For the fourth time in five years the Supreme Court has attempted to interpret the residual clause of the Armed Career Criminal Act (ACCA). The ACCA mandates a minimum sentence of fifteen years to anyone charged with possession of a gun who has three prior convictions for either a violent felony or serious drug offenses. The residual clause attempt to define what felonies are considered violent. It reads:

“any crime punishable by imprisonment for a term exceeding one year . . . that . . . is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.”

In James it held that a violent felony is one that is comparable to the violence “posed by its closest analog among the enumerated offenses.” In Begay the court ruled that dangerous felonies are “purposeful, violent,and aggressive.” Chambers applies both the “risky-as-the-least-risky test and the “purposeful, violent, and aggressive.” The “risky-as-the-least-risky test compares the risk of violence to the least risky of the named felonies in the residual clause (burglary, arson, or extortion, involves use of explosives). Last week in Sykes v. United States the Supreme Court held that felony vehicle flight is a violent felony for purposes of the ACCA because “[t]he residual clause imposes enhanced punishment for unlawful possession of the firearm when the relevant prior offenses involved a potential risk of physical injury similar to that presented by burglary, extortion, arson, and crimes involving use of explosives.”

The Supreme Court uses a categorical approach when determining if a prior conviction is a violent crime for purposes of the ACCA. By this it means that it does not look at the alleged conduct leading to the conviction to determine if it involved a potential risk of physical injury. Rather it looks at the elements of the crime to make the determination. Sykes was convicted of possession of a firearm by a convicted felon He has at least three prior convictions. Two of the convictions were for robbery. These are clearly violent felonies. But to sentence him under the ACCA to a minimum of fifteen years there must be three prior violent felonies. He also has a prior conviction for vehicular flight to avoid and arrest. The issue before the Supreme Court was whether flight is a crime of violence. Using various statistics the Supreme Court found that it was a crime of violence because the risk of someone getting injured during flight is greater than the risk of physical injury in either arson or burglary, two of the offenses listed in the ACCA.

The problem with this as Justices Scalia and Kagan point out in dissents ¹ is that vehicular flight is not similar to any of the named offenses. Justice Kagan points out that Indiana,like other states, has several different flight offenses. The particular statute under which Sykes was arrested does not require a serious risk of injury. Other sections do. Justice Kagan said that since the normal behavior leading to a conviction under the section of Sykes conviction does not require violence. Therefore convictions under this section should not be considered violent under the ACCA.

Justice Scalia stated that despite all of the efforts to interpret the residual clause, no explanation has been able to clarify the section. The constitution requires that laws “give a person of ordinarily intelligence fair notice” of what behavior violates the law. This is particularly necessary with criminal laws where defendants may be facing a significant loss of freedom. According to Justice Scalia the clause is so vague and impossible to understand that it violates the constitutional standard for notice. He would limit enforcement of the statute to the name offenses. Of course Congress can amend the statute to add additional offense or otherwise make it more clear.

Sixth Circuit Court of Appeals

If “the needs of law enforcement so compelling that [a] warrantless search is objectively reasonable under the Fourth Amendment ” police may enter a residence without getting a search warrant. This is called the exigent circumstances exception to the Fourth Amendment. For example police may enter a residence if they have reason to believe that evidence is being destroyed.

Some courts have ruled that the exigent circumstances rule does not apply when the police create the exigent circumstances. In Kentucky v, King police observed a crack cocaine sale outside of an apartment house. The culprits ran into the building. They were chased by officers. The officers knew that they went into one of two apartments. Out of one of the apartments the officers could smell a strong odor of marijuana, ¹ The officer knocked loudly at the door that they smelled the marijuana coming from. No one answered the door. ² The officers heard people moving around in the apartment and they thought that the residents were attempting to destroy the marijuana. ³ The officers yelled “police” and when no one answered the door knocked it down. ⁴

The defense argued, and the Kentucky Supreme Court agreed that by knocking loudly on the door the officers created the exigency and then used it to enter the apartment. According to the United States Supreme Court the essence of the Fourth Amendment is reasonableness and any search that is reasonable is acceptable. ⁵

While there are a number of justifications for the “police-created exigency” doctrine my favorite is that it allows any officer to create an exigency at any time. As Justice Ginsburg said in dissent:

The Court today arms the police with a way routinely to dishonor the Fourth Amendment ’s warrant requirement in drug cases. In lieu of presenting their evidence to a neutral magistrate, police officers may now knock, listen, then break the door down, never mind that they had ample time to obtain a warrant. I dissent from the Court’s reduction of the Fourth Amendment ’s force.

All the officer has to do is say that he/she hears people moving around in the residence or hears a toilet flushing in the residence and they can claim that they thought that evidence was being destroyed. Then they kick the door down or walk in if its not locked. ⁶

The Supreme Court reversed another Ninth Circuit grant of habeas corpus. In Cullen v. Pinholster the Supreme Court not only denied Pinholster’s writ of habeas corpus but it also severely limited the type of evidence a Federal Court can consider in habeas corpus proceedings reviewing the denial of habeas corpus by state courts.

The Court ruled that in reviewing state court actions Federal courts can only consider the evidence heard by the state court.

Pinholster was convicted of first degree murder in California and sentenced to death. In the penalty phase of his trial his attorneys called only his mother as a witness who testified about his troubled childhood. His lawyers consulted with a psychiatrist but decided not to call him when he said that Pinholster was not psychotic.

On habeas he argued incompetency of counsel due to his lawyer’s failure to follow-up on the psychiatric report. It was denied by the state courts including the California Supreme Court.

According to the Supreme Court the job of a Federal Court reviewing a state court action is not to seek the truth. Rather it is to guarantee the petitioner received due process in the state courts. Specifically if the state court decided the issue on the merits, Federal courts are limited to reversing the state court action if it:

“(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

“(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.”

Furthermore, since the goal is to insure that the court below used used the proper process to rule on the merits the Supreme Court ruled that the Federal Courts are limited to considering the evidence that was presented to the State Courts. Pinholster presented additional experts and evidence of trial counsel’s incompetence to the Federal Courts but the Supreme Court ruled that this evidence was inadmissible since it was not presented to the state courts.

One difference between appeals and writs of habeas corpus is that appeals cover matters that happened in the courtroom. Thus since there is a court reporter’s transcript of the matter there is no reason to allow evidence on appeal. The questions on appeal are legal questions. They are settled by consideration of brief written generally by attorneys giving legal reasons that errors were made in a trial court.

On the other hand writs of habeas corpus generally consider matters, such as incompetence of counsel that may not be evident from the transcripts and are settled by judges after hearing evidence. Thus to ask a trial court (eg. the Federal District Courts) to rule on a habeas without taking evidence is an anomaly and is contrary to the way the common law system operates.

Khalil Kholi was sentenced to ten consecutive terms of life in prison for first-degree sexual assault in 1993. Three years later the Rhode Island Supreme Court affirmed his conviction on appeal.

On May 16, 1996 he filed a motion to reduce his sentence and on May 23, 1997 he filed a Motion for a Post Conviction Remedy. Both were denied. On January 16, 1998 the state Supreme Court upheld the denial of the motion to reduce the sentence and on December 14, 2006 it upheld the denial of the request for post conviction relief.

Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) a writ of habeas corpus in Federal Court is only timely if it is filed within one year of the case becoming final on direct appeal. However time is tolled while the case is under collateral review in the state court.

Kholi filed a habeas in Federal Court but for it to be timely under the AEDPA both the motion to reduce the sentence and the request for Post Conviction Remedy must be considered collateral review. No one questioned the request for Post Conviction Remedy which is similar to a writ of habeas corpus. But the state challenged the motion to reduce the sentence. The state said that since the request was addressed to the court’s discretion, and not as a matter of law, it was not on collateral review. But in a rare victory for defendants the Supreme Court upheld Kholi’s right to file his Petition for a Writ of Habeas Corpus.

The term “collateral” means not direct. Thus anything that is not a direct review is a collateral review and the motion to reduce the sentence is not part of the direct review. Furthermore, since it is a reconsideration of the sentence it is a review. In any case, when it comes to whether or not a judge used the proper discretion in determining a sentence the line between what is a matter of law and what is not is a close one often left to appellate judges.

Thus the Supreme Court upheld Kholi’s right to file his writ of habeas corpus. Of course that doesn’t mean that he wins, it only means he has the right to have it heard.

The Supreme Court in Michigan v. Bryant yesterday seriously limited the 2004 decision in Crawford v. Washington. In Crawford the Supreme Court held that the Confrontation Clause mandated that testimonial hearsay only be admitted into evidence if the witness is unavailable and the defendant had a prior chance to cross examine the witness.

But Crawford did not define “testimonial” well. Generally testimonial statements are statements that could be used as evidence. In Davis, the Supreme Court held that a statement is testimonial “when the circumstances objectively indi-cate . . . that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.” Post Crawford cases exempted statements that had a “primary purpose . . . to enable police assistance to meet an ongoing emergency.” But this turns out not to be very clear either and in the view of the Bryant majority not very comprehensive.

The police received a phone call in the early hours of April 29, 2001 stating a man had been shot and that he was at a gasoline station. Five officer independently arrived on the scene. Each officer asked the man, what happened, who did it, and where did it happen. He told them that Rick shot him and that it happened at Rick’s house. The victim, Anthony Covington later died of the injuries.

The prosecutor then entered Covington’s statements into evidence at trial. The Michigan Supreme Court reversed the conviction on confrontation grounds and the state appealed to the United States Supreme Court. The Supreme Court, in a decision by Justice Sotomeyer yesterday reversed the decision of the Michigan Supreme Court. The U. S. Supreme Court held that Covington’s answers to the questions were not testimonial in that the police were fulfilling their duty to protect citizens during an ongoing emergency.

The court came to the conclusion that the police officers were attempting to prevent other people from being shot by trying to find out where the shooter was located and whether the victim was in danger of being shot again. But as Justice Scalia points out in dissent the questions asked by the police were clearly testimonial. They did not ask questions regarding the serious injuries to Covington. All five officers consecutively asked the same questions to make sure that the testimony would not change and one of the officers admitted that considering the fact that the testimony would be preserved if Covington died. There was no shooter nearby and it would be unlikely if there was a shooter nearby that he/she would shoot anyone with five police officers surrounding Covington. The crime had been commited and there was no current emergency. As a result there was no public emergency that needed to be handled and the police were carrying out their duty to collect evidence and testimony for trial. Both Justices Sotomeyer and Scalia agree that the statements must be looked at objectively. But Sotomeyer looks at the statements from the point of view of the police while Scalia looks at the statments from the point of view of the witness. After all it is the witness’s statement that must pass confrontation grounds approval. It is clear that Covington was attempting to provide information that could be used in a prosecution.

A Federal Court will not review a state denial of a writ of habeas corpus if the state ruling is based upon an independent state ground that is independent of the federal question and adequate to support the judgment.To be considered an adequate state ground the rule must be “firmly established and regularly followed.”

Walker, Warden et al v. Martin decided yesterday by the Supreme Court builds upon Beard v. Kindler, decided last year. The Supreme Court held in Beard that a rule can be “firmly established and regularly followed” even if it gives judges a certain amount of discretion in applying the rule.

The question facing the court in Walker was whether the California rule defining timeliness for filing a writ of habeas corpus qualifies as “firmly established and regularly followed.” Unlike most other jurisdictions, California does not set a specific time period in which writs of habeas corpus must be filed in non-capital cases. Rather California requires that they be filed “as promptly as the circumstances allow.” Furthermore, the California Supreme Court sometimes denies a writ on its merits even if it is untimely. However, as the Supreme Court pointed out in Kindler the mere fact that a court has discretion does not mean that the rule is not regularly followed. The rule can regularly give the court discretion. And that is what the Supreme Court found in Walker. It found that the California courts regularly followed the rule giving the court discretion and there was no claim that the discretion was used unwisely in Walker.

In Walker the defendant raised the issue of incompetence of counsel only in its second state writ which occurred five years after the defendant had been found guilty. The state court found that under these conditions and in face of the fact that the defendant did not provide any reason for its late filing that the writ was untimely. The District Court agreed but the Ninth Circuit reversed the District Court. For the fourth time this year the Supreme Court reversed a Ninth Circuit grant of habeas corpus holding that the California ruled provided an unreviewable independent ground. It reinstated the state court decision finding the petition for a writ of habeas corpus untimely.

The First Circuit Court of Appeals reversed two District Court decisions excluding cooperating witnesses from testifying based on the alleged failure of the government to provide Brady discovery. The Supreme Court held in Brady v. Maryland that the government had a duty to provide the defense with all exonerating evidence. By exonerating evidence the Supreme Court meant evidence that is “favorable to the accused and material to guilt or punishment.” Specifically it requires the provision of evidence that is either exculpatory or impeaching in nature.

Joseph Prochilo is charged with possession of a firearm by a convicted felon and Elvis Guerrero is charged with attempting to buy cocaine for purpose of sale in separate cases. The cases against both men rely primarily upon cooperating witnesses. In each case the government provided initial Brady discovery relating to the cooperating witnesses. Defense counsel in both cases moved for further discovery.

Prochilo requested:

(1) details regarding the witness’s work with the United States Secret Service, the Essex County Sheriff’s Department, the DEA, and the FBI; (2) information regarding the other ATF cases on which the cooperator worked; (3) the witness’s cooperation agreements with government agencies other than the ATF; (4) a description of other firearms seized by the government as a result of the witness’s cooperation; (5) information about the cooperator’s contacts with other government agencies as they related to other matters or other investigations; and (6) a list of all benefits the witness received as a result of these contacts.

Guerrero requested:

to produce all information in its possession, custody, or control, regarding the witness, and identifying several categories of information.

Prochilo said that the requested information might reveal that the cooperating witness is “flawed”, that the discovery could help substantiate an entrapment defense, that many of the cases that the cooperating witness handled were thrown out requiring an explanation, and because only his counsel, not the government or the district court, will be able to judge what evidence is both favorable to him and material.

Guerrero claims that the discovery is needed for impeachment purposes.

The First Circuit reversed the District Court decisions in both cases. It held that for the defendants to obtain a court order for Brady material beyond what the government provides the defense must make specific requests for specific items and give specific reasons why the discovery is necessary. “[T]he defendant should be able to articulate with some specificity what evidence he hopes to find in the requested materials, why he thinks the materials contain this evidence, and finally, why this evidence would be both favorable to him and material.”

The problem with this is that you are asking defense counsel to request specific items from the prosecution’s file. If the defense knew what was in the file the defense would not need to ask for discovery. It is the basic requirement of due process and fairness that originally led the Supreme Court to require discovery of exculpatory evidence that is violated when you require the defendant to list specific items out of the government’s file so that he/she can use the items to impeach the cooperating witness.

The Supreme Court heard argument this week in Kentucky v. King. The State of Kentucky ¹wants to reverse a Kentucky Supreme Court decision suppressing evidence.

The issue here is whether police can enter a residence without a search warrant if they smell marijuana in the residence. The police smelled marijuana coming from an apartment. They knocked on the door. Then athey heard a noise inside that might have been someone attempting to destroy the contraband. When no one opened the door they knocked it down, finding marijuana and cocaine in the apartment. It is not whether the smell of marijuana gives them probable cause to get a warrant but rather whether they need a warrant to enter the residence.

The Kentucky Supreme Court ruled that exigent circumstances did not exist and therefore the evidence must be suppressed. The existence of exigent circumstances is an exception to the Fourth Amendment’s warrant requirement. But the Kentucky court held that the police were not in hot pursuit and any attempt to destroy the marijuana was police initiated. The Court held that any attempt to destroy the marijuana was the result of the officers knocking on the door and that the police should not benefit from the officers forcing an attempt to destroy the evidence. Instead of knocking on the door the police could have gotten a search warrant. By doing so they would not have alarmed the residents and the marijuana would not have been destroyed.

The State of Kentucky argues that since the police did nothing illegal, the search should be upheld. It argues that in any case where the police have both probable cause and exigent circumstances the officers can enter the house without a search warrant as long as they have done nothing illegal.

This would continue the trend of the last forty years of eviscerating the warrant requirement. It will be easy for an officer, upon smelling marijuana or obtaining probable cause to say I heard a noise and the noise may have been an effort to destroy the evidence. In fact by knocking on the door and yelling police they can then expect some effort to destroy the evidence. At that point if the appeal is granted, the officers may enter the residence to prevent destruction of evidence.

In its first criminal justice decision of the 2010-1011 session, Abbott v. United States the Supreme Court tackled a split in the circuits over 18 U. S. C. Section 924(c). Section 924(c) criminalizes possession of a weapon while being involved in a violent or drug-related offense. It states in pertinent part:

(c)(1)(A) Except to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law, any person who, during and in relation to any crime of violence or drug trafficking crime (including a crime of violence or drug trafficking crime that provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device) for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime -
(i) be sentenced to a term of imprisonment of not less than 5 years;
(ii) if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years; and
(iii) if the firearm is discharged, be sentenced to a term of imprisonment of not less than 10 years. . .

The question deals with the first phrase. Kevin Abbott and Carlos Rashad Gould in separate cases were convicted inter alia with violations of Section 924(c) Each argued in the trial courts and on appeal that the first phrase prevented them from being punished for violating the section. They claimed that since they were convicted of other offenses that mandated a minimum sentence of over five years they could not be punished for a violation of Section 924(c). After all the statute says, ” Except to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law.” Gould argued that the ten year mandatory sentence he received for possession of narcotics with the intent to distribute it prevented the court from imposing Section 924(c)’s five year mandatory minimum sentence and Gould argued that his fifteen year mandatory minimum sentence for possession of a weapon by a convicted felon also prevented imposition of the 924(c) sentence.

But the Supreme Court unanimoulsly ¹ruled that the “other provision of law” clause referred only to statutes that outlawed conduct identical to Section 924(c). It pointed out that the questioned language was added to the section in 1998 as part of an effort to strenghthen the law and accepting the defendant’s argument would weaken the law. Accepting the defendant’s interpretation would allow some defendants not to be punished at all for possessing a gun where they have a higher mandatory minimum under other provisions of law. Also because those convicted only of lesser crimes would get the additional five years and those convicted of greater crimes would not in some case those who are guilty of only lesser crimes might do more time than those guilty of greater crimes.

Considering these factors the Supreme Court decided that Congress could not have wanted the five year mandatory minimum to apply only to those not convicted of any other offense with a mandatory minimum of five years or less.