under
“more straightforward” reasoning. Although we have held that recidivism is not
necessarily an “element” of a crime (Almendarez-Torres, 1998), that does not
mean that a person can be found “convicted” of a crime as a recidivist when the
actual conviction did not so find. The elements of C-R’s state offense did not
include recidivism, and that is the end of the matter.

       Thomas, concurring in the jusdgment: I explained in my dissent in
Lopez why it was wrong. “Today the Court engages in jurisprudential gymnastics
to avoid Lopez. I will not contort the law to fit the case. Lopez was wrongly
decided,” and the plain statutory language requiring an aggravated felony
“conviction” is not satisfied here.

2. FEDERAL STATUTES (victim restitution and the court’s discretion to order
                     beyond the 90-day deadline for “final determination”).

Dolan v. United States, No. 09-367, 130 S.Ct. ___ (June 14, 2010), affirming 571 F.3d
1022 (10th Cir. 2009).

       Holding (5-4): A district court has discretion to order restitution beyond the
statute’s 90-day deadline for “final determination,” at least where the district judge
announces within the deadline that it will order restitution and leaves open only the

         Facts: Dolan pled guilty to federal assault causing serious bodily injury,
and agreed that “restitution may be ordered by the court.” After sentencing
proceedings, the judge entered a judgment that noted that restitution was
mandatory under the statute, but because he had “no information” as to amount,
he would not enter restitution “at this time.” Part of the Mandatory Victims
Restitution Act states that “the court shall set a date for final determination of the
victim’s losses, not to exceed 90 days after sentencing.” 18 U.S.C. § 3664(d)(5).
About three weeks before this 90-day deadline expired, the probation office
submitted a restitution estimate of $105,000 and the Court set a hearing for entry
of restitution for about three months later, beyond the 90 day deadline. No one
objected. But at the hearing, Dolan objected, arguing that because the 90 days
had passed, the court now had no authority to order restitution. The district court
disagreed and ordered restitution and the Tenth Circuit affirmed, creating a 3-2
Circuit split on the issue.

        Breyer (joined by Thomas, Ginsburg, Alito and Sotomayor): Not all
statutory deadlines are “jurisdictional,” and a multi-factored analysis persuades us
that this one was expressed merely to create legally-enforceable “speed” but it
“does not deprive the court of power to order restitution” (which Congress has
identified as “mandatory”) if the deadline is missed. The statute does use the
word “shall,” but like the federal bail statute which we have similarly construed
(Montalvo-Murillo, 1990), no consequence is specified for noncompliance.
Meanwhile the statute says restitution is mandatory “nothwithstanding any other
provision of law”; it “seeks speed primarily to help the victims of crime,” not the
defendant, and the victims “bear no responsibility for the deadline’s being
missed.” To deny the district court this discretion would “defeat the basic
purpose of the Mandatory Victims Restitution Act.” If a court were to
deliberately miss the deadline over a defendant’s objection, mandamus might lie.
But on the other hand, if we construe the deadline as absolute, “a defendant’s bad-
faith delay” could allow defendants to “manipulate” and avoid restitution.
         Also, we do not believe the lack of a restitution amount makes a
sentencing judgment non-final, and thus non-appealable. Final sentencing
judgments are appealable, even if a later order sets an amount of restitution.
Judges remain free to “fill in the blank” as to the amount of restitution, reasonably
and in good faith, and we will not “unnecessarily cabin their discretion.” The
statute does not require the dissent’s result, and a contrary rule would create
“serious statutory anomal[ies].” We aren’t sure the “rule of lenity” should apply
in this context, but if it did, there is no “grievous ambiguity” in the statutory
scheme warranting its application here.

        Roberts dissenting, with Stevens, Scalia and Kennedy): The Court’s
“misguided” decision is contrary to the clear statement of Congress, and there is
no authority for “’fill in the blank’ sentencing.” Prior to Congress allowing a 90-
day exception for a “final” determination of restitution, restitution had to be
“imposed at sentencing” or not “at all.” The statute does not recognize a court’s
authority to create other exceptions. Meanwhile Congress has made it clear, in
revising Rule 35, that courts retain no authority to “amend” sentences other than
that expressly given. Only a government appeal, if allowed, can “correct” a
sentence that is unlawful, beyond the 14-day period allowed in Rule 35. This is
true of mandatory terms of imprisonment, and should be true here. If the balance
to secure finality is unfair to victims, Congress can amend the statutes. But courts
cannot. “The only exceptions are ones Congress chooses to allow,” and
occasional unfair “consequences … are the unavoidable result of having a system
of rules.”

3. HABEAS CORPUS (One-year Statute of limitations subject to equitable tolling).

Holland v. Florida, No. 09-5327, 130 S.Ct. ____ (June 14, 2010), reversing 539 F.3d
1334 (11th Cir. Cir. 2008) (per curiam).

        Holding (7 (6-1) - 2): Equitable tolling is available for the statutory one-year
limitations period that applies to federal habeas petitions, and the Eleventh Circuit’s
standard that does not recognize “gross negligence” of a defendant’s attorney as
sufficient, absent “bad faith, dishonesty, divided loyalty, mental impairment, or so forth,”
is too “rigid,” so a remand to consider the facts of an attorney who apparently
“abandoned” his client is required.

        Facts: Holland was convicted of murder and sentenced to death in Florida in
1997. By October 2001, the USSCt had denied his petition for certiorari from the Florida
Supreme Court affirming his conviction and sentence, and that denial began the one-year
limitations period for filing a federal habeas petition under 28 U.S.C. § 2244(d)(1). An
attorney named Bradley Collins was then appointed to represent Holland in all state and
federal postconviction proceedings. After awhile, Collins filed a state postconviction
motion that stopped the one-year “clock” with 12 days left.
        [The Court then details three years of proceedings, in which Collins allegedly
“abandoned” Hollland.] Holland asked the state court to appoint a new attorney for him,
but the Florida courts struck his requests (“perverse[ly],” says Justice Alito) because he
was “represented” by counsel. From March 2005 until January 2006, Collins did not
answer three separate letters Holland sent to inquire as to the status of his case.
Ultimately, Collins did not inform Holland that his state habeas had been denied and the
mandate issued – which started the one-year federal habeas clock running again – until
the one-year period had expired.
        Holland then filed a pro se habeas petition, but the district court found it untimely
and dismissed it, refusing to grant “equitable tolling” of the one-year period despite
Holland’s claim of attorney misconduct that caused him to miss the deadline. The district
court ruled that even if the attorney’s “negligence” was an “extraordinary circumstance,”
Holland had not shown “due diligence” because he hadn’t worked to find out the date of
his state dismissal himself. The Eleventh Circuit affirmed without addressing the “due
diligence” question. Instead it ruled that attorney negligence, even “gross negligence,”
can never support equitable tolling of the habeas deadline, absent “bad faith, dishonesty,
divided loyalty, mental impairment, or so forth.”

         Breyer (for Roberts, Stevens, Kennedy, Ginsburg and Sotomayor: First, we hold
(as have 11 Circuits) that AEDPA’s statutory one-year limitations period is subject to
equitable tolling. There is a “rebuttable presumption” of equitable tolling for
nonjurisdictional limitations periods (which this one is, see Day, 2006), and “equitable
principles” have traditionally governed habeas
(Munaf, 2008). There is no clear indication Congress wanted to discontinue that practice.
Neither does our ruling undermine AEDPA’s “basic purpose,” which while desirous of
speed and finality was also to not undermine basic state habeas equity principles.
         Second, a remand is required to determine whether Holland is entitled to equitable
tolling on these facts, because the Circuit applied too “rigid” a standard. Equitable tolling
requires (1) due diligent pursuits of rights, and (2) extraordinary circumstances. We
flatly reject the district court’s ruling that sufficient diligence was not shown here. As for
“extraordinary circumstances,” it is generally evaluated “on a case-by-case basis,” and
does not necessarily exclude an attorney’s violation of “professional standards of care.”
It is true that habeas petitioners generally must “bear the risk of attorney error” (Coleman
v. Thompson, 1991), and that “garden variety excusable neglect” does not warrant
equitable tolling (Lawrence, 2007). But here, “a group of teachers of legal ethics tells us
that these various failures [of the attorney] violated fundamental canons of professional
responsibility.” [Ed note: I confess to having joined in the amicus brief the majority
cites.] This “seriously prejudiced” Holland, in his only chance to contest his death
sentence. The case is remanded for the lower courts to reconsider Holland’s claim of
equitable tolling in light of our opinion.

        Alito, concurring in part and in the judgment: I agree that equitable tolling is
available, and that Holland has alleged “facts that go well beyond any form of attorney
negligence,” so that a remand is necessary because the Eleventh Circuit’s standard was
too “limited.” But the majority’s “conclusory formulation” does not “do enough to
explain the right standard.” First, it is “abundantly clear” that “attorney negligence is not
an extraordinary circumstance” justifying equitable tolling. Even “gross negligence” by
an attorney is insufficient, because it is “not beyond the litigant’s control” and is
“impractical in the extreme” due to line-drawing difficulties. However, “attorney
misconduct that is not constructively attributable to the petitioner” can warrant equitable
tolling. Here, the lower court did not consider the lawyer’s “abandonment” of Holland,
or “whether the State improperly prevented petitioner from either obtaining new
representation or assuming the responsibility of representing himself”
         Scalia, dissenting, joined by Thomas only in Part I: First, because the AEDPA
statute already specifies circumstances in which the one-year limitations period does not
apply, we are not at liberty to craft additional ones. (This is the only part that Justice
Thomas joins.)
         Moreover, even if the statute did allow equitable tolling, “tolling surely should not
excuse the delay here.” We’ve already ruled that an attorney is the client’s agent, and
thus the attorney’s acts are attributed to the client (Coleman and Lawrence, supra). Only
where there is a constitutional right to counsel – and there is no such right on habeas –
can attorney misperformance justify relief. “Faithful application of Lawrence should
make short work of Holland’s claim.” Holland knew, before his time ran, that Collins
was not responding to his letters. He could have requested that Collins be dismissed and
that he go pro se.
         Meanwhile, the Eleventh Circuit’s addition of “or so forth” shows that it was not
imposing a “rigid” or exclusive list of equitable tolling factors. Holland’s facts just
didn’t amount to “extraordinary” circumstances. “The court offers almost no clue about
what test that court should have applied.” As for the amicus from legal ethics professors,
legal ethics is “that least analytically rigorous and hence most subjective of law school
subjects,” and we shouldn’t “smuggle Strickland into a realm where the Sixth
Amendment does not reach.”
         Finally, the Court’s ruling on the diligence question is completely gratuitous – “it
is not even arguably included within the question presented.” Although “the temptation
to tinker with technical rules to achieve what appears a just result is often strong,
especially when the client faces a capital sentence. But the Constitution does not
empower federal courts to rewrite, in the name of equity, rules that Congress has made.”
It is dangerous when we “leav[e] only our own consciences to constrain our discretion,”
and it is “irreconcilable with our system.”