Results matching “thomas”

Today the Supreme Court, 6-2-1, declared that the "residual clause" of the Armed Career Criminal Act is unconstitutional.

The ACCA has a "three strikes" provision for violent felony priors, defined as a crime punished by over a year in prison that :

(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or

(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another

What the heck does that last part mean?  That's the problem.  Criminal laws need to be more clear than that, the majority says.  The rest of the law remains in force.

The case is Johnson v. United States, No. 13-7120.  Justices Kennedy and Thomas concur in the judgment overturning Johnson's sentence by applying rather than invalidating the statute.  That is, they believe the statute is constitutional but that possessing a short-barreled shotgun is not a violent felony under the statute.  Justice Alito dissents.

No Glossip today.  From a press coverage viewpoint, that's just as well, as the decision in a civil case will suck all the oxygen out of the room.  The Court has informed the press that Monday is the last day of the term, so we will definitely have a decision then.

Judge Rules MN Sex Offender Program Unconstitutional:  Minnesota's sex offender program violates the fundamental rights of over 700 people locked up indefinitely upon completion of their prison sentences, a federal judge ruled Wednesday.  Steve Karnowski of the AP reports that U.S. District Judge Donovan Frank ordered legislators to reach a program remedy by August, which must include the creation of alternate less restrictive facilities, or he will impose his own.  The 2011 class-action lawsuit filed for residents of the state's two secured facilities argues that the commitment of sex offenders after they've finished their prison sentences is unconstitutional on the grounds that "hardly anyone ever gets out."

Man who Provided Guns for Texas Cartoon Contest Arrested:  A Phoenix man identified as the third person who helped orchestrate last month's shootout at the "Draw Muhammad" cartoon contest in Garland, Texas had aspirations to join ISIS and attack the Super Bowl.  Fox News reports that Abdul Malik Abdul Kareem provided the guns used by Elton Simpson and Nadir Soofi to attack the event, where they were both fatally shot by security guards.  Kareem was arrested last week on charges of conspiracy, making false statements and interstate transportation of firearms with intent to commit a felony.

Senator Proposes GPS Implants to Track Violent Convicts:  With two escaped murderers from an upstate New York prison still on the loose, a New York Senator proposes implanting tiny GPS devices under convicts' skin to track them.  CBS New York reports that the proposal, introduced by State Sen. Kathy Marchione, is not only a way to improve public safety but also strengthen prison staff's ability to control inmates within institutions.  Local residents are split on the idea, with half believing the measure to be unconstitutional.  Legislators say that only the most violent convicts would be implanted.

FBI Targets ISIS Supporters:  The FBI is currently engaged in a broad campaign to disrupt potential terrorists inspired by Islamic State, a terrorist group also known as ISIS, and expects to make several arrests before July 4^th.  Aaron Katersky and Pierre Thomas of ABC News report that hundreds of investigations are active in all 50 states, mostly targeting suspected ISIS supporters.  Authorities have arrested five suspected supporters since last month's attack at the "Draw Muhammad" event in Garland, Texas.

We'll find out part of the answer today, when Missouri Gov. Jay Nixon makes his decision whether to cancel the pending execution of Richard Strong.

Strong brutally stabbed and slashed 23-year-old Eva Washington and two-year-old Zandrea Thomas to death after an argument in October, 2000 at the couple's apartment in St. Ann.

Strong spared his own daughter that he had fathered with Washington, Alyshia Strong, who was 3 months old at the time. She has asked Gov. Nixon to commute his sentence to life in prison, saying that he is an important part of her life.

A member of the family of Washington and Thomas who declined to give his name called Missourinet and said that they are, "sorry for the parents ... his parents ... and of course the daughter, our cousin, but right now he has to pay for what he's done, and we're ready for closure. Right now we would like for this man to be executed today and that would give us closure."

Not too much criminal law action in the U.S. Supreme Court today.  The Court's lone opinion has to do with which branch of government gets to decide whether Jerusalem is in Israel.

The Court took up for full briefing and argument next term the case of Luis v. United States, No. 14-419.  The Question Presented is "Whether the pretrial restraint of a criminal defendant's legitimate, untainted assets (those not traceable to a criminal offense) needed to retain counsel of choice violates the Fifth and Sixth Amendments."

The Court turned down a San Francisco gun control case over a dissent by Justice Thomas.

The Court turned down the petition of embassy bomber Wadih El-Hage.  The Second Circuit opinion is here.  Justices Sotomayor and Kagan are recused.  This complex, long-running case was in the Second Circuit while Justice Sotomayor was there, and there was no doubt some involvement of the Solicitor General's Office during Justice Kagan's tenure.  I wrote an amicus brief in the District Court regarding the speedy trial claim of a co-defendant, Ghailani.

In his ten years (1979-1989) as a federal District Judge, Alcee Hastings did "sentencing reform" the old-fashioned way:  He accepted bribes for lower sentences. This is the story in a nutshell:

In 1981, Hastings was charged with accepting a $150,000 bribe in exchange for a lenient sentence and a return of seized assets for 21 counts of racketeering by Frank and Thomas Romano, and of perjury in his testimony about the case. In 1983, he was acquitted by a jury after his alleged co-conspirator, William Borders, refused to testify in court (resulting in a jail sentence for Borders).

In 1988, the Democratic-controlled U.S. House of Representatives took up the case, and Hastings was impeached for bribery and perjury by a vote of 413-3. He was then convicted in 1989 by the United States Senate (also controlled by the Democrats), becoming the sixth federal judge in the history of the United States to be removed from office by the Senate.

LA County Jail-ICE Partnership To End:  The Los Angeles Board of Supervisors voted this week to end a program that allowed ICE agents to work inside county jails in order to more efficiently conduct their duties, responding to immigrant advocates who say the partnership was "eroding immigrants' trust in police."  Aaron Morrison of the International Business Times reports that groups who oppose the decision are concerned with how it could endanger the community by making it much more likely for illegal immigrants to avoid rightful deportation.  Those who voiced the strongest opposition were the family members of victims murdered by illegal immigrants.

Gang Rivalry Sparks Increase In Gun Crimes:  Police officers in Rockford, Illinois are combating an increase in gun violence brought on by an intense gang rivalry in the city.  Jeff Kilkey of the Rockford Register Star reports that through April of this year, there were a total of 161 incidents involving gunfire, a 92% from last year.  Police also noted that they seized 75 illegal guns through April, a 36% increase compared to 2014, and have responded to 11% more robberies.

Rapper Should Have Been in Prison:  A gang war in Denver that resulted in the deaths of a dozen gang members from four street gangs was triggered by the murder of a rapper, who had two warrants out for his arrest in two different states.  Kirk Mitchell of the Denver Post reports that Kevie "KL Tha General" Durham, who was fatally shot at a nightclub last November, was on the streets due to a "series of failures by authorities" in both North Carolina and Colorado.  Durham was not transferred to North Carolina where he was facing a robbery charge, and after escaping a halfway house in Colorado, the state's Fugitive Apprehension Unit failed to track him down.

Felon Avoids Earlier Murder Conviction Charged In New Killing:  A convicted felon from Birmingham, Alabama, who avoided a murder conviction almost a decade ago, has been charged with murder again.  Carol Robinson of AL reports that Justin Hendrix is charged in the shooting death last Saturday of Vanderick Lavorne Thomas, during an altercation over drugs and gambling.  In 2007, murder charges against Hendrix were dismissed, but he was convicted of attempted murder charges and cocaine possession, but was released early.

Teacher Fired For Assigning Students To Write Cop Killer:  A third grade teacher from New Jersey has been fired for  instructing her students to write "get well" letters to a convicted cop killer serving a life sentence in Pennsylvania.  Fox News reports that Marilyn Zuniga, a first-year teacher, defends the assignment that students write "get well" letters to diabetes-stricken Mumia Abu-Jamal, who killed a Philadelphia police officer during a routine traffic stop in 1981.  While some of her supporters believe the assignment taught the students compassion for others, opponents felt more deserving victims than a murderer should have been selected. 

Following up further on my post Friday and Bill's post earlier today, Jeffrey MacDonald of USA Today gives us this description of Helen Prejean's testimony for terrorist/multiple murderer Dzhokhar Tsarnaev:

Prejean ... said she has met five times with Tsarnaev since early March. She said he told her how he felt about the suffering he caused to the bombing's victims.

"He said it emphatically," Prejean said. "He said no one deserves to suffer like they did."

She added, "I had every reason to think he was taking it in and he was genuinely sorry for what he did."

Jurors are expected to get the case on Wednesday to decide whether Tsarnaev will be executed or spend his life in prison without the possibility of parole.

Prejean said Tsarnaev "kind of lowered his eyes" when he spoke about the victims. His "face registered" what he was saying. She interpreted his remorseful sentiment "as absolutely sincere," she said.

Prejean said she talked with Tsarnaev about both their faiths, his Islam and her Catholicism.

"I talked about how in the Catholic Church we have become more and more opposed to the death penalty," she said.

There are multiple issues here.  Is it admissible?  Is it persuasive?  Will it backfire?  Can the prosecution say out loud the obvious inference?  What's with that last line?

Don Quixote goes on trial tonight at the Annual Mock Trial & Dinner of the Shakespeare Theatre Company in Washington.  Justice Ginsburg presides with a five-judge panel including Justice Breyer.  Thomas Goldstein represents the schizophrenic knight in shining armor.  Carter Phillips is listed as Counsel for the Family Court.

Update:  Turns out this was a guardianship case, not a criminal case, so the caption above isn't strictly correct.  See follow-up post.

Prof. David Upham of the University of Dallas notes that there would seem to be a lack of geographic diversity in the background of the members of the Supreme Court:

All studied at Harvard or Yale Law School; almost all spent their pre-Court careers in the Boston-Washington axis of power, working for either the federal government or very prestigious law schools. Four Justices were raised in NYC (Ginsburg, Scalia, Kagan, Sotomayor), one in New Jersey (Alito), two in the Sacrament-San Francisco area (Breyer and Kennedy) . Only one grew up anywhere in the middle (Roberts--Indiana), and only one grew up in the South (Thomas--rural Georgia). Six of the nine (67%) justices, then, come from areas that today have combined, about 3% of the nation's population.  

I should note that Justices Rehnquist and O'Connor went to Stanford Law School (where they finished first and third, respectively, in the Class of 1952).  But, having gone there, I can tell you that Stanford is no more ideologically diverse than either of the others.

We have heard a good deal about the "root cause" of the Baltimore riots, not to mention a great deal of other criminal behavior.  Thomas Sowell sets the record straight:

You cannot take any people, of any color, and exempt them from the requirements of civilization -- including work, behavioral standards, personal responsibility, and all the other basic things that the clever intelligentsia disdain -- without ruinous consequences to them and to society at large.

Non-judgmental subsidies of counterproductive lifestyles are treating people as if they were livestock, to be fed and tended by others in a welfare state -- and yet expecting them to develop as human beings have developed when facing the challenges of life themselves. 

One key fact that keeps getting ignored is that the poverty rate among black married couples has been in single digits every year since 1994. Behavior matters and facts matter...

Engage, a publication of the Federalist Society, has this book review of The Constitution: An Introduction by Michael and Luke Paulsen.

The book begins by retelling the extraordinary events that led to the drafting and ratification of the Constitution and the quick addition of the Bill of Rights.  Then, in well under 100 pages, it elucidates the constitutional structure that the Constitution creates.  The authors evidence a great respect for the work of the Founders, and they have harsh words for those who treat the Constitution like a Rohrshach blot.  But they are also painfully honest about the flaws in the original design--and in particular, the Founders' accommodation of slavery.  The chapter devoted to this subject is one of the most interesting and will be instructive even for those who know a fair amount about the Constitution.  (For example, how many lawyers know that, were it not for the infamous three-fifths provision, which counted a slave as three-fifths of a person for purposes of congressional apportionment, John Adams, not Thomas Jefferson, would have won the pivotal presidential election of 1800?)

*                                      *                                 *

The Paulsens' book fairly presents both sides on major interpretive issues, but they do not hide their own point of view.  They favor a form of originalism and judicial restraint.  They are decidedly Hamiltonian in their view of national and presidential power, but at the same time they support a robust conception of the individual rights set out in the Bill of Rights and post-Civil War Amendments.  Substantive due process, which they trace back to Dred Scott, however, is another matter.

And who is the reviewer?  Justice Samuel Alito.

The U.S. Supreme Court today decided Rodriguez v. United States, No. 13-9972:

In Illinois v. Caballes, 543 U. S. 405 (2005), this Court held that a dog sniff conducted during a lawful traffic stop does not violate the Fourth Amendment's proscription of unreasonable seizures. This case presents the question whether the Fourth Amendment tolerates a dog sniff conducted after completion of a traffic stop. We hold that a police stop exceeding the time needed to handle the matter for which the stop was made violates the Constitution's shield against unreasonable seizures. A seizure justified only by a police-observed traffic violation, therefore, "become[s] unlawful if it is prolonged beyond the time reasonably required to complete th[e] mission" of issuing a ticket for the violation. Id., at 407.

Justice Ginsburg wrote the opinion.  Justice Thomas dissented, joined by Justices Kennedy and Alito.

The "only" in the last sentence is disputed in this case and remains open.  The government contends that the officer did have an individualized basis for suspicion that the car contained drugs.  Justices Thomas and Alito would affirm on that basis.  Justice Kennedy agrees with the majority that the point is not properly before the Supreme Court because the Court of Appeals did not decide it.

Although the issue discussed in that Part [of Justice Thomas's dissent] was argued here, the Court of Appeals has not addressed that aspect of the case in any detail. In my view the better course would be to allow that court to do so in the first instance.

Feds Releasing Hundreds Of Violent Illegal Immigrants:  Arrests and deportations of criminal aliens dropped 30% in the first six months of fiscal year 2015, despite President Obama's professed intention for agents to "focus on felons not families."  Stephen Diana of the Washington Times reports that 30,558 criminal aliens were "knowingly released back into the community" by ICE in 2014.  Together these aliens accumulated almost 80,000 convictions including violent crimes.  ICE Director Sarah Saldana defends the actions of the agency, stating that the laws passed under Congress require her to grant due process to everyone and make judgments about whom to keep detained.

Alien Children Allowed To Sue For Legal Representation:  A US District Court Judge in Washington state rejected a motion to dismiss a lawsuit that would grant legal representation to undocumented children facing deportation, ruling that their request for counsel "constituted an argument for due process."  Thomas Barrabi of the International Business Times reports that the ACLU filed the suit on behalf of Salvadorian sibling who immigrated illegally in 2013 to escape gang violence.  The ACLU has protested that mandatory detention of immigrants awaiting legal proceedings "violates the right to due process."

Tenn. Court Calls Off Scheduled Executions:  Four executions scheduled over the next year have been called off by the Tennessee Supreme Court to allow a trial court to review condemned murderer's challenges to the state's lethal injection protocol.  Mark Berman of the Washington Post reports that Tennessee is the latest state to halt executions while the courts consider challenges from Ohio, Georgia, Florida, Alabama, and Oklahoma.  The state plans to use the electric chair as its execution method of lethal injection is ruled unconstitutional or if the necessary drugs are no longer available.

Six Jacksonville Shootings In Three Days:  Jacksonville, Florida is reeling in the aftermath of six shootings in three days, leaving residents and law enforcement questioning whether the violence is gang-related.  Larry Spruill of Action News JAX reports that residents believe gang activity is the only explanation for the violence, because gangs have a large presence in the city.  Gang counselor Ivan Brown is certain that at least one of the shootings, the drive-by, was carried out by gang members.

Yolo County Questions Prop. 47 Sentencing:  Yolo County District Attorney Jeff Reisig has expressed disagreement with two Yolo County judges regarding the handling of low-level drug offenses under Prop. 47, adopted by CA voters last November.   Sarah Dowling of the Daily Democrat reports that the Reisig believes that drug offenders are less likely to pursue drug treatment without incarceration or the threat of incarceration.  He has proposed developing new sentencing guidelines for drug offenses, and Chief Probation Officer Brent Cardall agrees.  He is suggesting reforms to probation protocols that would help prevent drug offenders from avoiding treatment.

Gov. Brown To Parole Sick, Elderly Convicts:  In a cost-cutting effort, Governor Jerry Brown has proposed the parole of  hundreds of convicts who are chronically sick, mentally impaired, and over the age of 60.  Thomas D. Elias of the Napa Valley Register reports that this idea was first introduced in 2002 by Ray Procunier, the former California director of corrections under Ronald Reagan, who pointed out that Reagan cut the prison population by one-third with no increase in crime.  Since violent crimes are typically committed by young offenders in their teens and 20s, and the costs of treating sick and/or elderly inmates is extremely expensive, many consider their release to be a sensible solution to ease prison overcrowding.

Burglaries Linked to Prop. 47:  A rash of burglaries in La Cañada, California has residents wondering whether or not it is the direct result of Prop. 47, a law passed in November that released thousands of inmates from state prisoners.  Anita S. Brenner of the La Cañada Valley Sun reports that burglaries have been on the rise statewide, likely due to drug offenders, who often commit thefts and burglaries in order to feed their habit, receiving only a citation for their crimes.  State corrections officials insist that long-term studies must be conducted before the "true effect" of Prop. 47 is seen. 

CA Loosens Jessica's Law:  Jessica's Law, or Prop. 83, which forbids sex offenders from living within 2,000 feet of a school or park, is becoming less restrictive in California.  Kate Mather of the LA Times reports that the "blanket restrictions" outlined in the law will no longer be imposed, and cases will be assessed more individually.  The law, as it stands now, will still apply to high-risk sex offenders and offenders whose crimes involved children under the age of 14, who will be forbidden from living within a half-mile of a school or park.  This loosening of the law comes after a CA Supreme Court decision holding that the restrictions could not be applied in San Diego County due to a lack of residential properties 2,000 feet from schools and parks.

On February 5, the U.S. Supreme Court stayed the execution of Texas quadruple murderer Lester Leroy Bower while it considered his petition to take up his case for full briefing and argument.  Today the high court denied the petition, and the stay automatically terminates, giving Texas the green light to proceed (if they can find some pentobarbital).

In order to accept Bower's claim, the Court would need to further extend what is possibly the worst of all the errors in its capital sentencing jurisprudence, the Lockett/Penry rule that the defendant must be allowed to introduce "mitigating" evidence that has nothing to do with the crime and that the jury must be instructed to consider it.  The rule is wrong for the reasons explained by Justice White in Lockett v. Ohio, Justice Scalia in Penry v. Lynaugh and Walton v. Arizona, and Justice Thomas in Graham v. Collins.

Justice Breyer, joined by Justices Ginsburg and Sotomayor, dissents from today's order.  Interestingly, Justice Kagan does not join this opinion.

Today the Supreme Court heard argument in Ohio v. Clark.  The Confrontation Clause of the Sixth Amendment limits the use of out-of-court statements of people who do not testify as witnesses in the criminal trial, but exactly where that line is drawn has been a problem for a long time.  From the 1980 decision in Ohio v. Roberts until the 2004 decision in Crawford v. Washington, the focus was on the reliability of the statement.  Crawford threw that overboard and asked if a statement was "testimonial."  Under this rule, the reliability of the statement is at best irrelevant to whether it is excluded by the Confrontation Clause, and often the rule operates perversely, letting less reliable statements in while excluding more reliable ones.

Some of the Justices have been uncomfortable with that ever since, and that discomfort showed in today's argument over the statement of an abused child to his teacher.

So far, Justice Thomas has been alone in his view that the Confrontation Clause applies narrowly to the kinds of practices it was specifically aimed at, such as the use of depositions in lieu of live testimony.  In this view, the admissibility of most hearsay statements would be questions of state evidence law, not a federal constitutional mandate.

I think Justice Thomas has it right, and my brief takes a historical view consistent with his thesis.  There was no discussion of this view in today's argument, but the Justices seem uncomfortable with the status quo, and CJLF's arguments sometimes appear in the opinions without having been featured at oral argument.  We'll see.

By the narrowest of margins, the U.S. Supreme Court has spared a fisherman from the overbroad drafting the Sarbanes-Oxley Act, a law that was supposed to be about corporate financial accountability, not throwing fish overboard.  The vote in Yates v. United States is 4-1-4, with Justice Ginsburg writing the plurality opinion and Justice Alito concurring in the judgment in a separate opinion.  These split results typically produce a lot of head-scratching as lawyers and lower courts try to figure out what the heck the law is.

Update:  On an initial quick read, the plurality and concurrence don't seem all that different to me.  The SarbOx law prohibits destroying etc. "any record, document, or tangible object."  Is "tangible object" limited to information-containing objects along the lines of documents and records, or does it extend to any objects whatever?  The plurality and concurrence invoke the standard rules of statutory construction of considering words in their context and considering words in a list to be in the same general category as the others in the list.  The concurrence also notes the title of the section, "Destruction, alteration, or falsification of records in Federal investigations and bankruptcy."  Yep.  Titles should get more attention than they do.  I especially dislike the old rule that too many lawyers write into documents that you should ignore the titles.  They are important clues into the genuine intent of a document.

Justice Kagan in dissent insists that "A fish is, of course, a discrete thing that possesses physical form," citing the renowned lexicographer Theodor Geisel by his better-known pen name.*  Pretty sure that's a first.

The United States Supreme Court today granted a stay of execution pending its resolution of a certiorari petition to Lester Leroy Bower, who was found guilty of four counts of capital murder 31 years ago in Texas.  The Court of Criminal Appeals' opinion is here.

Applicant raised four issues in the instant application: (1) actual innocence based upon newly discovered evidence; (2) Brady violations; (3) a claim that Article 37.071 operated unconstitutionally because his jury did not have a vehicle to properly consider mitigating evidence; and (4) a claim that executing him after twenty-four years on death row amounts to cruel and unusual punishment.

I do not know which issue the Supreme Court thought warranted a stay, but I'm inclined to think it was the third.  The first two are largely factual determinations, and though actual innocence in a capital case would be enough to warrant the Supreme Court's attention, the unanimity in the lower courts suggests there is little there.  The fourth is the tired old claim that has never gotten more than a single vote in any Supreme Court case.

Are we really debating Penry, still, after all these years?

Murder Suspect Was On Probation: Fairfield, CA Police have arrested a habitual felon for a Thanksgiving day murder who was on probation at the time of the crime.  Henry Lee of the San Francisco Chronicle reports that 19-year-old Leonard Clayton has had multiple "law enforcement contacts" in the past for a variety of crimes including drug possession, burglary, carrying a loaded gun in public, and possession of stolen property, which would have carried time behind bars prior to the state's Realignment law, which reduced the penalties for these crimes.

Prosecutors To Seek Death Penalty For Accused Killer: Prosecutors in Pennsylvania have announced their plans to seek the death penalty for a man who police say brutally raped and murdered a sixth grade math teacher last month.  The Associated Press reports that 25-year-old Thomas Moore, along with a 16-year-old accomplice, is accused of torturing the woman and killing her after a botched burglary at her home.  Moore's co-defendant will most likely be charged as an adult for the crime, but will not face the death penalty.

CA Sued For Execution Delay:  A California judge has issued a tentative ruling requiring that the California Department of Corrections and Rehabilitation (CDCR) defend itself in a lawsuit claiming that it has intentionally delayed executions of condemned murderers for the past nine years.  Don Thompson of the Associated Press reports that the lawsuit, which was filed by CJLF, seeks to force the CDCR to adopt a single-drug execution protocol which is currently used in several other states.   In her tentative ruling, Sacramento Superior Court Judge Shellyanne Chang determined that CDCR is required by law to adopt an execution protocol, and that victims have the right to seek court action to force compliance.  The hearing was held this morning, and a decision is pending.

One of the problems with allowing convicts to argue that their lawyers were ineffective, not just at trial but at every step of the review process, is that every time such a claim is raised we will hear an argument that a new lawyer must be appointed.  After all, we can't expect a lawyer to argue his own incompetence or dereliction of duty, can we?  But where does this end, if cases can be reopened without limit based on a claim the prior lawyer screwed it up?

Today in Christeson v. Roper, No. 14-6873, the Supreme Court holds summarily that the Federal District Court in Missouri should have appointed new lawyers to argue for relief after the first set blew the deadline.  The Court does not hold that relief should actually be granted.  Justices Alito and Thomas dissent from the Court's summary treatment, believing "plenary review would have been more appropriate in this case."

Under Coleman v. Thompson (1991), the tailspin of each lawyer asking for a new review by accusing the one before was dealt with by cutting off the right to effective assistance after the first appeal.  That protective mechanism is now going down the tubes, and we need a new one.

The 45-year-old proposal of Judge Henry Friendly is looking better and better.  Every defendant, no matter how clearly guilty, is entitled to a trial and an appeal, with a right of effective counsel for both.  After that, no more reviews unless he has a colorable claim of actual innocence.  I suppose at this point we would have to add ineligibility for the penalty.  In capital cases, one could also argue that the defendant is a minor, intellectually disabled, or a minor accomplice swept up in the felony murder rule, or that none of the circumstances that legally make a case capital are true.  That would be all.  In all other cases, i.e. most cases, we just wouldn't hear the claim.

If Judge Friendly's proposal is not politically palatable for the first habeas review, as he proposed it, surely we could at least apply it to all reviews after the first.  That would include an initial federal review following a state collateral proceeding.  In this case, the deadline missed was for federal review.  Christeson already had a full review of his claims in state court.

I've copied the facts of the case from that state supreme court opinion on direct appeal after the break.