Case Update - Supreme Court

Question 1

Involuntary DNA Sample

Answer 1

Maryland v. King 2013
Facts: DNA collected during booking for felony assault charges; matched to CODIS for unsolved rape; D moved to suppress based on 4th Amendment Violation
Held: Arrest supported by probable cause of a serious offense and bring subject to station, DNA cheek swab is like fingerprinting or photographing, legitimate police booking procedure that is reasonable under 4th A.

Question 2

Dog sniff at person’s door

Answer 2

Florida v. Jardines 2013
Facts: Had dog at front door sniffing, giving probable cause for warrant to search
Held: Scalia - use of training police dogs to investigate the home and its immediate surroundings is a search within 4th A. - intrusion on property rights

Question 3

Dog Alert on Motor Vehicle

Answer 3

Florida v. Harris 2013
Facts: Dog alert on vehicle was insufficient for warrantless search of motor vehicle, absent additional information about degree of dog’s reliability
Holding: (Kagan - “Sniff up to snuff” Tests) May establish probable cause by demonstrating officer had reasonable basis for believing the dog to be reliable based on the totality of circumstances - must be objectively reasonable for officer to rely on

Question 4

Detention Incident to Search Warrant

Answer 4

Bailey v. U.S. 2013
Facts: Before execution of warrant, police saw Bailey leave house subject of warrant; police stopped him a mile away; searched his case; found drugs
Holding: Michigan v. Summers (allowing detention incident to search warrant) does not extend to detention of persons not in premises or no in “immediate vicinity.”
Factors:
1. lawful limits of premises;
2. Subject within line of sight of premises?
3. Ease of reentry from subject’s location
BE CAREFUL - could have had reasonable suspicion for Bailey’s stop

Question 5

Co-tennant consent to search home

Answer 5

Fernandez v. California 2013
Facts: Responding to assault, officer did a protective sweep of home and found tenant, Fernandez. Fernandez was arrested and removed from scene. Fernandez objected to officers searching. Officers took Fernandez away and asked “Co-tennant” for consent.
Held: A person must be personally present to object when police ask co-tennant for consent, regardless of whether D previously made objection.

Question 6

Commenting on Prearrest Silence of Police Questioning

Answer 6

Salinas v. Texas 2013
Facts: Officers questioned Salinas after police arrested him and properly Mirandized him. He just remained silent. Prosecutor commented on this silence in argument.
Holding: Silence fails to invoke right to remain silence in response to questions, so his silence was fair game at trial. Silence must be expressly invoked.
NOTE: What actually invokes silence? Pretty much anything but silence.

Question 7

In Texas, and like states, can a person petition for federal writ for ineffective assistance, before state writ procedure is over?

Answer 7

Trevino v. Thaler 2013
When, as here, a state’s procedural framework, by reason of its design and operation, makes it highly unlikely in a typical case that a defendant will have a meaningful opportunity to raise on direct appeal a claim that his trial counsel provided ineffective assistance, the good cause exception recognized in Martinez v. Ryan applies.

Question 8

What makes Texas procedure for presenting ineffective assistance of counsel “unlikely” until collateral attack?

Answer 8

Trevino v. Thaler 2013
Motion-for-new-trial “vehicle is often inadequate because of time constraints and because the trial record has generally not been transcribed at this point.” Torres, supra, at 475. See Tex. Rule App. Proc. 21.4 (2013) (motion for a new trial must be made within 30 days of sentencing); Rules 21.8(a), (c) (trial court must dispose of motion within 75 days of sentencing); Rules 35.2(b), 35.3(c) (transcript must be prepared within 120 days of sentencing where a motion for a new trial is filed and this deadline may be extended).

Question 9

Can a person overcome procedural default of habeas review?

Answer 9

“[t]he doctrine barring procedurally defaulted claims from being heard is not without exceptions. A prisoner may obtain federal review of a defaulted claim by showing cause for the default and prejudice from a violation of federal law.”

Question 10

What is the analysis for overcoming procedural default for habeas review?

Answer 10

Trevino v. Thaler 2013
When may procedural default be overcome by cause:
(1) the claim of “ineffective assistance of trial counsel” was a “substantial” claim;
(2) the “cause” consisted of there being “no counsel” or only “ineffective” counsel during the state collateral review proceeding;
(3) the state collateral review proceeding was the “initial” review proceeding in respect to the “ineffective-assistance-of-trial-counsel claim”; and (4) state law requires that an “ineffective assistance of trial counsel [claim] . . . be raised in an initial-review collateral proceeding.”

Question 11

Vote in Trevino v. Thaler 2013?

Answer 11

5-4

Breyer wrote opinion

Question 12

Can failure to timely appoint or pay counsel result in a Speedy Trial violation under Barker v. Wingo?

Answer 12

Boyer v. Louisiana was dismissed.
But the answer is probably yes. But appointed counsel is not an actor of the state, so must focus on action of court or state.

Question 13

Can Federal law require a sex offender convicted under Federal law to register under new registration act?

Answer 13

United States v. Kebodeaux 2013 Breyer 7-2
Yes. As applied Kebodeaux, the registration requirements of the Sex Offender Registration and Notification Act (SORNA) fall within the scope of Congress’s authority under the Necessary and Proper Clause.
CRT NOTE: Kebodeaux was already required to register under the pre-SORNA law, so he was already subject to federal registration.

Question 14

Does attempting to compel a person to recommend that an employer approve an investment constitute extortion under Federal law?

Answer 14

Sekhar v. U.S.2013 Scalia 9-0
No. Trying to obtain a recommendation is not “the obtaining of property from another” under the Hobbs Act. 18 USC § 1951 - Interference with commerce by threats or violence - “Extortion” is defined as “obtaining property”

Question 15

Does judicial participation in plea negotiations require automatic vacatur?

Answer 15

U.S. v. Davila 2013 9-0
No, this is a violation of FRCP 11, and other parts of Rule 11 are subject to “plain error” review if D doesn’t object. It’s not structural error that requires automatic reversal. The question is it was “reasonably probable that D would have exercised his right to trial, but for the magistrates comments.”

Question 16

Is Padilla retroactive?

Answer 16

Chaidez v. U.S. 2013 7-2 Kagan
No. It’s not a new rule under Teague. It’s a rule of criminal procedure, so it doesn’t apply to convictions that became final before Padilla. This was a writ of coram nobis.
NOTE: Padilla opinion Mar 31, 2010

Question 17

Does the D carry the burden on a withdrawal from conspiracy BEFORE statute of limitation, or does the burden shift to the government?

Answer 17

Smith v. U.S. 2013 9-0 Scalia
Overruling 5th Cir. presedent
Common law dictates withdrawal is an “affirmative defense” so traditionally the burden rests with the D, regardless of when the withdrawal took place. Congress has not changed this common law rule.

Question 18

When a directed verdict is based on an error of law, does jeopardy attach?

Answer 18

Evans v. Michigan 2013
Judge improperly granted directed verdict based on “dwelling” not being “other real property” in arson statute. However, Double Jeopardy bars retrial.

Question 19

Does retroactive application of new Guideline violate 8th Amendment Ex Post Facto clause?

Answer 19

Peugh v. U.S. 2013
Yes, if D is sentenced under a guideline manual that is more severe than what was in effect at the time of offense. Even though Guidelines are “advisory” they still serve as the “initial benchmark” and “starting point” in district courts, because there is a presumption of reasonableness.

Question 20

Does Apprendi apply to mandatory minimums?

Answer 20

Alleyne v. U.S. 2013 5-4
Yes, (Court overruled Harris). D was convicted of robbery and use of a firearm in retaliation to a crime of violence, however he was acquitted of “Brandishing a Firearm.” Yet, the court gound that he brandished a firearm, and elevated the mandatory minimum from 5 to 7 years.
Court reasoned that Apprendi requires a jury to find all facts that “fix the penalty range” of a crime. Mandatory minimum is just as important max.

Question 21

Do prior convictions have to be found true by jury to enhance punishment range?

Answer 21

Almendarez-Torres v. U.S. 1998
No. “Penalty Provisions” can be found by judge. “New Crimes” have to be found by jury BRD. The enhanced punishment was a “Penalty Provision.”

NOTE: Alleyne (re min. mand.) may be the way to attack this. FN 1 of Alleyne

Question 22

For purposes of ACCA, when D’s prior conviction indicates in the Charging Instrument and the Plea Colloquy that he indeed did violate “generic” burglary statute, can it be used, even if statute doesn’t fit “generic” statute?

Answer 22

Descamps v. U.S. 2013 8-1 Kagan
D’s prior was under California statute that didn’t require the “unprivileged” entry for burglary. The plea colloquy and indictment indicated it was an “unprivileged” entry. The district court used “modified categorical approach.”
Holding: “Modified Categorical Approach” is only used for DIVISIBLE statutes. So, cannot rely on Shepard documents.

Question 23

What, if any, causal relationship or nexus between the defendant’s conduct and the victim’s harm or damages must the government or the victim establish in order to recover restitution under 18 U.S.C. Sec. 2259?

Answer 23

Paroline v. U.S. - Argument Not Set
5th Cir. en banc 18 USC § 2259 only imposes a “proximate result;” it does not require proximate cause. The plain language of the statute dictates that a district court must award restitution for the full amount of losses. “Sister Courts” disagree.
2259 is restitution in child sex abuse cases. This was a child porn case.

Question 24

When must “plain error” be “plain”?

Answer 24

Henderson v. U.S. 2013
On appeal. Henderson was sentenced to imprisonment so he could receive drug treatment. While Hendeson was on appeal, Sup. Crt. held in Tapia that you couldn’t imprison for purposes of treatment. Henderson filed a Rule 35 Reduction of Sentence Motion - district court denied - 5th Cir. said, Rule 35 cannot preserve error, and this is no “plain error” because judgment entered (and on appeal). Sup. Crt. says that “plain” within meaning of Rule 52(b) could BECOME “plain’ while case was on appeal, reversed 5th Cir.

Question 25

Is small amount of marijuana exchanged for no money an “Aggravated Felony” under Immigration and Nationality Act?

Answer 25

Moncrieffe v. Holder 2013
No. Aggravated Felony is “illicit trafficking in a controlled substance” so using categorical approach (and common sense) simple possession of a small about of drugs is not an Agg. Felony, especially with not inten to recieve money! Held that even if state says it’s a felony, if Controlled Substance Act doesn’t, then it’s not.
This overruled the 5th Cir. opinion

Question 26

Is “actual innocence” a gateway for out-of-time habeas petition?

Answer 26

McQuiggin v. Perkins 2013
The Antiterrorism and Effective Death Penalty Act contains a 1 years statute of limitations from date of factual predicate that could’ve been found by due diligence. Tolling of that SOL only occurs if: (1) D been pursuing rights diligently; and (2) some extraordinary circumstances prevented timely filing. (Holland v. Florida 2010). Convincing showing of actual innocence serves a “gateway” to habeas relief like Shulp & House gateway.

Question 27

Does the federal habeas suspend when prisoner is incompetent?

Answer 27

Ryan v. Gonzales and Tibbals v. Carter 2013
No. “Attorneys,” the Court said, “are quite capable of reviewing the state-court record, identifying legal errors, and marshaling relevant arguments, even without their clients’ assistance.”

Question 28

How does a state’s high court’s decision of first impression impact federal habeas?

Answer 28

Metrish v. Lancaster 2013 9-0
Facts: In 1st trial, D had “diminished capacity” defense; before retrial Michigan Sup. Crt. decided that “diminished capacity” was not a defense in Mich.
Under habeas releif for state prisoners, 28 USC 2254, if a petitioner seeks relief from a state court’s ruling he must show: (1) decision contrary to, or unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
In this case, Michigan Supreme Court merely cleared up a split in the state’s lower courts.
Courts says, foreseeable and defensible.

Question 29

What must a D show for ineffective claim in “rejecting a plea offer”?

Answer 29

Lafler v. Cooper 2012
If ineffective advice led to an offer’s rejection, and where the prejudice alleged is having to stand trial, D must show: (1)that but for the ineffective advice, there is a “reasonable probability” that the plea offer would have been presented to the court; (2) that the court would have accepted its terms; (3) and that the conviction or sentence, or both, under the offer’s terms would have been less severe than under the actual judgment and sentence imposed.

Lawyer advised that Gov’t wouldn’t be able to proove “intent” because victim show below waist - oops