U. S. Supreme Court Preview Of The October 1999 Term

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 Unpublished.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 Unpublished. Appeals.

United States v. Martinez-Salazar, No. 98-1255. 146 F. 3d 653. Jury challenges.

*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 12. Retroactivity.

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.

Habeas Corpus

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. Taylor.

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 since 1953.

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 question.

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 certiorari petitions.

Trial Issues

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" one.

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 Beazell—a 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 prohibition—fair 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.

Pending Petitions.

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 cjlf@cjlf.org.


2001 The Federalist Society