SCOTUS to Consider Standing to Challenge Wiretapping

The S Ct granted cert in Clapper v. Amnesty International, No. 11-1025 (May 21, 2012). 

Question presented includes a little background:

Section 702 of the Foreign Intelligence Surveillance Act of 1978, 50 U.S.C. 1881a (Supp. II 2008) (Section 1881a) allows the Attorney General and the Director of National Intelligence to authorize jointly the targeting of "non-United States" persons "reasonably believed" to be outside the United States.  This targeting would be to acquire "foreign intelligence information," and would normally be with the Foreign Intelligence Surveillance Court's prior approval. 

The respondents in this case are "United States persons who may not be targeted for surveillance under Section 1881a."  They filed their action on the day Section 1881a was enacted, and have sought a declaration that Section 1881a is unconstitutional, and an injunction permanently enjoining any foreign-intelligence surveillance under Section 1881a.

The crux of the issue is whether the respondents lack Article III standing to seek prospective relief because they have proffered no evidence that the United States would imminently acquire any of their international communications using Section 1881a-authorized surveillance.  And they have not shown that an injunction prohibiting Section 1881a-authorized surveillance would likely redress the claimed injuries.

Second Circuit decision at: 638 F.3d 118.

If you like standing issues (and you know we get them once in a while!) and/or wiretapping and dragnet-surveillance issues, keep your eyes on this one!  Fourth Amendment issues undergird the whole thing. 

Lafler Playing Out: IAC

So here we go: we're starting to see ineffective-assistance cases fleshing out Lafler.

Titlow v. Burt, No. 10-2488 (6th Cir. May 22, 2012) (for publication).

Have a great Memorial Day weekend, everyone!

Chief Judge Batchelder, Judges Clay and Gilman.

Chief Judge Batchelder dissented. 

State prisoner appealed dist ct's denial of her habeas petition.  She was convicted of second-degree murder.  COA reversed.  Ineffective-assistance-of-counsel claim arising out of plea-bargaining process had merit.  Inmate's second attorney was ineffective b/c he failed to investigate case before recommending that the inmate withdraw her plea.  Under plea, inmate would have received a 7-to15-year sentence.  After being convicted by a jury, the inmate received a 20-to-40-year sentence.  COA conditionally granted the habeas petition and gave the state 90 days to reoffer the original plea or to release the inmate.

Plea:
* Inmate was represented by an attorney who negotiated a plea deal.  Charges reduced to manslaughter, 7-to-15-year sentence.  Defendant to submit to a poly and testify against co-defendant.  Defendant would not challenge the prosecutor's recommended sentencing range on appeal. 
* Defendant pleaded guilty.
* After plea, the defendant spoke with a sheriff's deputy at the local jail.  This fellow advised the defendant not to plead guilty if she believed she was innocent.  He referred the defendant to another attorney.  This attorney agreed to represent the defendant in exchange for jewelry and media rights. 
* Defendant withdrew her plea.  Based on defendant declining to testify against the co-defendant.

Post-Plea Proceedings:
* The new attorney did not obtain the file, inspect the state's discovery materials, or speak with the prior attorney for a month and a half after the withdrawal of the plea. 
* After obtaining the file, the attorney moved to withdraw.  Claimed lack of $$$ from client. 
* State court appointed a third attorney.
* Jury convicted the defendant and she got 20 to 40 years of custody.  Co-defendant was acquitted. 
* Mich Ct App affirmed sentence on direct appeal and rejected all constitutional challenges.  Mich S Ct denied leave to appeal.  Motion for relief from judgment denied.  Mich Ct App denied leave to appeal that decision. 

Habeas Review:
* The inmate sought fed habeas review.  Dist ct denied, but granted certificate of appealability.

COA Conclusions:
* While decision to plead guilty rests with client, attorney has duty to inform client of options.  Attorney must reasonably investigate case.  Defendants have the right to expect counsel to review their cases and explain the elements, evidence, and sentencing exposure.   
* As Lafler has told us, "the simple fact of a higher sentence after trial is sufficient to demonstrate prejudice" for an IAC claim. 
* Substantial disparity b/t plea offer and post-trial sentence provides evidence that a defendant would have accepted a plea deal. 
* COA recognizes that "defendants may have legitimate reasons for continuing to maintain their innocence during and even after plea negotiations." 
* No need for a defendant to support with objective evidence an assertion that they would have accepted a plea offer.
* No evidence that the second attorney explained the elements of the charges, explained the defendant's sentencing exposure, or discussed the evidence.  Attorney failed in his obligations. 
* Not sound professional judgment or strategic choice.
* Inmate can show the court would have accepted the plea and the sentence would have been less.  The court accepted the plea the first time around.  Sentence the inmate got was substantially higher than the one available under the plea. 

Remedy:
* Lafler kind of leaves this door open. . . .
* Problem here is the plea deal was based in part on the inmate's agreement to cooperate against the co-defendant.  Co-defendant was acquitted and then died, so that basis for the plea deal is now gone.
* State should reoffer the plea.  State trial court would then have discretion to vacate the trial conviction and accept the plea or leave the conviction undisturbed.  State court should recognize the plea deal as a "baseline" to consult in fashioning an appropriate remedy.
* But COA acknowledges there may be a problem if the state court just reimposes the last sentence.  But Lafler says the state court must at least consult the initital plea agreement in crafting a new sentence.  Ct's discretion is not unfettered.  If there's a problem (eg, new sentence is greater than origianl plea deal), the later remedy in fed ct is a question for another day. 

Chief Judge Batchelder's dissent:
* Mich Ct App's denial of IAC claim was reasonable. 
* It was not counsel's advice that motivated the defendant to withdraw her plea.  And even if counsel encouraged the withdrawal, such advice did not fall below an objective standard of reasonableness.
* Counsel represented the inmate for only three days before the plea withdrawal.  No time to review case file. 
* Lafler distinguishable b/c that petitioner "presented actual evidence that he received deficient advice." 
* Lafler does not require the trial ct to consult the original plea agreement.  Lafler "simply says that the 'baseline' of the original plea offer 'can be consulted in finding a remedy.'"
* Lafler does not require resentencing. 

Great Crime-of-Violence and 2L1.2 Case

Kudos to one of our panel attorneys.  We now have United States v. Rede-Mendez, No. 10-2509 (6th Cir. May 21, 2012) (for publication).

Panel of Judges Moore, Griffin, and White.  Judge Griffin dissented.

Illegal-reentry case.  Below GLs sentence of 36 months (GLs were 57 to 71 months).  D had gotten the 16-level bump for a prior crime of violence.  He had a New Mexico aggravated assault (deadly weapon).  COA found this prior was not categorically a crime of violence, and the Shepard docs did not reveal the details of the conviction.  Case remanded for resentencing. 

To Note:
* The application notes to 2L1.2 give aggravated assault as a crime of violence. 
* Categorical approach applies.  And the name of a prior offense does not govern.  Just b/c it's called aggravated assault does not mean it is!  Must fall w/i generic definition. 
* COA looks to Model Penal Code for guidance.
* Reiterates need to "feign agnosticism" if Shepard docs don't reveal nature of prior offense.  "The likelihood that a defendant's conviction was based on a particular version of the offense is not a factor in the crime of violence analysis."  What matters is what the gov can show. 
* A statement of probable cause is NOT a Shepard document.

New Mexico Aggravated Assault:
* Includes using insulting language to impugn honor, delicacy, or reputation.  Even if a prosecution under this subsection might be rare, or even unconstitutional, it's still available to prosecutors. . . .
* Does not require specific intent to injure or frighten.
* A deadly weapon alone does not necessarily make it a crime of violence.

J. Griffin's Dissent:
* The 10th and 5th Circuits have held that New Mexico agg assault w/deadly weapon has as an element the use of force.  So they have found it to be a crime of violence. 
* Suggests that "common and legal sense" dictate that New Mexico courts do not recognize agg assault with a deadly weapon arising from insulting language.

Busy Week!!!! CP Sentencing, Habeas Rape Shield

Lots from the Circuit this week.  It was my week to blog for the Sixth Cir. blog, so I'll just point you in that direction this week.  Especially b/c it's been quite busy.  Check out the good decision on a CP sentence: it was substantively unreasonable (kudos to a WD Mich panel attorney for that one!).

Gagne v. Booker decided by en banc Court.  Addresses rape-shield, habeas, confrontation, and Sixth Am issues.  (Thanks to another blogger for covering that big opinion!)

All at www.circuit6.blogspot.com!

Interesting Glimpse into MDOC Issues

Mosholder v. Barnhardt, No. 10-2586 (6th Cir. May 11, 2012) (for publication).

Panel of Judges Cole, Stranch, and Carr (N.D. Ohio).

Plaintiff-appellant appealed grant of summary judgment on her First Amendment retaliation claim.  The plaintiff had been a corrections officer for MDOC at the Lapeer Thumb Correctional Facility.  She was the institution's school officer, so she would patrol the school and discipline inmates as needed.

The facility held a rap musical competition for youthful offenders in 2008.  The plaintiff claimed she heard gang references and saw gang signs during the competition.  The defendant wardens claimed they saw nothing of the sort. 

The plaintiff sent a letter to several Michigan state representatives and senators, expressing concern over the way the rap competition was conducted.  She also cited safety concerns at the facility and listed incidents.    

The plaintiff was reassigned to a less favorable position in the facility.  She sued in state ct and the case was removed to federal ct.  The plaintiff brought a First Amendment retaliation claim.  The COA reversed the dist ct's grant of summary judgment for the defendant-appellees and remanded.

The case is interesting b/c it provides a little look into MDOC concerns, programs at MDOC facilities, and treatment of youthful offenders.  The events took place a few years ago, so things may have changed, but the descriptions provide a look at a state correctional facility. 

Click here for the case.

Crack Retro and Career Offenders

Check out United States v. Jackson, No. 10-3923 (6th Cir. May 8, 2012) (for publication), for news on career offenders and the retroactive crack amendments.

It's discussed on the Sixth Cir. blog at www.circuit6.blogspot.com.

Catching Up! Jurisdictional Issues. . . .

Whew!  Sorry for the absence.  Lots going on + Sixth Cir Conf in Lexington, Kentucky!

But I'll do some catching up today.

United States v. Detcher, No. 10-3776 (6th Cir. May 8, 2012) (not for publication). 

Panel of Judges Kethledge, Stranch, and Gwin (N.D. Ohio).

CP and sex-abuse-of-a-child case.  Defendant argued that the Ohio dist ct lacked subject-matter jurisdiction over the sex-abuse offense b/c the offense occurred on a U.S. Army base in Germany.  COA remanded case to dist ct. 

First, "the fact that [the defendant] did not make this jurisdictional argument below does not release [the COA] from [its] duty to determine the issue." 

Second, there's a circuit split over whether "the special maritime and territorial jurisdiction of the United States" includes only federal lands within the territory of the United States.  Does such jurisdiction extend extraterritorially?  "Special maritime and territorial jurisdiction" is defined in 18 USC 7. 

Third, the defendant argued that even if the statute reaches areas outside the U.S. it does not reach the base in Germany.  He based his argument on the fact that Germany has not ceded any jurisdiction to the United States civilian courts to try crimes there.  The defendant looked to the status-of-forces agreement between the U.S. and Germany.  He argued only trial in military court might be permitted. 

The COA remanded to the dist ct to consider the issue.