by Kent S. Scheidegger *
*Williams v. Taylor, No. 98-8384. 163 F. 3d 860. Oral argument
on October 4, 1999. Habeas corpus.
Slack v. McDaniel, No. 98-6322. Unpublished. Oral argument on October
4, 1999. Habeas corpus.
*Smith v. Robbins, No. 98-1037. 152 F. 3d 1062. Oral argument on
October 5, 1999. Appeals.
*Roe v. Ortega, No. 98-1441. 160 F. 3d 534. Appeals.
*Martinez v. California Court of Appeal, No. 98-7809. Unpublished.
United States v. Martinez-Salazar, No. 98-1255. 146 F. 3d 653.
*Portuondo v. Agard, No. 98-1170. 117 F. 3d 696. Prosecutor argument.
Carmell v. Texas, No. 98-7540. 963 S. W. 2d 833. Ex post facto.
Fiore v. White, No. 98-942. 149 F. 3d 221. Oral argument on October
New York v. Hill, No. 98-1299. 704 N. E. 2d 542. Speedy trial:
Interstate Agreement on Detainers.
*Illinois v. Wardlow, No. 98-1036. 701 N. E. 2d 484. Stop and frisk.
A fifty year war over federalism and the criminal law comes to
its climax the first Monday in October, as the first case of the
Supreme Court's term. The term also includes: a "trilogy"
of cases on appeal; cases of practical interest to trial practitioners
on speedy trial, jury challenges, and closing argument; some academically
interesting, if rarely occurring, issues on retroactivity and ex
post facto; and the inevitable Fourth Amendment case.
The crown jewel of the Gingrich Revolution in the criminal law
field was the enactment of habeas corpus reform in the Antiterrorism
and Effective Death Penalty Act of 1996 ("AEDPA"). The
most important element of that reform is at issue in Williams v.
The question of what to do when a prisoner seeks to relitigate,
on habeas corpus, a question already resolved against him on appeal
has had a long and uneven evolution. By 1950, the Supreme Court
had settled on a discretionary rule. The habeas court had the power
to reconsider the question, but it could also reject the claim on
the basis of the prior judgment, Darr v. Burford, 339 U. S. 200,
214-215 (1950), which was the ordinary course of proceeding. See
Ex parte Hawk, 321 U. S. 114, 118 (1944). Relitigation remained
generally precluded for federal defendants, but for state defendants
the Supreme Court did an abrupt and largely unexplained about-face
in Brown v. Allen, 344 U. S. 443 (1953). Habeas corpus became a
second round of appeals, with all federal constitutional claims
reconsidered de novo.
Efforts to abrogate this decision legislatively began immediately,
and they continued for 43 years until Congress enacted the AEDPA.
28 U. S. C. §2254(d) now provides that the writ "shall
not be granted with respect to any claim that was adjudicated on
the merits in State court proceedings unless the adjudication of
the claim(1) resulted in a decision that was contrary to,
or an unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States . . . ."
The main bone of contention involves the "mixed question"
cases, applying a settled legal standard to case-specific facts.
Common issues include the sufficiency of evidence for conviction,
see Jackson v. Virginia, 443 U. S. 307, 324 (1979), the materiality
of undisclosed, arguably exculpatory, evidence, see Brady v. Maryland,
373 U. S. 83, 87 (1963), and the likelihood that allegedly deficient
representation made a difference. See Strickland v. Washington,
466 U. S. 668, 694 (1984). (The use of novel legal theories to collaterally
attack convictions had already been restrained by case law. See
Teague v. Lane, 489 U. S. 288 (1989).) For a federal district judge
to effectively overturn a state supreme court based on nothing more
than disagreement over its application of a rule to the facts in
a debatable case has been rubbing a raw nerve in federal-state relations
The petitioner in Williams claims that the statute did not really
change the rule for "mixed questions," and that the federal
habeas court's review remains "plenary." He is supported
by amicus briefs from the ACLU, the National Association of Criminal
Defense Lawyers, and the American Bar Association. There is also
an amicus brief by Abner Mikva for five former federal judges to
argue that the statute is unconstitutional as interpreted by the
Fourth Circuit, despite the Court's denial of certiorari on that
The state's position is that in a case such as this one, an ineffective
assistance claim, the state court judgment stands if it is a reasonable
application of the standard set in Strickland. It is supported by
an amicus brief joined by 35 states and one by the Criminal Justice
Legal Foundation. Williams v. Taylor will surely be the topic of
much controversy as it is argued and decided.
The second case on the habeas process itself is Slack v. McDaniel.
The case concerns the question of whether a second habeas corpus
petition may be dismissed under the "successive petition"
rule, when the first petition was not decided on the merits, but
instead dismissed for failure to exhaust state remedies.
The Appeal Trilogy
The Court seems to have a penchant for taking three cases in a
single area and deciding them as a "trilogy." This year,
the theme is appeals.
Smith v. Robbins addresses the question of what appointed appellate
counsel should do when they examine the case and find no substantial
issues to brief, an issue addressed in Anders v. California, 386
U. S. 738 (1967). The question is whether, in addition to laying
out the history of the case, appellate counsel must identify "arguable"
issues, even though they consider them frivolous. The ethical dilemma
of such a requirement has been vigorously denounced by appellate
defense lawyers. See, e.g., Pengilly, Never Cry Anders: The Ethical
Dilemma of Counsel Appointed to Pursue a Frivolous Criminal Appeal,
9 Crim. Just. J. 45, 52 (1986).
Roe v. Ortega raises a similar issue regarding trial counsel. The
state statute requires trial counsel to file a notice of appeal
if there are arguably meritorious grounds or if the client requests
it. The Ninth Circuit held that is not good enough; counsel must
file a meritless appeal unless the client affirmatively waives it.
Martinez v. California Court of Appeal involves the question of
whether the constitutional right to be a fool, i.e., to represent
oneself, see Faretta v. California, 422 U. S. 806, 852 (1975) (Blackmun,
J., dissenting), should be extended from trial to appeal. This case
features one of those legendary, handwritten, in forma pauperis
Another trio of cases deals with issues at trial. New York v. Hill
grapples with the problems of the speedy trial requirement of the
Interstate Agreement on Detainers ("IAD"). Does defense
counsel waive that right by agreeing to a trial date beyond the
statutory limit? Or, to paraphrase Justice Cardozo, does the murderer
go free because the master calendar judge blunders? The Court's
last word on the IAD was that inadvertent violation of the speedy
trial right, with no objection from the defendant, was not a "fundamental
defect" warranting collateral review. See Reed v. Farley, 512
U. S. 339, 348-349 (1994) (plurality opinion). The argument that
the right can only be waived expressly and personally, and not implicitly
by counsel, faces an uphill battle.
In United States v. Martinez-Salazar, the Court ventures again
into the field of jury challenges, a fertile source of Supreme Court
cases for many years. See, e.g., Witherspoon v. Illinois, 391 U.
S. 510 (1968); Batson v. Kentucky, 476 U. S. 79 (1986); Ross v.
Oklahoma, 487 U. S. 81 (1988); Morgan v. Illinois, 507 U. S. 719
(1992). Trial counsel should pay close attention to this case to
determine what is needed to preserve a claim of erroneous denial
of a challenge for cause. A divided panel of the Ninth Circuit held
that challenging the juror peremptorily and exhausting the peremptories
both preserved the error for review and required automatic reversal.
The dissent would require an express objection and a request for
an extra peremptory challenge, to replace the "wasted"
Portuondo v. Agard addresses the limits of the prosecutor's argument.
Witnesses are generally excluded from trials, but the parties, and
especially criminal defendants, have a right to attend. When the
defendant testifies, he has a unique opportunity to tailor his testimony
to that of the other witnesses. Can the prosecutor point this out
to the jury? The Second Circuit held that such a comment burdens
defendant's rights to be present and to testify, in the same way
that a comment on defendant's silence burdens his right not to testify.
The latter kind of comment was condemned in Griffin v. California,
380 U. S. 609 (1965).
Two cases probe the constitutional limits on when changes in the
law may or must be applied to past events. Carmell v. Texas involves
a change in the Texas "outcry" statute, which forbids
a conviction of a sex crime on the uncorroborated testimony of the
victim unless she reported it within a certain time. After the offense
but before trial, Texas amended the statute to lengthen the time
period and raise the minimum age. That is, it was previously inapplicable
to victims under 14; now it is inapplicable to victims under 18.
The victim in this case was 14 to 15 at the times of the offenses.
The state court held that this was a procedural change, permitted
under the Ex Post Facto Clause.
For the definition of "ex post facto," the Court has
looked primarily to two cases: Calder v. Bull, 3 U. S. 386, 390
(1798) and Beazell v. Ohio, 269 U. S. 167, 169-170 (1925). See Collins
v Youngblood, 497 U. S. 37, 42 (1990). This case involves the one
category included in the Calder definition but omitted from Beazella
law that allows different or less evidence to convict. This category
would seem to be irrelevant to the principal purpose of the ex post
facto prohibitionfair warning to people at the time they act
as to whether the act is forbidden and the possible punishment.
The flip side of retroactivity is presented in Fiore v. White.
Fiore was convicted of violating an environmental law, and he claimed
unsuccessfully on appeal that this particular law did not apply
to his conduct. After his conviction was final, the Pennsylvania
Supreme Court granted review in his codefendant's case and sustained
the same argument, although noting the conduct did constitute another,
greater offense. Even so, the state courts denied relief to Fiore,
refusing to apply the new interpretation retroactively. The Third
Circuit denied relief on federal habeas, following the rule that
states may constitutionally make their own rules on the retroactivity
of state-law precedents. See Great N. R. Co. v. Sunburst Oil &
Refining Co., 287 U. S. 358, 364 (1932).
Stop and Frisk
No term would be complete without at least one case on the Fourth
Amendment. In Terry v. Ohio, 392 U. S. 1 (1968), the Supreme Court
distinguished a brief detention and protective "frisk"
for weapons from the more intrusive arrest and search. The detention
requires only an articulable basis for suspicion that criminal activity
is afoot, much less than the probable cause for searches or arrests.
Is the act of running away at the sight of a police officer, by
itself, a sufficient basis of suspicion to stop the person and find
out what is going on? Justice Scalia seemed to think so when he
wrote the majority opinion in California v. Hodari D., 499 U. S.
621, 623, n. 1 (1991), quoting Proverbs 28:1"The wicked
flee when no man pursueth." The state did not argue the point
in that case, though, so the Court did not decide it. Illinois v.
Wardlow now brings the question squarely before the Court.
The cases listed above were granted review last term, have been
briefed, and will be argued in the next few months. At the same
time, the Court will consider additional certiorari petitions. Those
granted in October through January will typically be briefed, argued,
and decided in the current term, i.e., by June 2000.
The most controversial of the pending petitions is Dickerson v.
United States, No. 99-5525. In that case, the Fourth Circuit held
that 18 U. S. C. §3501 abrogates the Miranda rule in federal
criminal prosecutions. This case was discussed in the Appellate
Corner column of the Spring issue of this newsletter. The Court
should decide whether to take Dickerson early in the term and, if
it takes it, hear argument in the winter, and decide it toward the
end of the term.
Overall, the term presents a variety of cases, from profound questions
of federalism to practical aspects of trial. We will review the
answers to these questions in the forthcoming issues of the newsletter.
* Kent S. Scheidegger is Legal Director of the Criminal Justice
Legal Foundation. E-mail comments and suggestions to email@example.com.