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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.
Is it a crime for a governor to threaten to veto a funding bill because he does not believe the head of the office being funded can be trusted to use the money appropriately?  Of course not.  We elect governors and other officials to make such judgments.

Yesterday, the Texas Third Court of Appeals threw out one of the charges brought against former Governor Rick Perry.  This WSJ editorial summarizes the case:

A special prosecutor in notorious Travis County essentially charged Mr. Perry for exercising his constitutional right to oppose and veto an act of the legislature. Mr. Perry threatened to veto a funding bill for the Travis County District Attorney's Public Integrity Unit unless D.A. Rosemary Lehmberg resigned. She had been arrested and pleaded guilty to drunk driving, but she refused to resign and Mr. Perry followed through with the veto. The charges boil down to criminalizing routine political debate and controversies.
The procedural mechanism invoked by Perry is a pretrial writ of habeas corpus.  Under Texas case law, this procedure can only be used for facial challenges to statutes, not "as applied" challenges.  The Court of Appeal held that the Coercion of Public Servant statute was unconstitutional on its face.  It regulates speech, and its prohibition of threats is not limited to "true threats" within the meaning of the U.S. Supreme Court cases on that point.

Perry's challenge to the charge of Abuse of Official Capacity is not cognizable in this proceeding, so that one will have to be thrown out at some point down the line.

Guest post by Ian Sonego:

The en banc Seventh Circuit has ruled 6-5 that a federal prisoner under a death sentence may circumvent the prohibition upon successive collateral attacks in 28 U.S.C. § 2255(h), which is similar to 28 U.S.C. § 2244(b)(2)[limiting successive habeas petitions filed by state prisoners in federal courts], by filing a habeas petition under 28 U.S.C. § 2241 in the district where he is incarcerated instead of the district where he was convicted and sentenced. Webster v. Daniels, 784 F.3d 1123 (7th Cir. May 1, 2015)(en banc)(No. 14-1049).

Federal prisoners under death sentences are incarcerated in the federal prison in the State of Indiana, which is within the Seventh Circuit.
Judge Alex Kozinski has a preface to the current issue of Georgetown Law Review that has been the subject of much discussion.  Eugene Volokh has reproduced it, minus the footnotes, in a series of posts at the Volokh Conspiracy.  The first one is here.  Volokh describes Kozinski as a "conservative" in the title of the initial post and a "libertarianish conservative" in the text, but lately he has been more libertarian than conservative, at least in criminal law.

Reading the brief segment on habeas corpus, and specifically on the "deference" standard of 28 U.S.C. § 2254 (in this post on VC), I thought of our old friend the elephant in the living room.  That is the huge problem that everyone knows about and no one wants to talk about, so they talk about other things.

Here is the Volokh version (sans footnotes) in the indented block quotes with interlaced comments by your humble blogger.  AEDPA refers to the Antiterrorism and Effective Death Penalty Act of 1996.

Prior to AEDPA taking effect in 1996, the federal courts provided a final safeguard for the relatively rare but compelling cases where the state courts had allowed a miscarriage of justice to occur.
Cases where the federal courts prevented a miscarriage of justice were rare.  But what about the cases where the federal courts caused a miscarriage of justice?  That is the elephant in the living room.  Are you going to address that?  Are you even going to mention it?

Harmless Error

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What does it mean that an error is harmless?

Well, here is what seems to be a pretty good example.  Suppose a jury is told that the perpetrator's DNA matches the defendant's, and that the chance of that being a coincidence is 1 in 43,000,000,000,000,000,000,000.  Later, an error is discovered in the database from which that figure was generated.  It should have been 1 in 40,000,000,000,000,000,000,000. Does that matter?  Either one equals waaaaaaay less than reasonable doubt.

If I understand this AP article by Michael Graczyk correctly, that is the claim that caused the Texas Court of Criminal Appeals to stay the execution of Clifton Lamar Williams for the brutal beating, stabbing, and arson death of Cecelia Schneider, 93, of Tyler, Texas.

Still, to the extent there is any confusion on an issue affecting the actual guilt determination, it is right to be super careful.  On the other hand, we should have a rule against last-minute stays on issues that have nothing to do with guilt, say no less than 30 days before the execution.

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