Criminal Law Alert

Certiorari Granted: January 14, 2013. Summaries by Dan Schweitzer at NAAG.

On, Monday, January 14, 2013, the Court granted certiorari in the following cases:

Salinas v. Texas, 12-246. The Court will address “[w]hether or under what circumstances the Fifth Amendment’s Self-Incrimination Clause protects a defendant’s refusal to answer law enforcement questioning before he has been arrested or read his Miranda rights.” The Texas Court of Criminal Appeals held that pre-Miranda silence is not protected by the Fifth Amendment, and that prosecutors therefore acted properly when they argued to the jury that petitioner’s silence during a pre-arrest interview demonstrated his guilt.

United States v. Kebodeaux, 12-418. In 2006 Congress enacted the Sex Offender Registration and Notification Act (SORNA), which among other things requires persons convicted of certain federal sex offenses to register as a sex offender. The United States seeks review of two holdings by the Fifth Circuit stemming out of a prosecution of respondent for failing to register under SORNA: (1) That respondent ─ who was convicted of a military sex offense and completed service of his sentence before SORNA’s enactment ─ was not under a pre-SORNA federal registration obligation; and (2) that Congress lacks the authority under Article I of the Constitution to impose SORNA’s registration requirements upon persons who completed their federal sentence before SORNA’s enactment.

Sekhar v. United States, 12-357. The Hobbs Act, 18 U.S.C. §1951, makes it a crime to, among other things, obtain “property” by means of extortion. At issue is whether petitioner committed that crime when he attempted to blackmail a government attorney into recommending that a government pension fund invest in a company from which petitioner sought to profit. Petitioner argues that an individual’s right to make “business decisions” free from interference does not qualify as property under the Hobbs Act.

“Petitions We’re Watching.” Summaries @ SCOTUS.

The following cases are up for consideration at the Justices’ private conference on January 18, 2013:

Docket: 12-547
Metrish v. Lancaster
Issue(s): (1) Whether the Michigan Supreme Court’s recognition that a state statute abolished the long-maligned diminished-capacity defense was an “unexpected and indefensible” change in a common-law doctrine of criminal law under this Court’s retroactivity jurisprudence, see Rogers v. Tennessee; and (2) whether the Michigan Court of Appeals’ retroactive application of the Michigan Supreme Court’s decision was “so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement” so as to justify habeas relief, see Harrington v. Richter.

Docket: 12-492
Pearson v. Winston
Issue(s): (1) Whether the Fourth Circuit created an impermissible end-run around Harrington v. Richter, Cullen v. Pinholster, and the Antiterrorism and Effective Death Penalty Act by holding that a state court’s merits determination is not an “adjudication on the merits” whenever the state prisoner later presents the federal court with new material evidence and the state court decided the ineffective assistance claim without an evidentiary hearing and (2) whether the Fourth Circuit wrongly ignored 28 U.S.C. § 2254(d) and Strickland v. Washington in concluding as a de novo matter, and contrary to the Virginia Supreme Court and Strickland, that trial counsel were ineffective for deciding not to argue mental retardation at sentencing?

Docket: 12-414
Burt v. Titlow
Issue(s): (1) Whether the Sixth Circuit failed to give appropriate deference to a Michigan state court under Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) in holding that defense counsel was constitutionally ineffective for allowing respondent to maintain his claim of innocence; (2) whether a convicted defendant’s subjective testimony that he would have accepted a plea but for ineffective assistance, is, standing alone, sufficient to demonstrate a reasonable probability that defendant would have accepted the plea; and (3) whether Lafler v. Cooper always requires a state trial court to resentence a defendant who shows a reasonable probability that he would have accepted a plea offer but for ineffective assistance, and to do so in such a way as to “remedy” the violation of the defendant’s constitutional right.

Docket: 12-382
Marshall v. Rodgers
Issue(s): Whether Faretta v. California "clearly establish[es]," for purposes of habeas corpus review of state-court judgments under 28 U.S.C. § 2254(d), that a defendant retains a constitutional right to revoke his prior waiver of counsel at trial and require re-appointment of counsel to file a new-trial motion.

Walker overruled; 11^th Circuit holds that “the statute of limitations in AEDPA applies on a claim-by-claim basis in a multiple trigger date case.”

Zack v. Tucker, et al., 09-12717. Decided January 9, 2013.

The 11^th Circuit vacated its previous panel opinion and reheard the case en banc. Zack v. Tucker, 678 F.3d 1203 (11th Cir. 2012). At issue is “[w]hether 28 U.S.C. § 2244(d)(1) provides a single statute of limitations that applies to the application as a whole or whether the timeliness of claims must be evaluated on a claim-by-claim basis.”

After reviewing its “precedent in Walker v. Crosby, 341 F.3d 1240 (11th Cir. 2003), and the rule it established with regard to the limitations period set forth in 28 U.S.C. § 2244(d)(1),” the 11^th Circuit recedes from its Walker decision “to the extent it holds that § 2244(d)(1) provides a single statute of limitations that applies to the habeas corpus application as a whole and that individual claims within an application cannot be reviewed separately for timeliness.”

The 11^th Circuit affirmed “the district court’s judgment dismissing Zack’s non-Atkins claims as time-barred” and held “that the statute of limitations in AEDPA applies on a claim-by-claim basis in a multiple trigger date case.”

We overrule Walker to the extent that it holds that § 2244(d)(1) provides a single statute of limitations that applies to the application as a whole and that individual claims within an application cannot be reviewed separately for timeliness. We are “confident Congress did not want to produce” a result in which a timely claim “miraculously revive[s]” untimely claims. Fielder, 379 F.3d at 120. Accordingly, we hold that the statute of limitations in AEDPA applies on a claim-by-claim basis in a multiple trigger date case. We see no reason why a habeas petitioner who allows his judgment to become final should be permitted, by the happenstance of an intervening decision or the discovery of new evidence, to reopen claims that he could have raised earlier but did not.

Assistant Attorneys General Charmaine Millsaps and Carol Dittmar represented the state.

Opinion: 11Cir200912717ZACK.pdf

B.O.L.O. - - - B.O.L.O. - New Cases Review by Florida Supreme Court. Summary in The Florida Law Weekly, Volume 38, Number 2, January, 11, 2013.

ROCKMORE v. STATE, __ So.3d __, 37 Fla. L. Weekly D533c (Fla. 5DCA 2012). Supreme Court Case No. SC12-577 (Rockmore v. State). Order dated January 9, 2013. Oral argument to be set by separate order. Criminal law--Robbery with firearm--No error in denying motion for judgment of acquittal in which defendant contended that he "abandoned" stolen merchandise before he threatened a pursuing store employee with a firearm--Whether threatened violence was used "in the course of taking," as defined in robbery statute was proper issue for jury to determine--Jury instructions--No error in refusing to give proffered special instruction that defendant should be found not guilty if he abandoned stolen property before he threatened force, as instruction was an incorrect statement of law, confusing, and already covered in standard instruction--No abuse of discretion in giving modified special instruction in which word "voluntary" was added to qualify abandonment--Second modification to proffered instruction, although erroneous, was invited by submission of the erroneous special instruction and was harmless given inconsequential change to the proffered instruction and its redundancy with the standard instruction given.

“Effective July 1, 2010, section 938.06(1), was amended to provide that the $20 assessment for the Crime Stoppers Trust Fund was a mandatory cost rather than an additional surcharge on any fine imposed.”

Spear v. State, 1D12-1471. Opinion filed January 16, 2013.

At issue: “whether the $20 court cost imposed for crime stoppers programs in criminal cases pursuant to section 938.06(1), Florida Statutes (2010), is mandatory regardless of whether any fine is imposed.”

The 1^st DCA, reconsidering this issue en banc, affirmed Spear’s judgments and sentences and held “. . . the $20 cost must be imposed when a person is convicted of a criminal offense whether or not a fine is also imposed.”

. . . we recede from our Pruitt decisions with respect to section 938.06 and determine that the reasoning as set forth in Sanders is correct. Although both versions of the statute include the language “[i]n addition to any fine prescribed by law,” the only prerequisite to the imposition of the $20 cost following the 2010 amendment is that a person be convicted of any criminal offense. No longer is the cost considered “an additional surcharge . . . on such fine” as was the case prior to the amendment.

Assistant Attorney General Joshua Heller represented the state.

Opinion: 1D12-1471Spear.pdf

Trial judge erred denying motion to disqualify himself.

State v. Borrego, 3D12-2988. Opinion filed January 16, 2013.

“Every litigant, including the State in criminal cases, is entitled to
nothing less than the cold neutrality of an impartial judge.” It is the
duty of courts to scrupulously guard this right of the litigant and to
refrain from attempting to exercise jurisdiction in any matter where
his qualification to do so is seriously brought into question. The
exercise of any other policy tends to discredit and place the judiciary
in a compromising attitude which is bad for the administration of
justice.

Livingston v. State, 441 So. 2d 1083, 1086 (Fla. 1983) (quoting State ex. rel. Mickle v. Rowe, 131 So. 331, 332 (Fla. 1930)).

The 3^rd DCA granted the writ of prohibition. “Because we conclude the judge should have granted the motions to disqualify him, his subsequent rulings were without authority and are hereby vacated.” See Cobo v. Pepper, 779 So. 2d 599, 600 (Fla. 3d DCA 2001).

. . . despite the averments in these affidavits that Judge Hirsch
acknowledged having preconceived opinions on the subject of fingerprints, urged two separate prosecutors on different occasions to file motions to disqualify him in cases where the reliability of fingerprint evidence was raised prior to trial, and told these prosecutors that if they filed such a motion he would grant it, Judge Hirsch denied the motion to disqualify filed by Mr. Ko. This was error.

Assistant Attorney General Timothy Thomas represented the state.

Opinion: 3D12-2988Borrego.pdf