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The U.S. Supreme Court issued two criminal law decisions this week, neither of which is surprising or particularly controversial.

Monday, the Court decided Welch v. United States, No. 15-6418:

Last Term, this Court decided Johnson v. United States, 576 U. S. ___ (2015). Johnson considered the residual clause of the Armed Career Criminal Act of 1984, 18 U. S. C. §924(e)(2)(B)(ii). The Court held that provision void for vagueness. The present case asks whether Johnson is a substantive decision that is retroactive in cases on collateral review.
Answer: Yes.

Today, the Court decided Molina-Martinez v. United States, No. 14-8913, regarding what to do on appeal when the trial court messes up on the often complex Federal Sentencing Guidelines and nobody notices until the appeal.  The Court disapproved the Fifth Circuit's requirement that the defendant "must identify 'additional evidence' to show that the use of the incorrect Guidelines range did in fact affect his sentence."

USCA6 Summarily Reversed Yet Again

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The "massive resistance" of some federal judges (particularly in circuits divisible by 3) continues, and today the U.S. Supreme Court found it necessary once again to summarily reverse a decision of Sixth Circuit for brazenly exceeding the limits Congress has placed on its authority.

In 1996, Congress decided that the opinion of the lower federal courts on disputed questions of federal law was really not more reliable than the opinions of the state courts.  Too many correct judgments were being wrongly overturned, and the Supreme Court could not correct all the errors.  Yet Congress was not willing to let go of the safety valve of federal habeas corpus review of state convictions altogether.  The compromise was that federal courts could overturn a state conviction based on a claim rejected on the merits by the state courts if the state court decision was clearly wrong, beyond the bounds of reasonable disagreement.  If the issue is arguable, the state court decision stands.

Many federal judges are unwilling to let go of their prerogative to substitute their opinions for those of state judges on close questions, and they regularly violate the law governing the limits of their authority in order to "correct" what they see as violations of other rules of law.  The highest-profile incidents tend to be in capital cases, but it occurs in noncapital cases as well, and that brings us to today's Supreme Court decision in Woods v. Etherton, No. 15-723.
This morning we won a major victory in the fight to have capital cases concluded within a reasonable time.  In Habeas Corpus Resource Center v. U.S. Dept. of Justice, No. 14-16928, the U.S. Court of Appeals for the Ninth Circuit vacated an injunction issued by U.S. District Judge Claudia Wilken and put the "fast track" process back on track.
Two months ago, I denounced an NYT hatchet job misrepresenting one of the cases Cruz handled in the Supreme Court when he was Texas Solicitor General.  Now we have this article by Jonathan Mahler. 

This time the focus is on the case of José Medellín, one of the perpetrators of one of the most horrific gang-rape murders in the history of Houston.  I know a lot about this case.  I wrote three briefs in it before we finally delivered this scum-of-the-earth his just deserts.  Cruz rightly touts his role in this effort as a major accomplishment, but Mahler views it through the Times's partisan, polarized "all the news that fits our agenda" lens.

As with the previous post, let me note that CJLF takes no position in the Republican primary and endorses no candidate.  We care about the truth.  It is painfully evident that Mahler and the NYT do not. 
The U.S. Supreme Court today made Miller v. Alabama fully retroactive to all cases, no matter how old.  States that had mandatory life-without-parole for 17-year-old murderers must now either hold new sentencing hearings or make them eligible for parole, the Court said in Montgomery v. Louisiana.  It characterized the Miller rule as a "substantive" rule for retroactivity purposes.  Families of victims of juvenile murderers who adamantly oppose release therefore receive life sentences of appearing at parole hearings and reliving their tragedies. That result is disappointing but not unexpected.  CJLF's brief is here.

Also, the Court said that it had jurisdiction to review a state collateral review decision for retroactivity.  In essence, the federal rule of Teague v. Lane provides a floor (Montgomery) but not a ceiling (Danforth v. Minnesota) on retroactivity in state collateral review proceedings.  I don't have a problem with that part and didn't brief the point.  This is one more reason for states to adopt Teague for their own systems.  No point giving convicts the "head I win, tails we take it over" that results from dual standards.

An NYT Hatchet Job on Ted Cruz

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David Brooks has this column in the NYT on Ted Cruz, and it can only be described as a hatchet job.  CJLF does not endorse candidates and takes no position on the Republican primary.*  However, I do think we should correct misrepresentations about the candidates when they fall within our area of expertise.
The U.S. Supreme Court today took up for full briefing and argument the case of Welch v. United States, No. 15-6418

This case began in the Southern District of Florida, where the defendant filed a motion to vacate (28 U.S.C. §2255) his conviction and his sentence under the Armed Career Criminal Act.  The District Court denied the motion and denied a certificate of appealability (COA).  Welch sought a COA from the Court of Appeals, arguing that his plea was involuntary because the government "reneged" on his 10-year deal, and he got 15 to life instead.  He also claimed his Florida priors were invalid.

In a supplemental application, he asked for the case to be held for the Supreme Court's decision in Johnson v. United States, No. 13-7120.  The Eleventh Circuit did not hold it and denied Welch's application June 9, 2015.  The Supreme Court decided Johnson on June 26 and struck down the "residual clause" of the ACCA as unconstitutionally vague.

Curious that this is a grant for full briefing and argument and not a "vacate and remand for reconsideration in light of" Johnson.  The certiorari papers are not available online yet.

Does Johnson qualify for the "first Teague exception," making it retroactive on collateral review?  Yes, I think so.  The substantive statute was declared unconstitutional.  It is not a rule of procedure.

Update:  Lyle Denniston had this post yesterday at SCOTUSblog on another case presenting an issue of Johnson retroactivity, where the Solicitor General agreed that the Court should take the issue up.  If that is why the Court has taken Welch, then I can predict what will happen.  The Court will appoint an amicus to argue against retroactivity.  The amicus will get a footnote in the opinion praising his her efforts and a unanimous ruling against him her.

Update 2 (1/15):  Helgi C. Walker of Gibson Dunn has been "invited to brief and argue this case, as amicus curiae, in support of the judgment below."

Summary Reversal on Excusing Jurors

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The U.S. Supreme Court has once again summarily reversed a federal court of appeals for failure to obey Congress's landmark reform of habeas corpus law in 1996.  Once again, it is a capital case in a circuit divisible by 3.

Because juries in the penalty phase of capital cases must be unanimous, it is particularly important to remove from the jury those members of the venire who will not actually weigh the aggravating and mitigating circumstance but instead will automatically vote against the death penalty no matter what.  This is particularly important in states which stupidly do not require the jury to deliberate to unanimity one way or the other but instead allow a single holdout juror to veto the decision of the other eleven.

People often do not state their views straightforwardly.  Sometimes they are dishonest, but more often they just haven't thought them all the way through themselves.  Determining which jurors are "Witherspoon/Witt" excludable therefore involves some judgment.  The trial judge, who sees the venire members live and in full context, is entitled to considerable deference in making this judgment.  However, anti-death-penalty judges who are just itching to overturn a death sentence regardless of how richly deserved it may be find jury selection to be a fertile source of excuses to nullify a law they disagree with.  To forbid such misuse of the law and limit the lower federal courts' power to overturn state decisions to cases of clear error, Congress enacted the "deference" provision of the Antiterrorism and Effective Death Penalty Act of 1996.  Federal district and circuit judges who regard themselves as infinitely superior to state supreme court justices hate this law and regularly ignore its mandate.  This is particularly common in the Third, Sixth, and Ninth Circuits.  Reversing them has become a significant part of the Supreme Court's workload.

In today's decision in White v. Wheeler, the Court includes the following admonition without dissent:

As a final matter, this Court again advises the Court of Appeals that the provisions of AEDPA apply with full force even when reviewing a conviction and sentence imposing the death penalty.
The fact that it is necessary for the high court to so admonish the federal appellate courts is a sad commentary on the state of our judiciary.  Judges who cannot or will not decide capital cases fairly should not sit on them.  They should be excludable just like the jurors.  If they will not recuse themselves, perhaps it is time to establish a challenge for cause.  How about a rule that a federal court of appeals judge who is three times reversed by the Supreme Court for failure to obey AEDPA in a capital case will sit on no more capital cases?

Jonathan Adler has this post at the Volokh Conspiracy.

Equitable Tolling

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The current argument session of the U.S. Supreme Court is pretty thin on criminal law.  There is one federal case involving some narrow issues, Musacchio v. United States, No. 14-1095, argued Monday.

Supreme Court decisions in civil cases may affect criminal and habeas cases, though.  That is particularly true of habeas, which is technically a civil case.  Yesterday the high court heard argument in a case involving equitable tolling of statutes of limitation, and the main precedent being discussed was Holland v. Florida, 560 U.S. 631 (2010), a capital habeas case (and one of my losses).

Habeas practitioners may want to keep an eye out for the decision in Menominee Tribe of Wis. v. United States, No. 14-510.  Perhaps it will shed some light on "extraordinary circumstances."  SCOTUSblog's case page is here. Ronald Mann has this report on the oral argument and thinks it looks grim for the tribe (and, therefore, good for the government).
The U.S. Court of Appeals has reversed the decision of the Federal District Court that had said California's death penalty was unconstitutional because of excessive delays.  The case is explained in my after-argument post.  CJLF has a press release.
James Ragland has this column in the Dallas Morning News.  He begins, "Let the record show that I was against the death penalty before I was for it."

He then recites some of the usual anti-DP arguments (which we have refuted, but I won't go into that now) as reasons one could argue for getting rid of the death penalty.

I tend to lean that way, too.

Until, that is, a case like Licho Escamilla's comes along, shattering my fragile and idealistic belief that there's a better way to derive justice.
The U.S. Supreme Court heard argument today in Montgomery v. Louisiana, No. 14-280.  The "merits" question is whether Miller v. Alabama (2012) -- which held that states can continue to sentence juvenile murders to life without parole but must give consideration to a lesser sentence -- applies retroactively so as to require resentencing of every killer sentenced to LWOP under a mandatory statute, even if the judgment was final on appeal years or even decades ago.

Before getting to that, though, there is a threshold question of the U.S. Supreme Court's jurisdiction to review the state court's decision not to apply Miller retroactively in a state habeas corpus case.  Does the state have to follow federal retroactivity law?  One of the two shoes dropped seven years ago in Danforth v. Minnesota (2008).  A state can, if it likes, apply a new rule retroactively in its own courts even if the federal rule of Teague v. Lane says the rule is not retroactive.  We have been waiting for the second shoe to drop ever since.

Justice Breyer asked in today's argument:

Danforth was the case saying that the states could be more generous. It wasn't a case -- this is a case that's the opposite of being generous: Can they be more stingy? And I cannot find anything in -- in Harlan -- maybe I'll read it again, but I can't find anything there, nor can I find anything in Danforth that answers the question.
I did not brief this question in the CJLF brief, believing the base was covered by others.  Considering that the question was discussed more than the merits in today's argument, maybe I should have.
The US Court of Appeals for the Ninth Circuit held oral argument yesterday in Jones v. Davis, the case in which a federal district judge ruled that the extreme delays in California's death penalty render it unconstitutional as a violation of the defendant's rights.  Make no mistake, the delays are unconstitutional as well as unconscionable, but they are a violation of the rights of the murder victims' families under Article I, Section 28 of the California Constitution.  To the extent the delays occur in federal court (and that is a large extent), they are a violation of the rights of the victims' families under 18 U.S.C. §3771.  The remedy is to fix the delays.  Links to earlier posts are collected in this post.

Before the argument, I said that I was confident that the decision would be reversed on one of the several limitations on habeas corpus breached by Judge Carney.  After the argument, others are saying it looks that way as well.
One of the reasons that the U.S. Court of Appeals for the Ninth Circuit is so often reversed by the Supreme Court (and often summarily, unanimously, with a harsh rebuke, or all of the above) is that the full court chronically fails to correct the errors of rogue panels when they favor a state prisoner, especially in capital cases.

Last December I noted that a 2-1 majority of a 3-judge panel (Thomas and Reinhardt, Kozinski dissenting) had overturned yet another death sentence, after four previous reviews of the case by other courts had found no reason to disturb the judgment.

Today, wonder of wonders, the Ninth agreed to rehear the case pseudo-en-banc, i.e., before an eleven-judge panel comprised of the chief judge and ten randomly selected judges.  Unfortunately, the automatically selected chief judge is the author of the erroneous opinion, so Arizona will need to draw six persons of sense out of ten.  That is less than even money in the Ninth, but not out of the question.  We do know that a majority of the pool voted to rehear the case.
Rory Little has this summary at SCOTUSblog of the criminal and related cases for the coming Supreme Court term.  What I found most interesting, though, is what is not there.  Not a single case of a state prisoner challenging his conviction or sentence in federal court has been scheduled for oral argument next term.

The full list of cases taken up for the next term so far is here.  Not a single "CFH" on the list.  There are two "CSH" cases, where the Supreme Court has taken a habeas corpus (or equivalent) case directly from the state courts.  There are four "CSY" cases, straight criminal appeals from state courts.  (Two of these arise from the same case, and a third presents a common question with the two.  CJLF has filed a single brief in all three.)  There are three "CFY" cases, federal criminal appeals.

Federal habeas for state prisoners lies at the crossroads of federalism, criminal law, and protection of individual rights, and that intersection has been the site of many collisions.  It has occupied a disproportionate amount of the Supreme Court's docket for many years.  Maybe not this year.

There are, of course, many more cases to be added.  Daniels v. Webster, discussed in this post by Ian Sonego, is a federal-prisoner habeas case that is highly likely to be added to the docket.

In addition to argued cases, there are summary dispositions, and chastising federal courts that just can't stand the fact that Congress took them down a peg in 1996 will doubtless be among those.  Even so, this could be the lightest term for state-prisoner federal habeas in some time.

As Rory notes, the reason for the Supreme Court to take criminal and habeas cases directly from the state courts is to get straight to the underlying issue without dealing with the limitations placed on the federal habeas remedy by Congress or the Supreme Court itself.  Perhaps the Court believes that the major questions of habeas procedure and limitations have largely been addressed and wishes to devote more attention to the underlying criminal law and procedure questions.

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