The Lawletter Vol 37 No 1

Suzanne Bailey, Senior Attorney, National Legal Research Group

"It ain't over 'til it's over."—Yogi Berra 

The U.S. Supreme Court recently considered whether a federal appellate court has the authority to address sua sponte the timeliness of a state prisoner's federal habeas petition.  Relying on prior precedent holding that a federal district court may consider a statute of limitations, Day v. McDonough, 547 U.S. 198, 202 (2006), or exhaustion, Granberry v. Greer, 481 U.S. 129, 134 (1987), defenses not raised by the State in answering the habeas petition at issue in Wood v. Milyard, 132 S. Ct. 1826 (2012), the Court held in an opinion written by Justice Ginsburg that an appellate court has the authority to consider, on its own motion, a forfeited timeliness defense.  However, the Court concluded that the U.S. Court of Appeals for the Tenth Circuit had abused its discretion in denying the petition on the ground of timeliness because the State did not merely forfeit the defense by inadvertent omission, but it knowingly waived the defense by affirmatively declining to assert the statute of limitations defense.  

            Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996), which applied to the petition in Milyard, a state prisoner has one year to file a federal petition for habeas corpus relief, starting from "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review."  28 U.S.C. § 2244(d)(1)(A).  For a prisoner whose judgment became final before the AEDPA was enacted, the one‑year limitations period runs from the AEDPA's effective date, that is, April 24, 1996.  The one‑year clock is stopped during the time a properly filed application for state postconviction relief is pending.  Id. § 2244(d)(2). 

In Milyard, the state judgment became final on direct review in early 1990.  Thus, the time for filing a federal petition began to run on April 24, 1996 and would expire on April 24, 1997 unless a properly filed application for state postconviction relief was pending in Colorado state court during that period.  The prisoner maintained that he had had such an application pending on April 24, 1996, that is, a motion for postconviction relief that he had filed in 1995 and that remained pending until he filed a second petition in August 2004.  The prisoner argued that the second petition had further tolled the limitations period until February 5, 2007, exactly one year before he filed the federal petition at issue in Milyard. 

In its preanswer response to the federal petition for writ of habeas corpus, the State acknowledged that it was arguable that the 1995 petition had been abandoned before 1997 and therefore did not toll the AEDPA statute of limitations.  However, the State informed the federal district court that it would not challenge the petition on the ground of timeliness.  The State reasserted its position in its full answer and defended on the merits, and the district court issued an opinion denying the petition, in part on the merits and in part for failure to exhaust.  On appeal, the Tenth Circuit directed the parties to brief the timeliness issue and then ruled that the petition was time-barred without addressing the merits.

April 17, 2012

Doug Plank, Senior Attorney, National Legal Research Group

In the landmark case of Gideon v. Wainwright, 372 U.S. 335 (1963), the U.S. Supreme Court established that the Sixth Amendment guarantee of the right to counsel requires States to provide an attorney to every criminal defendant charged with a felony.  Subsequently, in Strickland v. Washington, 466 U. S. 668 (1984), the Court went a step further and determined that the right to counsel is meaningless unless a defendant's attorney performs at a minimum level of competence at trial.  The Court thus found in Strickland that a convicted defendant could challenge the validity of his or her conviction on a showing of the ineffectiveness of his or her counsel at trial, adopting a two-part test under which the defendant has to show both (1) that his or her counsel's representation fell below an objective standard of reasonableness, and (2) that he or she was prejudiced as a result.  In Hill v. Lockhart, 474 U.S. 52 (1985), the Court held that Strickland's requirements extend to the situation in which an attorney provides incompetent advice to a defendant that causes the defendant to accept a plea agreement, reasoning that the entry of a guilty plea represents a waiver of a trial in violation of the right to a fair trial and that such a waiver satisfies the second prong of the Strickland test.  Most recently, in Padilla v. Kentucky, 130 S. Ct. 1473 (2010), the Court held that a criminal defendant could show that he or she had been denied the effective assistance of counsel when his or her attorney recommended entering a guilty plea without explaining that a collateral consequence of the plea would be the defendant's deportation, finding that the deportation could satisfy the prejudice requirement of the Strickland test.

However, until the recent decisions of the Court in Missouri v. Frye, No. 10-444, 2012 WL 932020 (U.S. Mar. 21, 2012), and Lafler v. Cooper, No. 10-209, 2012 WL 932019 (U.S. Mar. 21, 2012), the Supreme Court had never addressed the situation in which a defense attorney renders incompetent advice that persuades a criminal defendant to reject a favorable plea agreement and to decline to plead guilty.  By 5-4 votes in each case, the Court held for the first time in Frye and Lafler that a criminal defendant has the right to effective assistance of counsel in plea negotiations even where the negotiations do not result in a guilty plea.  Commentators have hailed these decisions as being extremely significant, with one law professor stating that they represent "'the single greatest revolution in the criminal justice process since Gideon v. Wainwright provided indigents the right to counsel.'"  Adam Liptak, Justices' Ruling Expands Rights of Accused in Plea Bargains, N.Y. Times, Mar. 21, 2012 (quoting Wesley M. Oliver). 

The Lawletter Vol 36 No 5

Suzanne Bailey, Senior Attorney, National Legal Research Group

The Third Circuit Court of Appeals recently became the first federal appellate court to consider whether 18 U.S.C. § 3147 allows a federal district court to impose a sentence that exceeds the statutory maximum sentence for the underlying crime.  Section 3147 requires a sentence to be enhanced when the crime of conviction was committed while the defendant was on pretrial release from another federal charge.  In United States v. Lewis, 660 F.3d 189 (3d Cir. 2011), the court also addressed whether the district court had erred in permitting the defendant to be convicted of an offense under § 3147, rather than having § 3147 be considered as a sentencing enhancement.

Section 3147 provides:

A person convicted of an offense committed while released under this chapter shall be sentenced, in addition to the sentence prescribed for the offense to—

(1)       a term of imprisonment of not more than ten years if the offense is a felony; or

(2)       a term of imprisonment of not more than one year if the offense is a misdemeanor.

A term of imprisonment imposed under this section shall be consecutive to any other sentence of imprisonment.

18 U.S.C. § 3147.  The statute is implemented through § 3C1.3 of the Federal Sentencing Guidelines, which states:  "If a statutory sentencing enhancement under 18 U.S.C. § 3147 applies, increase the offense level by 3 levels."  U.S.S.G. § 3C1.3.

In Lewis, the defendant had been charged with one count of carjacking in violation of 18 U.S.C. § 2119, one count of possession of ammunition by a convicted felon in violation of 18 U.S.C. § 922(g)(1), and one count of committing an offense while on pretrial release in violation of 18 U.S.C. § 3147(1).  The defendant was convicted of being a felon in possession of ammunition and committing a felony while on pretrial release.  Although the maximum sentence for being a felon in possession of ammunition is 10 years, with the addition of the three offense levels under U.S.S.G. § 3C1.3, the advisory sentencing range was 140 to 175 months, and the court sentenced the defendant to 138 months.  On appeal, the defendant challenged the sentence on the grounds that it exceeded the statutory maximum for being a felon in possession of ammunition and that § 3147 was an enhancement statute, not an offense.  The court reviewed the sentence for plain error.

The court of appeals concluded that the clear and unambiguous language of § 3147 expressed the intent of Congress to increase the maximum sentence for the underlying offense by adding up to 10 years "in addition to the sentence prescribed for the offense."  Although it was unnecessary to look to the legislative history, the court opined that, given the clarity of the statutory language, were it to consider the history, it would find little support for the defendant's argument that Congress had intended to add up to 10 years to a sentence as long as the total sentence remained within the statutory maximum for the underlying crime.  The note to U.S.S.G. § 3C1.3 did not support the defendant's position either.  The court found that cases from other circuits, relied on by the defendant, were dicta or supportive of its holding.

December 20, 2011

Doug Plank, Senior Attorney, National Legal Research Group

In the landmark case of Apprendi v. New Jersey, 530 U.S. 466 (2000), the U.S. Supreme Court determined that the Sixth Amendment requires that "any fact," other than that of a prior conviction, "that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt."  Id. at 490.  The Apprendi case arose from the prosecution in New Jersey state court of a defendant for shooting into the home of an African-American family in his neighborhood.  After the offense, the defendant made comments to the effect that he had committed the shootings because he did not want the family to live in his neighborhood.  Pursuant to a plea agreement, the defendant pleaded guilty to several counts of second-degree possession of a firearm for an unlawful purpose, which carried a possible sentence of between 5 and 10 years, but he did not admit a racial motive for his actions.  At sentencing, the trial judge noted the defendant's prior comments concerning the motive for the shooting and determined that because the offense had been racially motivated, the defendant should receive an enhanced sentence of 12 years in prison under the New Jersey provision allowing an increase in sentence when the crime was committed for a "biased purpose."  When the legitimacy of the enhancement of the sentence by the judge reached the Supreme Court, the Court concluded that a judge's role in sentencing is constrained at its outer limits by the facts alleged in the indictment and either found by the jury beyond a reasonable doubt or admitted by the defendant; it thus concluded that it was unconstitutional for the trial judge to have imposed the enhanced sentence without a finding by a jury of racial motivation or an admission of such motivation by the defendant as part of the plea agreement.

Since the decision in Apprendi, the lower courts have struggled to apply its core principle in a variety of situations, and the Supreme Court has provided guidance by construing the scope of Apprendi in several cases.  In Ring v. Arizona, 536 U.S. 584 (2002), for example, the Court applied Apprendi to an Arizona law that authorized the imposition of the death penalty if the judge found 1 of 10 aggravating factors.  The Court held that the Sixth Amendment right to a jury trial precludes the use of a procedure whereby a sentencing judge, sitting without a jury, finds an aggravating circumstance necessary for imposition of the death penalty. 

Subsequently, in Blakely v. Washington, 542 U.S. 296 (2004), the Court held that a state trial court violated the Apprendi rule when it sentenced the defendant to more than three years above the 53‑month statutory maximum of the standard range for his offense on the basis of the judge's finding that the defendant had acted with deliberate cruelty.  In United States v. Booker, 543 U.S. 220 (2005), the Court applied Apprendi to the U.S. Sentencing Guidelines, finding that the concept of mandatory Guidelines that had been applied solely by the trial judge was incompatible with Apprendi, and the Court severed and excised the provisions of the Guidelines that made them mandatory and set forth a limited standard of review on appeal.  More recently, the Court found in Cunningham v. California, 549 U.S. 270 (2007), that California's determinate sentencing law violated a defendant's right to trial by jury, because it authorized the judge, not the jury, to find by a preponderance of the evidence facts that exposed a defendant to an elevated upper-term sentence.

September 14, 2011

Doug Plank, Senior Attorney, National Legal Research Group

One of the most significant consequences of the recent use of DNA testing in the criminal justice system has been the growing recognition that eyewitness identification testimony is simply not as reliable as it was previously thought to be.  In fact, now that DNA test results have exonerated hundreds of imprisoned convicts—most of whom were convicted on the strength of eyewitness identification from presumably reliable citizens—it has become apparent that traditional means of obtaining eyewitness identification have been too suggestive and too likely to create errors.  This fact has led some courts to question the propriety of investigative techniques that have long been approved by the U.S. Supreme Court and to adopt new rules with regard to both identification procedures utilized by the police and the admission of eyewitness identification testimony at trial. 

In accordance with this trend, the New Jersey Supreme Court, troubled by the lack of reliability of eyewitness identification evidence, has just announced guidelines that will make it easier for criminal defendants to challenge such evidence.   In State v. Henderson, No. 062218, A-8 Sept. Term 2008, 2011 WL 3715028 (N.J. Aug. 24, 2011), a unanimous decision, the court found that a "vast body of scientific research about human memory" has emerged in recent years that "casts doubt on some commonly held views relating to memory" and "calls into question the vitality of the current legal framework for analyzing the reliability of eyewitness identifications," id. at *1, as established in Manson v. Brathwaite, 432 U.S. 98 (1977), and State v. Madison, 109 N.J. 223, 536 A.2d 254 (1988).

 The case arose from the identification by an eyewitness, James Womble, of the defendant, Larry Henderson, as the accomplice to a murder, about which Womble did not speak to the police until they approached him 10 days later.  According to Womble's story, he had been drinking wine and champagne and smoking crack cocaine with Rodney Harper in an apartment, when two men, only one of whom was known to Womble, barged in and tried to collect $160 that Harper owed.  The second man—a stranger to Womble—pointed a gun at him and told him not to move because he was not involved in the debt.  Womble later stated that he "got a look at" the stranger, but not "a real good look."  2011 WL 3715028, at *3.  The first man eventually shot Harper in another room, and as the two intruders left the apartment, they threatened Womble with harm if he told the police anything.

 When approached by police during their investigation of the murder, Womble initially denied having been present during the murder and said that he had heard the gunshot coming from outside the apartment and that he had gone outside to find Harper, who was slumped over in his car.  Womble later admitted that he had lied to police, claiming that he had been threatened if he cooperated with them.  He then viewed a photographic array of suspects and identified Henderson as the man who had assisted the shooter and pointed a gun at him.  When Henderson was arrested on the basis of this identification, he acknowledged that he had gone to the apartment at the time of the shooting but insisted that he had waited in the hallway and had not participated in the shooting.

 The New Jersey Supreme Court closely examined the circumstances of the photographic array, the viewing of which, according to police guidelines, was initially conducted by an officer who had not previously been involved in the murder investigation.   The array consisted of seven "filler" photographs and one photograph of Henderson, and all eight photographs depicted headshots of African-American men between the ages of 28 and 35, with short hair, goatees, and, according to the officer, similar facial features.  Womble quickly eliminated five of the photographs, then reviewed the remaining three, discounted one more, and said he "wasn't 100 percent sure of the final two pictures."  Id. at *5.  After some time had passed, and after the two investigating officers had come into the room to assure Womble that he had no reason to be afraid because the police would protect him, Womble finally identified Henderson from his photograph as the person who had assisted the shooter.  At the subsequent hearing, held pursuant to United States v. Wade, 388 U.S. 218 (1967), Womble did not recant his identification but testified that he felt as though the officer had been "nudging" him to choose Henderson's photograph and "that there was pressure" to make a choice.  2011 WL 3715028, at *5.  Then, applying the two-part test from Manson and Madison—which requires courts to first determine whether police identification procedures were impermissibly suggestive, and if so, to then weigh five reliability factors to decide whether the identification evidence is nonetheless admissible—the trial court concluded that there was nothing in the photograph identification procedure that was so suggestive as to result in a substantial likelihood of any misidentification.

 Henderson was convicted of reckless manslaughter, largely on the basis of Womble's identification testimony at trial.  On appeal, the appellate division decided that the photographic array procedure had been suggestive, and it remanded for a consideration of the five Manson/Madison factors for determining whether the identification was nevertheless reliable.  The State appealed, and the New Jersey Supreme Court then ordered a remand for the establishment of a factual record that would be adequate to test the current validity of state law standards on the admissibility of eyewitness identification.  The court directed the trial court to conduct a plenary hearing to consider whether the assumptions and other factors reflected in the two‑part Manson/Madison test, as well as the five factors outlined in those cases to determine reliability, remained valid and appropriate in light of recent scientific and other evidence.

 A number of distinguished experts in psychology and law presented evidence at the remand hearing.  Based on this evidence, the New Jersey Supreme Court determined that the record substantiated the conclusion that eyewitness misidentification was "the single greatest cause of wrongful convictions in this country."  Id. at *9.  The court noted that more than 75% of convictions overturned due to DNA evidence had involved eyewitness misidentification and that comprehensive studies had shown that eyewitnesses to crimes had made an alarming number of misidentifications in lineups and photographic arrays, selecting a "filler" (an innocent person presented along with a suspect) about one-fourth of the time.  The court did not attribute this result to bad faith.  Rather,

We accept that eyewitnesses generally act in good faith. Most misidentifications stem from the fact that human memory is malleable; they are not the result of malice. . . . [A]n array of variables can affect and dilute eyewitness memory.