The question on appeal to the Supreme Court was the ability of a Federal Court to raise on its own motion the question of the statute of limitations. The Supreme Court held that the Federal Courts may raise the issue of the timeliness of a writ of Habeas Corpus. But if a state purposely waives the right to raise the issue, as Montana did in this case, it is an abuse of discretion for the Federal courts to raise the issue.

Under the Anti-Terrorism and Effective Death Penalty Act (AEDPA) a writ of habeas corpus is timely if it is filed within one year of the judgment becoming final by the conclusion of direct review or or the expiration of the time to file for such review. If direct review was completed prior to the passage of AEDPA the statute began to run with the effective date of the AEDPA on April 24, 1996 Furthermore the time is tolled for any period during which post conviction relief is pending in the state court.

Wood’s direct appeals were concluded in 1990 when the Colorado Supreme Court refused to hear the case. Thus the year began to run on April 24, 1996 unless there was pending at that time in state court a motion for post conviction relief. In 1995 he had file a motion to vacate his conviction and there is no record that it was ever acted upon. Therefore Wood claimed that it was still pending in 2004 when he filed a second motion in the Colorado courts. It was denied four days after it was filed. Exactly one year after it was denied Wood filed his writ of habeas corpus in the District Court. Thus he claimed it was timely, In any case the Supreme Court ruled that since the state waived opposition to the timeliness of the writ the Tenth Circuit abused its discretion in requiring briefing on the issue and finding it untimely. As a result the Supreme Court remanded the case to the Tenth Circuit for further action.

Albert W. Florence was arrested in 2005 on a warrant that should have been removed from the books in 2003. He spent six days in two jails prior to being released. When he entered each of the jails a strip search was performed. He was observed showering with a lice killing shampoo. As he undressed officers visually searched him for scars, marks, gang tatoos, and contraband. He was required to open his mouth, lift his tongue, raise his arms, and lift his genitals.

The issue of strip searches for minor offenses has caused considerable debate in the lower courts and it should be no surprise that the Supreme Court was quite divided on the subject. The majority, consisting of Chief Justice Roberts and Justices Kennedy, Alito, Thomas, and Scalia held that the necessity to keep contraband out of the jails, to segregate feuding gang members and to prevents the transference of disease are valid penological goals and as a result jails should be allowed to conduct such searches. The minority, consisting of Justices Breyer, Kagan, Ginsburg, and Sotomeyor point to the extremely invasive nature of such searches. Furthermore, they point out that there are very few examples of people charged with minor offenses bringing contraband into the jails and that most of these can be screened out by allowing strip searches when the jailor has a reasonable suspicion that the inmate possesses contraband.

Both sides agree that future litigation might point to certain categories of inmates who should not be searched. These may include, among others, people who are not entered into the general population, individuals picked up for traffic offenses who will be taken before a magistrate shortly after arrested and released.

Overall, the issue of contraband in the jails is a major issues that leads to injury to jailors and inmates. The jails must be kept free of drugs and weapons. But perhaps the question here should be why are people charged with traffic violations and other minor offenses being put into our jails in the first place, particularly in light of the overcrowded nature of most of our jails and the cost of keeping people in jail. Sadly, The Supreme Court ruled in Atwater v. Lago Vista that people charged with infractions who cannot be sentenced to jail can be held in the jail prior to going before a magistrate for the setting of bail or prior to trial.

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James P. Paulk, an investigator for the Albany Georgia District Attorney’s office testified three times before a grand jury. In each instance the grand jury indicted Charles A. Rehberg and in each instance the indictment was dismissed. After the final dismissal Rehberg sued Paulk for violating his civil rights. The Supreme Court upheld Paulk’s claim to absolute immunity for his testimony before the Grand Jury.

The common law has long recognized a broad right of witnesses to immunity. One exception to this is for complaining witnesses. But the Supreme Court found that complaining witnesses (those who initiate the prosecution) are not necessarily the same witnesses who testify and that in most jurisdiction only the prosecutor can initiate charges. Furthermore the court found that there was no difference between law enforcement agents and civilians. It pointed out that law enforcement agents spend much of their time testifying and would be particularly subject to suits which would limit the amount of time they would have to enforce the law. ¹ Finally the court pointed out that grand jury witnesses are similar to Preliminary Examination witnesses who receive immunit.

The Court found no difference between trial witnesses and grand jury witnesses and therefore it ruled that grand jury witnesses should get the same immunity that trial witnesses get. It pointed out that allowing grand jury witnesses to be sued for their testimony could destroy the secrecy of the grand jury and act as an inhibiting force when it come to getting witnesses to testify.

What bothers me is that the immunity given to witnesses allows them to falsify charges and lie before the grand jury without being required to take personal responsibility for their actions. The court says that witnesses who also testify at trial will be subject to cross examination. But that is different from having to making good for the damage they have done. Furthermore, one of the advantages of the Grand Jury is that it screens prosecutions and prevents individuals from the damage to their reputation without some evidence that they have committed a crime. By giving immunity to witnesses the Grand Jury loses this important task.

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Monroe Ace Setser was charged in both Federal and state courts with methamphetamine related charges. The District Attorney also move to revoke a state probation in another case. While the Federal sentencing occurred prior to the state sentencing the Federal judge order that his 151 month Federal sentence run run concurrent with his state methamphetamine sentence but consecutive to the time he would get on his probation violation. The Texas state court threw a curve into the process by ordering the sentence on the five year probation violation to run concurrent with the ten year state methamphetamine case.

Since the state methamphetamine case runs concurrent to the probation violation it is obviously impossible to carry out the Federal sentence mandating that it run concurrent with the state methamphetamine crime but consecutive to the probation violation. The question before the Supreme Court was who gets to decide whether the Federal sentence will run concurrent to the state sentence or consecutive to it. Both Setser and the government argued that the Bureau of Prisons (BOP) should make the decision. The Bureau through its power to decide whether the the Federal sentence should be spent in the Federal Prison or the state prison can make that decision. If the Bureau credits Setser’s time in the state prison against his Federal sentence he will have a de facto concurrent sentence. Otherwise he will have a consecutive sentence.

But the Supreme Court said “no.” It held that the decision of whether a sentence should run concurrently or consecutively is traditionally a judicial decision and it upheld the lower court decision running the cases consecutive to each other.

It should be noted that Selser can challenge the BOP’s refusal to credit his time in state custody administratively and if need be through a writ of habeas corpus.

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The officers claimed that they were entitled to qualified immunity since they could reasonably believe that the search warrant authorizing the search was valid. Furthermore, they maintained that the officer’s reliance upon the search warrant was reasonable since the warrant had been approved by their supervisors, a deputy district attorney and the magistrate. The search warrant authorized the seizure of all guns and all gang-related materials, even though, while the defendant was a gang member, the evidence was that the assault on Kelly was not gang related and only one specified gun was involved. The court siding with the officers held that guns other than the one used to shoot at Kelly could be used to commit other crimes and gang material could be used to show ties between the residence and Bowen. ²

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Under the Aliens and Nationality Code (8 U.S.C) anyone who has committed an aggravated felony is deportable. An aggravated felony is defined as one that either : “(i) involves fraud or deceit in which the loss to the victim or victims exceeds $10,000; or (ii) is described in section 7201 of title 26 (relating to tax evasion) in which the revenue loss to the Government exceeds $10,000.” There is no doubt that the Kawashimas’ crimes involve fraud and deceit in which the government lost over $10,000. But they claim that they are only deportable for committing a tax offense if they were convicted on under clause two with violating 26 U.S.C. 7201. Since they did not plead to a violation of section 7201 they would not be deportable. This makes some sense since if section (i) refers to all crimes involving fraud and deceit section (ii) is duplicative and unnecessary. However the Supreme Court held that the plain language of clause (i) which reads:

The term ‘aggravated felony’ means—
. . . . .
“(M) an offense that—
“(i) involves fraud or deceit in which the loss to the
victim or victims exceeds $10,000;

While the normal rule that is accepted by Justice Ginsberg in her dissent is that legislation should not be interpreted in such a way that two sections duplicate each other the majority held that clause one clearly refers to all statutes involving fraud or deceit with a loss of over $10,000 including tax offenses overcomes the normal rule of statutory interpretation avoiding duplicative sections.

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The appeal in question is from a Third Circuit Court of Appeal grant of habeas corpus ordering a new trial for a 1984 murder conviction and a sentence of death. The allegation is that the District Attorney withheld Brady discovery. The main witness at the trial was a co-participant in the murder named Bernard Jackson. The defense found a police activity sheet with the case number, Jackson’s name and a claim by Jackson that one Lawrence Woodlock was a co-participant. The defense claimed that this form is exonerating evidence and the failure to turn it over vacates the conviction. The prosecution claims that the evidence is ambiguous and that Jackson was thoroughly cross examined. The additional cross examination with the activity sheet will not have a material effect upon a jury.

The divided court granted certiorari and sent the case back to the third Circuit to determine whether the activity sheet is so vague that there was no reason to turn it over to the defense. Justice Breyer argued that it was not vague, that it clearly applied to the case and that since there was no question of law certiorari should be denied and the third Circuit decision allowed to stand.

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Since Fields’ conviction was upheld in the state courts and comes to the Supreme Court as an appeal by the state of a grant of habeas corpus by the Federal Court the primary question is whether the State Court decision clearly violated Supreme Court decisions. The Supreme Court, this week, ruled that it did not. The Supreme Court reviewed its prior decisions regarding the use of Miranda in interrogations of defendants who are in custody for unrelated matters and found no decision setting a categorical rule regarding the applicability of Miranda to in custody interrogations regarding unrelated matters. In previous case it either refused to consider the issues or assumed that Miranda applied without decided whether it applied. Therefore, the Court reversed lower court decisions granting the writ of habeas corpus.

But the court went further, in what must be considered dicta, and stated that Miranda was not applicable to the situation in Fields.

For Miranda purposes the Court ruled the phrase “in custody” has a special meaning. “In determining whether a person is in custody in this sense, the initial step is to ascertain whether, in light of ‘the objective circumstances of the interrogation, . . . a reasonable person would have felt he or she was not at liberty to terminate the interrogation and leave.’” The Court gave three reasons for finding that Fields was not in custody for purposes of Miranda. First, it stated that questioning a person who is in custody does not effect the same type of shock that questioning a person who has recently been arrested. Second, a prisoner is unlikely to give an incriminating statement as one who has recently been arrested since his/her release date will not be effected by the statement. Finally, the interrogating officer has less authority to affect the release date on an in-custody inmate as compared to a recently arrested defendant.

While it is true that Fields was told that he could go back to his cell if he did not want to answer the officers questions, ¹the feeling of coercion when being interrogated in a jail setting is strong. Jailers have near complete control over inmates while they are in custody. Inmates are constantly called before custodial officers for disciplinary hearings. There is no Miranda right in these hearings and they can be disciplined if they fail to answer the officer’s questions. They can be thrown for extensive periods of time into solitary confinement. Commissary and phone rights can be taken away. They can be denied the right to have visitors. And perhaps most importantly they can lose “good time” and have their release date delayed. Thus, the coerced nature of in-custody statements is great and to deny those interrogated while in custody the right to remain silent or the right to have an attorney present violates the basic requirements of Miranda.

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The Huffs sued several police officers. The District Court granted the officers’ motion to dismiss based on qualified immunity. As to a couple of the officers the Ninth Circuit reversed and reinstated the suit. The Supreme Court in a stringing rebuke reversed the Ninth Circuit finding that the police officers had no right to enter the residence. The Supreme Court held that reasonable offiers under these conditions would fear for their safety when Ms Huff turned around and went into the house. As a result it granted the officers’ motion to dismiss based upon officer safety grounds.

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Those who are convicted after SORNA’s passage must register before getting out of custody. Those who are not given a jail sentence must register within three days of the conviction. The law does not specify when those who were convicted prior to the passage of SORNA must register. Rather the law authorizes the attorney general to determine the specific registration conditions for pre-enactment convictions.

The question before the Supreme Court this week in Reynolds v. United States is a rather limited one. But it has created a fair amount of debate among the courts of appeal which have spit their decisions. It is whether those convicted prior to the attorney general issuing his specifications had to register after the passage of the act but before the attorney general issued his specifications.

The Supreme Court ruled that there was no requirement for pre-enactment convictions to register prior to the isuance of the attorney general’s specifications. Since the attorney general must set the registration specification for a subset of those required to register (pre-enactment convictions) the court found it reasonable to believe that the condition for the attorney general to set the registration specifications modified the registration requirement for pre-enactment convictions. SORNA attempts to unify many different state registration laws. Different states require different people to register and provide time periods for this to happen. According to the Supreme Court, Congress could have felt that by putting off pre-enactment conviction from having to register until after the specifications were issued many problems could be avoided. Finally Congress did not specify a time line for pre-enactment registration it only reasonable to wait until after the attorney general general’s specifications are listed to require registration for pre-enactrment convictions.

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