Greetings, Court fans!
Notwithstanding a plethora of decisions in recent years on both the application of the mandatory minimum sentence under the Armed Career Criminals Act (“ACCA”) and the one year limitation period to file habeas petitions under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), open questions apparently persist – resulting in two more decisions released last week. (And Congress passed AEDPA to reduce post-sentencing litigation!)
We’ll turn first to the ACCA, which imposes a 15-year mandatory minimum sentence on a felon in possession if the offender has three prior convictions for certain drug crimes or “violent felonies.” Under the ACCA, a violent felony includes crimes involving “the use, attempted use, or threatened use of physical force against another,” as well as the specified crimes of “burglary, arson, or extortion, [or crimes] involv[ing] the use of explosive.” If Congress had stopped there, the Court might not be bemoaning the number of ACCA cases with which it continues to be faced, but alas, it went on to create a vague catch-all for crimes that “otherwise involve[] conduct that presents a serious potential risk of physical injury to another.”
In Chambers v. United States (06-11206), a nearly unanimous Court led by Justice Breyer, determined that failure to report for penal confinement falls outside the catch-all. The government had argued that because analysis under the ACCA is categorical (i.e., the Court looks at the nature of the generic crime as opposed to how the defendant engaged in the crime on a particular occasion) and because “failure to report” is combined with “escape from a penal institution” in Illinois’ statute, there is really only one crime to analyze and it carries with it a serious risk of physical injury. The Court, however, found failure to report entirely distinct from escape, notwithstanding that it appeared in the same statutory section, and concluded that this kind of “inaction” simply didn’t suggest the “purposeful, ‘violent,’ and ‘aggressive’ conduct” at which the ACCA is aimed. Further, the scant statistical evidence available to the Court did not suggest that those who fail to report are significantly more likely than others to engage in violent conduct. Justice Alito, joined by Justice Thomas, concurred in the judgment to beg Congress to rescue the Court from “the mire into which ACCA’s draftsmanship and [the] ‘categorical approach’ have left us.” In their view, Congress likely intended Courts to look at whether the defendant’s actual conduct in a given circumstance carried with it a serious risk of injury. Having jettisoned this individualized approach, the Court was left in a quagmire of trying to categorize crimes without any good way to do so. The only way out of this dark thicket is for Congress to now provide a list of the crimes it really intends to cover.
Turning to AEDPA, in Jimenez v. Quarterman (07-6984), Justice Thomas led a unified Court in holding that where a petitioner is permitted by state law to file an out-of-time appeal of his conviction, the conviction is not final for purposes of AEDPA’s one year limitation period within which to file a federal habeas petition, until the out-of-time appeal is completed and the time for seeking cert to the Supreme Court has expired. While Jimenez’s conviction initially became final in 1996, he later convinced the Texas state courts to reopen the judgment and permit him to file an out-of-time appeal. He lost the appeal, but the judgment didn’t become final this time around until January 2004, after which he filed a state habeas petition, which was denied in June 2005. Undaunted, Jimenez filed a federal habeas petition in July 2005. The district court found the petition untimely because it believed in a “linear” limitations period that began in 1996, ended in 1997, and couldn’t be revived after its expiration. The Fifth Circuit found this logic so unassailable that it even denied Jimenez a certificate of appealability (concluding reasonable jurists would not find the correctness of the district court’s decision debatable)! Apparently, the Justices aren’t reasonable, because disagree they did — unanimously holding that where a state court reopens a criminal judgment, it is no longer final, and does not become final until all direct appeals are exhausted and the time for seeking cert has expired.
The Court issued decisions in two more criminal cases later in the week, Oregon v. Ice (07-901), and Herring v. United States (07-513). We’ll bring you those decisions in a separate Update. In short, however, Ice holds that a state sentencing scheme may give the trial judge, rather than the jury, the authority to make predicate factual findings necessary to the imposition of a consecutive (as opposed to concurrent) sentence without violating the holdings of Aprendi and Blakely. In Herring, the Court further cut back the exclusionary rule, holding 5-4 that where isolated incidents of negligence (here, the failure to update a computer with information recalling a warrant) lead officers to conduct an unlawful search, the evidence found during the search need not be excluded.
We’ll be back in your inbox shortly. Until then, we hope you enjoyed a great extended weekend!
Kim & Ken
From the Appellate Practice Group at Wiggin and Dana
For more information, contact Kim Rinehart, Ken Heath, or any other member of the Practice Group at 203-498-4400
For more information, contact Kim Rinehart, Ken Heath, or any other member of the Practice Group at 203-498-4400