The Legislature has declined to go forward with placement of Public Defender offices where they can be cost effective.  By the end of FY 2007 (30 June 2007) five to seven more offices could have saved the state approximately $1 million dollars per year in indigent defense costs (see our website, www.wvpds.org for a map of proposed areas; Public Defender Corporations on index). Those areas with the potential for substantial savings have many who strongly oppose establishment of offices. Absent a change in statutory structure, I am powerless to make changes.

         S.B. 505, which would have created a statewide board empowered to approve Public Defender office placement, was defeated by being placed on the House (regular) Calendar on the last day of the Regular Session.  The bill passed through both the Senate Judiciary and Finance Committees, passed the Senate 31-3, passed through the House Judiciary and Finance Committees (unanimously in the latter) and died on the House Calendar. 

         The Legislature appears to have arrived at a maximum funding level of $27 million for indigent defense. The FY 2006 budget bill appropriates $27,013,353 for Public Defender offices and private counsel.  Three line items are retained, appropriating $2,100,000 to private counsel in areas with Public Defender offices and $11,185,417 to areas without Public Defender offices, with the remainder to Public Defender offices.   If the proposed offices had all been open ten years ago, when it became obvious that Public Defender offices saved money (as well as provided an experienced defense), then that amount may well have been sufficient.  As matters now stand, the system will end this year with at least a $4 million dollar deficit, all of which rolls over into next year.

         It appears as of this writing (April 25, 2005) that we will be able to pay vouchers received through early March, 2005. Checks will be mailed through the end of this fiscal year because we are unable to keep up with the flow of vouchers. Currently, we are paying approximately two months in arrears. However, unless the flow of vouchers unexpectedly drops substantially next year, the funds will be exhausted next year no later than April 15, 2006, perhaps sooner.

         Because WV Code 29-21-13a allows four years to submit bills it is difficult to determine exactly when WVPDS run out. If one assumes that $27 million is the least amount necessary to fund indigent defense, the cumulative total under funding in the last five years is $12.7 million dollars.  To be only $4 million short is clearly a remarkable accomplishment, primarily attributable to Public Defender office work in spite of $600,000 in reduced funding in each of the last two years. The Legislature granted a $4.1 million dollar supplemental appropriation last year but that still leaves $4.6 million that has somehow been absorbed (at least to date).

         For now, however, please do not continue submitting your vouchers. We have more than enough on hand to continue processing through the end of this fiscal year. Thank you for your cooperation and understanding.

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Leocal v. Ashcroft, 125 S.Ct. 377 (2004) (Rehnquist, C.J.)

• State DUI conviction held not to be a crime of violence for purposes of deportation

          Petitioner, a Haitian citizen who is a lawful permanent resident of the United States, was convicted in 2000 of driving under the influence of alcohol (DUI) and causing serious bodily injury, in violation of Florida law. While he was serving his sentence, the Immigration and Naturalization Service (INS) initiated removal proceedings against him pursuant to §237(a) of the INA. Under that provision, an alien who is convicted of an aggravated felony is deportable. Section 101(a)(43) of the INA defines “aggravated felony” to include, inter alia, a crime of violence as defined by 18 U.S.C. Sec. 16 for which the term of imprisonment is at least one year.

         Classifying this conviction as a "crime of violence" under 18 U.S.C. Sec. 16 and therefore an "aggravated felony" under the INA, an Immigration Judge and the Board of Immigration Appeals ordered that petitioner be deported. The Court of Appeals for the Eleventh Circuit agreed, dismissing petitioner's petition for review.

Held:  reversed and remanded. Petitioner's DUI conviction is not a crime of violence under 18 U.S.C. Sec. 16.  DUI statutes such as Florida's do not require any mental state with respect to the use of force against another person, thus reaching individuals who were negligent or less. The Court noted this case does not present the question whether a state or federal offense that requires proof of the reckless use of force against a person or property of another qualifies as a crime of violence under 18 U.S.C. Sec. 16.

(See and compare SER Appleby v. Recht, 213 W.Va. 503, 583 S.E.2d 800 (2002) where the state Supreme Court held that application of the state's recidivist statute to a repeated drunk driver was not constitutionally disproportionate. The appropriateness of a life recidivist sentence under West Virginia's constitutional proportionality provision has generally required initial emphasis be given to the nature of the triggering felony with the primary analysis of the offenses focused on whether they involve actual or threatened violence to the person. See State v. Wyne, 194 W.Va. 315, 460 S.E.2d 450 (1995).)

Florida v. Nixon, 125 S.Ct. 551 (2004) (Ginsburg, J.)

• Defense counsel's strategic decision in capital case to concede at guilt phase the defendant's commission of the murder and to concentrate defense on penalty phase was not presumed prejudicial ineffective assistance necessitating new trial; Strickland applied

          This capital case concerns defense counsel’s strategic decision to concede, at the guilt phase of the trial, the defendant’s commission of murder, and to concentrate the defense on establishing, at the penalty phase, cause for sparing the defendant’s life. Any concession of that order, the Florida Supreme Court held, made without the defendant’s express consent-however gruesome the crime and despite the strength of the evidence of guilt-automatically ranks as prejudicial ineffective assistance of counsel necessitating a new trial.

Held:  reversed.

Jeanne Bickner had been tied to a tree and set on fire while still alive. Police arrested 23-year-old Joe Elton Nixon after Nixon’s brother informed the sheriff’s office that Nixon had confessed to the murder. Questioned by the police, Nixon described in graphic detail how he had kidnapped Bickner, then killed her. The State gathered overwhelming evidence establishing that Nixon had committed the murder in the manner he described. Trial counsel deposed all of the State’s potential witnesses and commenced plea negotiations, but the prosecutors refused to recommend a sentence other than death. Believing that the only way to save Nixon’s life would be to present extensive mitigation evidence centering on Nixon’s mental instability, he concluded that the best strategy would be to concede guilt, thereby preserving his credibility in urging leniency during the penalty phase.

Counsel attempted to explain this strategy to Nixon at least three times. Nixon was generally unresponsive during their discussions. He never verbally approved or protested the proposed strategy. Overall, he gave counsel very little, if any, assistance or direction in preparing the case, and refused to attend pretrial dispositions of various motions. Counsel eventually exercised his professional judgment to pursue the concession strategy. In his opening statement, counsel acknowledged Nixon’s guilt and urged the jury to focus on the penalty phase. He cross-examined government witnesses only when he felt their statements needed clarification and he did not present a defense case. He objected to the introduction of crime scene photographs and actively contested several aspects of the jury instructions during the charge conference. In his closing argument, counsel again conceded Nixon’s guilt and reminded the jury of the importance of the penalty phase. At the penalty phase, counsel presented the testimony of relatives and friends who described Nixon’s childhood emotional troubles and his erratic behavior in the days preceding the murder. A psychiatrist and a psychologist addressed Nixon’s antisocial personality, his history of emotional instability and psychiatric care, his low IQ, and the possibility that at some point he suffered brain damage. In his closing argument, counsel emphasized Nixon’s youth, the psychiatric evidence, and the jury’s discretion to consider any mitigating circumstances. The jury recommended, and the trial court imposed, the death penalty.

Certiorari was granted to resolve the question whether counsel’s failure to obtain the defendant’s express consent to a strategy of conceding guilt in a capital trial automatically renders counsel’s performance deficient, and whether counsel’s effectiveness should be evaluated under United States v. Cronic, 466 U.S. 648 (1984) or Strickland v. Washington, 466 U.S. 668 (1984).

The Court found the Florida Supreme Court’s erroneous equation of counsel’s concession strategy to a guilty plea led it to apply the wrong standard in determining whether counsel’s performance ranked as ineffective assistance. The Florida court first presumed deficient performance, then applied the presumption of prejudice that Cronic reserved for situations in which counsel has entirely failed to function as the client’s advocate. The Florida court therefore did not hold Nixon to the standard prescribed in Strickland which would have required Nixon to show that counsel’s concession strategy was unreasonable.

The Supreme Court found that on the record thus far developed, counsel’s concession of Nixon’s guilt did not rank as a “fail[ure] to function in any meaningful sense as the Government’s adversary.” The Court noted that although such a concession in a run-of-the-mine trial might present a closer question, the gravity of the potential sentence in a capital trial and the proceeding’s two-phase structure vitally affect counsel’s strategic calculus.

In summary, the Court found in a capital case, counsel must consider in conjunction both the guilt and penalty phases in determining how best to proceed. When counsel informs the defendant of the strategy counsel believes to be in the defendant’s best interest and the defendant is unresponsive, counsel’s strategic choice is not impeded by any blanket rule demanding the defendant’s explicit consent. Instead, if counsel’s strategy, given the evidence bearing on the defendant’s guilt, satisfies the Strickland standard, that is the end of the matter; no tenable claim of ineffective assistance would remain.

Devenpeck v. Alford, 125 S.Ct. 588 (2004) (Scalia, J.)

• Arrest lawful under Fourth Amendment when the criminal offense for which there is probable cause to arrest is not “closely related” to the offense stated by the arresting officer at the time of arrest

   This case presents the question whether an arrest is lawful under the Fourth Amendment when the criminal offense for which there is probable cause to arrest is not “closely related” to the offense stated by the arresting officer at the time of arrest.

        Believing that respondent was impersonating a police officer, petitioner Haner, a Washington State Patrol officer, pursued and pulled over respondent's vehicle. While questioning respondent at the scene, petitioner Devenpeck, Haner's supervisor, discovered that respondent was taping their conversation and arrested him for violating the State's Privacy Act. The state trial court subsequently dismissed the charge. Respondent filed a  §1983 action against petitioners in Federal District Court and a state cause of action for unlawful arrest and imprisonment, both claims resting upon the allegation that petitioners arrested him without probable cause in violation of the Fourth and Fourteenth Amendment. The case proceeded to trial and the jury found in favor of the petitioners.

        A divided panel of the Court of Appeals for the Ninth Circuit reversed finding no evidence to support the verdict. The majority concluded that petitioners could not have had probable cause to arrest because they cited only the Privacy Act charge and the alleged conduct of the respondent, recording officers conducting a traffic stop, was not a crime in Washington. The majority rejected petitioners’ claim that probable cause existed to arrest respondent for other offenses - impersonating a law-enforcement officer and obstructing a law-enforcement officer because, it said, those offenses were not “closely related” to the offense invoked by petitioner Devenpeck as he took respondent into custody.

         The Supreme Court found their cases make clear that an arresting officer’s state of mind (except for the facts that he knows) is irrelevant to the existence of probable cause. His subjective reason for making the arrest need not be the criminal offense as to which the known facts provide probable cause. They found a rule that the offense establishing probable cause must be “closely related” to, and based on the same conduct as, the offense identified by the arresting officer at the time of arrest is inconsistent with this precedent.

Reversed and remanded.

Kowalski v. Tesmer, 125 S.Ct. 564 (2004) (Rehnquist, C.J.)

• Attorneys lacked standing to challenge procedure for appointment of appellate counsel for indigents

        This case involves a constitutional challenge to Michigan’s procedure for appointing appellate counsel for indigent defendants who plead guilty. In 1994, Michigan amended its Constitution to provide that “an appeal by an accused who pleads guilty or nolo contendere shall be by leave of the court” and not as of right. Following this amendment, several Michigan state judges began to deny appointed appellate counsel to indigents who pleaded guilty, and the Michigan Legislature subsequently codified this practice. Under the statute, which was scheduled to go into effect on April 1, 2000, appointment of appellate counsel for indigents who plead guilty is prohibited, with certain mandatory and permissive exceptions.

The challengers are two attorneys who seek to invoke the rights of hypothetical indigents to challenge the procedure.

Held: the attorneys lack standing. The Court therefore did not reach the question of the procedure’s constitutionality.

Brosseau v. Haugen, 125 S.Ct. 596 (2004) (Per Curiam)

• Qualified Immunity

         Officer Brosseau shot Haugen in the back as he attempted to flee from law enforcement authorities in his vehicle. Haugen subsequently filed this action pursuant to §1983 alleging that the shot fired constituted excessive force and violated his federal constitutional rights. The District Court granted summary judgment to Brosseau after finding she was entitled to qualified immunity. The Court of Appeals for the Ninth Circuit reversed finding first, that Brosseau had violated Haugen’s Fourth Amendment right to be free from excessive force and, second, that the right violated was clearly established and thus Brosseau was not entitled to qualified immunity. The Supreme Court granted the petition on the qualified immunity question and reversed.

        The Court expressed no view as to the correctness of the Court of Appeals' decision on the excessive force question finding that, however that question is decided, the Court of Appeals was wrong on the issue of qualified immunity.

        The Court found qualified immunity shields an officer from suit when she makes a decision that, even if constitutionally deficient, reasonably misapprehends the law governing the circumstances she confronted. Because the focus is on whether the officer had fair notice that her conduct was unlawful, reasonableness is judged against the backdrop of the law at the time of the conduct. If the law at that time did not clearly establish that the officer's conduct would violate the Constitution, the officer should not be subject to liability or the burdens of litigation. The Court found the cases examined by no means "clearly establish" that Brosseau's conduct violated the Fourth Amendment.

Reversed and remanded.

Smith v. Texas, 125 S.Ct. 400 (2004) (Per Curiam)

• Capital sentencing "nullification instruction" failed to allow jury to give full weight to defendant's mitigation evidence

         Petitioner was convicted of capital murder and sentenced to death. At the punishment phase, the jury was instructed on two special issues: first, whether the killing was deliberate; and second, whether the defendant posed a continuing danger to others. Approximately two years prior to the trial, the Supreme Court held that presenting only these two special issues, without additional instructions regarding the jury's duty to consider mitigation evidence, violated the Eighth Amendment. Penry v. Lynaugh, 492 U.S. 302 (1989).

         In this case, the trial judge issued a supplemental "nullification instruction" that directed the jury to give effect to mitigation evidence, but allowed the jury to do so only by negating what would otherwise be affirmative responses to the two special issues relating to deliberateness and future dangerousness. In Penry II,  Penry v. Johnson, 532 U.S. 782 (2001) the Court held a similar "nullification instruction" constitutionally inadequate because it did not allow the jury to give " 'full consideration and full effect to mitigating circumstances' " in choosing the defendant's appropriate sentence. Despite that holding, the Texas Court of Criminal Appeals rejected petitioner's request for postconviction relief finding the instruction either was irrelevant because petitioner did not proffer "constitutionally significant" mitigation evidence, or was sufficiently distinguishable from the instruction in Penry to survive constitutional scrutiny.

Held:  reversed. The petitioner submitted relevant mitigation evidence and the nullification instruction failed to allow the jury to accord full weight to that evidence.

City of San Diego v. Roe, 125 S.Ct. 521 (2004) (Per Curiam)

• First Amendment

   The city of San Diego (City), a petitioner here, terminated a police officer, respondent, for selling videotapes he made and for related activity. The tapes showed the respondent engaging in sexually explicit acts. Respondent brought suit alleging, among other things, that the termination violated his First and Fourteenth Amendment rights to freedom of speech. The United States District Court for the Southern District of California granted summary judgment to the City. The Court of Appeals for the Ninth Circuit reversed.

Held:  the judgment of the Court of Appeals was reversed. A government employee does not relinquish all First Amendment rights otherwise enjoyed by citizens just by reason of his or her employment. On the other hand, a governmental employer may impose certain restraints on the speech of its employees, restraints that would be unconstitutional if applied to the general public. The Court has recognized the right of employees to speak on matters of public concern, typically matters concerning government policies that are of interest to the public at large, a subject on which public employees are uniquely qualified to comment. See, inter alia, Pickering v. Board of Ed., 391 U.S. 563 (1968). Outside of this category, the Court has held that when government employees speak or write on their own time on topics unrelated to their employment, the speech can have First Amendment protection, absent some governmental justification "far stronger than mere speculation" in regulating it. United States v. Treasury Employees, 513 U.S. 454 (1995). The Court concluded the City was not barred from terminating respondent under either line of cases. 

Whitfield v. United States,125 S.Ct. 687 (2005) (O'Connor, J.)

• Conspiracy to commit money laundering in violation of 18 U.S.C. §1956 (h) does not requires proof of an overt act in furtherance of the conspiracy

         Petitioners were convicted in federal district court of conspiracy to launder money in violation of 18 U.S.C. §1956(h). Their request to instruct the jury that the Government was required to prove beyond a reasonable doubt that at least one of the co-conspirators had committed an overt act in furtherance of the conspiracy was denied. The question presented is whether conviction for conspiracy to commit money laundering, in violation of 18 U.S.C. §1956 (h), requires proof of an overt act in furtherance of the conspiracy.

Held: it does not. 

United States v. Booker, 125 S.Ct. 738 (2005) (Stevens, J. delivered the opinion of the Court in part; Breyer, J. delivered the opinion of the Court in part.)

• Blakely, the Sixth Amendment and the Federal Sentencing Guidelines        

        The question presented is whether an application of the Federal Sentencing Guidelines violated the Sixth Amendment. In each case, the courts below held that binding rules set forth in the Guidelines limited the severity of the sentence that the judge could lawfully impose on the defendant based on the facts found by the jury at his trial. In both cases the courts rejected, on the basis of Blakely v. Washington, 542 U.S. ___ (2004), the Government’s recommended application of the Sentencing Guidelines because the proposed sentences were based on additional facts that the sentencing judge found by a preponderance of the evidence.

Held: both courts correctly concluded that the Sixth Amendment as construed in Blakely does apply to the Sentencing Guidelines. In a separate opinion authored by Justice Breyer, the Court concludes that in light of this holding, two provisions of the Sentencing Reform Act of 1984 (SRA) that have the effect of making the Guidelines mandatory must be invalidated in order to allow the statute to operate in a manner consistent with congressional intent.

Illinois v. Caballes, 125 S.Ct. 834 (2005) (Stevens, J.)

• Dog sniff conducted during lawful traffic stop did not, on facts of this case, violate Fourth Amendment

         Illinois State Trooper Gillette stopped respondent for speeding. When he radioed the police dispatcher to report the stop, Graham, a member of the Illinois State Police Drug Interdiction Team, overheard the transmission and immediately headed for the scene with his narcotics-detection dog. When they arrived, respondent’s car was on the shoulder of the road and respondent was in Gillette's vehicle. While Gillette was in the process of writing a warning ticket, Graham walked his dog around respondent’s car. The dog alerted at the trunk. Based on that alert, the officers searched the trunk, found marijuana, and arrested respondent.

         The question presented is whether the Fourth Amendment requires reasonable, articulable suspicion to justify using a drug-detection dog to sniff a vehicle during a legitimate traffic stop. The Court proceeded on the assumption that the officer conducting the dog sniff had no information about respondent except that he had been stopped for speeding. The Court accepted the state court’s conclusion that the duration of the stop in this case was entirely justified by the traffic offense and the ordinary inquiries incident to such a stop.

          The Illinois Supreme Court held that the initially lawful traffic stop became an unlawful seizure solely as a result of the canine sniff that occurred outside respondent’s stopped car. In its view, the use of the dog converted the citizen-police encounter from a lawful traffic stop into a drug investigation, and because the shift in purpose was not supported by any reasonable suspicion that respondent possessed narcotics, it was unlawful.

           Here, the U.S. Supreme Court found that conducting a dog sniff would not change the character of a traffic stop that is lawful at its inception and otherwise executed in a reasonable manner, unless the dog sniff itself infringed respondent’s constitutionally protected interest in privacy. The Court found that the use of a well-trained narcotics-detection dog-one that "does not expose noncontraband items that otherwise would remain hidden from public view," during a lawful traffic stop, generally does not implicate legitimate privacy interests. In this case, the dog sniff was performed on the exterior of respondent’s car while he was lawfully seized for a traffic violation. The Court found any intrusion on respondent’s privacy expectations did not rise to the level of a constitutionally cognizable infringement.

The judgment of the Illinois Supreme Court was vacated. 

Bell v. Cone, 125 S.Ct. 847 (2005) (Per Curiam)

• Federal Habeas Corpus

         Petitioner was convicted of murder and sentenced to death. Following affirmance of his convictions and sentence, he sought habeas relief. The Court of Appeals for the Sixth Circuit granted the writ after concluding that the “especially heinous, atrocious, or cruel” aggravating circumstance found by the jury at the sentencing phase was unconstitutionally vague and that the Tennessee Supreme Court failed to cure any constitutional deficiencies on appeal. 

Held:  the state court’s affirmance of the respondent’s death sentence was not contrary to clearly established Federal law. Reversed.

 Howell v. Mississippi, 125 S.Ct. 856 (Per Curiam)

Petitioner contends that the Mississippi courts violated his rights under the Eighth and Fourteenth Amendments to the United States Constitution by refusing to require a jury instruction about a lesser included offense in his capital case. He did not, however, raise this claim in the Supreme Court of Mississippi, which did not address it.

 The Supreme Court dismissed the writ of certiorari as improvidently granted.

Smith v. Massachusetts, 125 S.Ct. 1129 (2005) (Scalia, J.)

• Double Jeopardy barred reconsideration of midtrial acquittal

         Petitioner was tried before a jury on multiple charges related to a shooting.  Under Massachusetts law, the “firearm” element of the unlawful possession of a firearm charge requires proof that the weapon had a barrel “less than 16 inches” in length. The victim testified at trial that petitioner had shot him with “a pistol,” specifically “a revolver” that “appeared to be a .32 or a .38.” The prosecution introduced no other evidence about the firearm.

          At the conclusion of the prosecution’s case, petitioner moved under Rule 25(a) of the Rules Crim. Proc. for a required finding of not guilty on the firearm count, in part because the Commonwealth had not proved that the gun barrel was less than 16 inches. The trial judge granted the motion, reasoning that there was “not a scintilla of evidence” that petitioner had possessed a weapon with a barrel length of less than 16 inches. The prosecution rested and the defense case proceeded. During the recess before closing arguments, the prosecutor brought to the court’s attention a Massachusetts precedent under which (he contended) the victim’s testimony about the kind of gun sufficed to establish that the barrel was shorter than 16 inches. He requested that the court defer ruling on the sufficiency of the evidence until after the jury verdict. The judge agreed, announcing orally that she was “reversing” her previous ruling and allowing the firearm-possession count to go to the jury. The jury convicted on all three counts.

Held:  the judge's initial ruling on petitioner's motion was a judgment of acquittal and Double Jeopardy forbade the judge to reconsider the acquittal later in the trial.

The Court found that as a general matter state law may prescribe that a judge's midtrial determination of the sufficiency of the State's proof can be reconsidered, but that Massachusetts had not adopted any such rule of nonfinality at the time of petitioner's trial. The Court found the Double Jeopardy Clause’s guarantee cannot be allowed to become a potential snare for those who reasonably rely upon it. If, after a facially unqualified midtrial dismissal of one count, the trial has proceeded to the defendant’s introduction of evidence, the acquittal must be treated as final, unless the availability of reconsideration has been plainly established by pre-existing rule or case authority expressly applicable to midtrial rulings on the sufficiency of the evidence. That requirement was not met here.

The Court found prosecutors are not without protection against ill-considered acquittal rulings and cites W.Va. Rule Crim. Pro. 29(b), inter alia, for the proposition that States can and do craft procedural rules that allow trial judges "maximum opportunity to consider with care a pending acquittal motion" . . . including the option of deferring consideration until after the verdict.

Johnson v. California, 125 S.Ct. 1141 (2005) (O'Connor, J.)

• Strict scrutiny is proper standard of review for equal protection challenge to state corrections policy of racially segregating prisoners in double cells in reception centers

         The California Department of Corrections (CDC) has an unwritten policy of racially segregating prisoners in double cells in reception centers for up to 60 days each time they enter a new correctional facility.

The Court held strict scrutiny is the proper standard of review for an equal protection challenge to that policy. 

Roper v. Simmons, 125 S.Ct. 1183 (2005) (Kennedy, J.) 

• Execution of individuals under 18 at time of capital crime constitutionally prohibited

Held:  the Eighth and Fourteenth Amendments forbid imposition of the death penalty on offenders who were under the age of 18 when their crimes were committed.  

Wilkinson v. Dotson, 125 S.Ct. 1242 (2005) (Breyer, J.)

Two state prisoners brought an action under 42 U.S.C. §1983 claiming that Ohio's state parole procedures violate the Federal Constitution. The prisoners sought declaratory and injunctive relief. The question presented is whether they may bring such an action under Rev. Stat. §1979, 42 U.S.C. §1983, the Civil Rights Act of 1871, or whether they must instead seek relief exclusively under the federal habeas corpus statutes.

Held:  these actions may be brought under §1983.

Shepard v. U.S., 125 S.Ct. 1254 (2005) (Justice Souter delivered the opinion of the Court, except as to Part III.)

• Sentencing court could not look to police reports or complaint applications to determine whether an earlier guilty plea necessarily admitted, and supported a conviction for, generic burglary

         The Armed Career Criminal Act (ACCA), mandates a minimum 15-year prison sentence for anyone possessing a firearm after three prior convictions for serious drug offenses or violent felonies. The Act makes burglary a violent felony only if committed in a building or enclosed space ("generic burglary"), not in a boat or motor vehicle. Taylor v. United States, 495 U.S. 575 (1990) held that a court sentencing under the ACCA could look to statutory elements, charging documents, and jury instructions to determine whether an earlier conviction after trial was for generic burglary.

The question presented is whether a sentencing court can look to police reports or complaint applications to determine whether an earlier guilty plea necessarily admitted, and supported a conviction for, generic burglary. The Court held that it may not. Enquiry under the ACCA to determine whether a plea of guilty to burglary defined by a nongeneric statute necessarily admitted elements of the generic offense is limited to the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information.

Muehler v. Mena, 125 S.Ct. 1465 (2005) (Rehnquist, C.J.)

• Neither use of handcuffs to detain during search nor questioning about immigration status during detention violated Fourth Amendment on facts of this case

          Respondent was detained in handcuffs during a search of the premises that she and several others occupied. Petitioners were members of a police detachment executing a search warrant of these premises. Respondent sued the officers under 42 U.S.C. § 1983 and the District Court found in her favor. The Court of Appeals affirmed the judgment, holding that the use of handcuffs to detain respondent during the search violated the Fourth Amendment and that the officers’ questioning of respondent about her immigration status during the detention constituted an independent Fourth Amendment violation.

Held: respondent's detention in handcuffs for the length of the search was reasonable and did not violate the Fourth Amendment and the officers’ questioning during that detention did not violate her Fourth Amendment rights.

The Supreme Court found respondent's detention for the duration of the search was reasonable under Michigan v. Summers, 452 U.S. 692 (1981) because a warrant existed to search the residence and she was an occupant of that address at the time of the search. Inherent in Summer's authorization to detain an occupant of the place to be searched is the authority to use reasonable force to effectuate the detention. The Court found the use of force in the form of handcuffs on the respondent was a separate intrusion and was more intrusive than that which was upheld in Summers. But the Court found this was no ordinary search - a warrant authorized a search for weapons and a wanted gang member resided on the premises. The safety risk inherent in executing a search warrant for weapons was found sufficient to justify the use of handcuffs. The need to detain multiple occupants made the use of handcuffs all the more reasonable. Respondent argued that, even if the use of handcuffs to detain her was reasonable as an initial matter, the duration of the use of handcuffs made the detention unreasonable. The Supreme Court found the duration of a detention can affect the balance of interests, however, the 2- to 3- hour detention in handcuffs in this case did not outweigh the government’s continuing safety interests.

The Court of Appeals also determined that the officers violated respondent's Fourth Amendment rights by questioning her about her immigration status during the detention. The Supreme Court found they have repeatedly held that mere police questioning does not constitute a seizure. Since the initial detention was lawful and as the Court of Appeals did not hold that the detention was prolonged by the questioning, there was no additional seizure within the meaning of the Fourth Amendment and the officers did not need reasonable suspicion to ask respondent for her name, date and place of birth, or immigration status. 

Brown v. Payton, 125 S.Ct. 1432 (2005) (Kennedy, J.) 

• Federal Habeas Corpus - California Supreme Court’s decision not contrary to or unreasonable application of clearly established federal law

         Respondent was sentenced to death for murder and to 21 years and 8 months for rape and attempted murder. He presented no evidence in the guilt phase of the trial.  At the penalty phase, defense counsel concentrated on respondent’s postcrime behavior.

        The trial judge gave jury instructions that followed a state statute setting forth 11 different factors, labeled (a) through (k), to guide the jury in determining whether to impose a death sentence or life imprisonment. The factor (k) instruction directed jurors to consider “[a]ny other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime.” In closing, the prosecutor incorrectly stated his opinion that factor (k) did not allow them to consider anything that happened after the crime. Although he also told them several times that, in his view, they had not heard any evidence of mitigation, he discussed respondent’s evidence in considerable detail and argued that the circumstances and facts of the case, coupled with respondent’s prior violent acts, outweighed the mitigating effect of respondent’s religious conversion. The court admonished the jury that the prosecutor’s comments were merely argument, but it did not explicitly instruct that the prosecutor’s interpretation was incorrect. 

        The California Supreme Court affirmed. Applying Boyde v. California, 494 U.S. 370 (1990), which had considered the constitutionality of the factor (k) instruction, the state court held that, considering the context of the proceedings, there was no reasonable likelihood that the jury believed it was required to disregard respondent’s mitigating evidence.

        The Ninth Circuit granted habeas relief concluding that the California Supreme Court had unreasonably applied Boyde in holding the factor (k) instruction was not unconstitutionally ambiguous. The court determined that the general mitigation instruction did not make it clear to the jury that it could consider evidence concerning respondent’s postcrime religious conversion and the prosecutor was allowed to urge this erroneous interpretation.                

Held:  reversed. The California Supreme Court’s decision was not contrary to or an unreasonable application of clearly established federal law. 

Rhines v. Weber, 125 S.Ct. 1528 (2005) (O’Connor, J.)

• Federal Habeas Corpus

In this case the Court confronts the problem of a "mixed" petition for habeas corpus relief in which a state prisoner presents a federal court with a single petition containing some claims that have been exhausted in the state courts and some that have not.

Held: A district court has discretion to stay a mixed petition to allow a petitioner to present his unexhausted claims to the state court in the first instance and then to return to federal court for review of his perfected petition. 

Johnson v. United States, 125 S.Ct. 1571 (2005) (Souter, J)

• Federal Habeas Corpus

The question here is when the 1-year statute of limitations in 28 U.S.C. §2255 begins to run in a case of a prisoner's collateral attack on his federal sentence on the ground that a state conviction used to enhance that sentence has since been vacated.

Held:  the period begins when a petitioner receives notice of the order vacating the prior conviction, provided that he has sought it with due diligence in state court, after entry of judgment in the federal case with the enhanced sentence.

Small v. United States, (No. 030750, April 26) (Breyer, J).

http://supct.law.cornell.edu/supct/html/03-750.ZO.html

• Felon in possession applies to domestic, not foreign, convictions

          The United States Criminal Code makes it “unlawful for any person … who has been convicted in any court, of a crime punishable by imprisonment for a term exceeding one year … to … possess … any firearm.” 18 U.S.C. § 922 (g)(1)

(emphasis added).

The question presented focuses upon the words “convicted in any court.”

Held:  the phrase encompasses only domestic, not foreign, convictions.

Pace v. Diguglielmo, (No. 03-9627, April 27, 2005) (Rehnquist, C.J.)

http://supct.law.cornell.edu/supct/html/03-9627.ZO.html

• Federal Habeas Corpus

          The federal Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) establishes a 1-year statute of limitations for filing a federal habeas corpus petition. That limitations period is tolled, however, while “a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending.” The question in this case is whether a state postconviction petition rejected by the state court as untimely nonetheless is “properly filed”.

Held:  it is not. Because petitioner filed his federal habeas petition beyond the deadline and because he was not entitled to statutory or equitable tolling for any of that period, his federal petition is time barred.

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WEST VIRGINIA LEGISLATURE
2005 REGULAR SESSION
Selected Bills Passed Both Houses
April 26, 2005