The "Prior Conviction" Exception to the Apprendi Rule Takes a Very Large Step toward Its Impending Demise

Shepard v. United States, No. 03-9168 (U.S. March 7, 2005): In a much anticipated case finally decided today, the Supreme Court (by Justice Souter for a 5-justice majority) ruled that in determining whether a prior conviction qualified as a predicate felony for the Armed Career Criminal Act, 18 U.S.C. § 924(e), when the statute of conviction is sufficiently broad to include both qualifying and non-qualifying offenses, a sentencing court "is generally limited to examining the statutory definition [of the prior offense of conviction], charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented." Although the holding of the case is important in itself, it is the decision's uncertain ramification for the continuing viability of the "prior conviction" exception to the Apprendi rule that has generated the most interest.

In Shepard, the Government attempted to rely on police arrest reports (and the complaint applications they supported) to demonstrate that the defendant's conviction was in fact for a "generic burglary" (i.e., breaking & entering a building as opposed to a car or boat), which qualifies as an ACCA predicate, even though nothing else in the record established this. The Supreme Court rejected this attempt, holding as a matter of statutory interpretation and in light of its prior decision in Taylor v. United States, 495 U.S. 575 (1990), that a court cannot rely on such documents (described as "documents submitted to lower courts even prior to charges," Op. at 7) to determine whether a prior conviction qualified as an ACCA predicate. Instead, where the prior conviction resulted from a guilty plea, a court "is limited to [examining] the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judges and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information." Op. at 12.

As noted, the more interesting aspect of the case is what it says about the viability of the "prior conviction" exception to the Apprendi rule, established in Almendarez-Torres v. United States, 523 U.S. 224 (1998). Concerning this point, the majority comes very close to overruling Almendarez-Torres, but stops just short of inflicting the coup de grace. Thus, after rejecting the Government's position through statutory interpretation and a close analysis of Taylor, Justice Souter tantalizingly writes that "[d]evelopments in the law since Taylor . . . provide a further reason to adhere to the demanding requirement that any sentence under the ACCA rest on a showing that a prior conviction 'necessarily' involved . . . facts equating to generic burglary." Op. at 10. Those "developments", of course, refer to the Court's Sixth Amendment jurisprudence as evidenced in cases such as Jones v. United States, 526 U.S. 227 (1999), and Apprendi (2001), holding that, as a general matter, facts that "raise the limit of the possible federal sentence must be found by a jury." Op. at 10. Because a "sentencing judge considering the ACCA enhancement would (on the Government's view) make a disputed finding of fact about what the defendant and state judge must have understood as the factual basis of the prior plea, [] the dispute raises the concerns underlying Jones and Apprendi." Op. at 11. In such a situation, Justice Souter wrote, Almendarez-Torres does not help the Government: "While the disputed fact here can be described as a fact about a prior conviction, it is too far removed from the conclusive significance of a prior judicial record, and too much like the findings subject to Jones and Apprendi, to say that Almendarez-Torres clearly authorizes a judge to resolve the dispute." Id. Relying on "[t]he rule of reading statutes to avoid serious risks of unconstitutionality," the majority concludes that this rule "counsels us to limit the scope of judicial factfinding on the disputed generic character of a prior plea." Op. at 11-12.

After Shepard, therefore, the most that one can say is that a majority of the Supreme Court has a "serious constitutional doubt" about the continuing viability of Almendarez-Torres. Justice Thomas goes further in his concurrence, writing that "a majority of the Court now recognizes that Almendarez-Torres was wrongly decided." Concurrence at 2. Of course, this has been true since Apprendi in 2001, when Justice Thomas (who provided the 5th vote in Almendarez-Torres) first made his mea culpa in declaring that he erred in joining the majority in Almendarez-Torres; yet the Court continued to pay lip service to the prior conviction exception in subsequent cases (such as, most famously, Blakely in 2004). A footnote in Justice Souter's majority opinion enhances the anti-Almendarez-Torres flavor, see Op. at 12 n.5, but again does not settle the issue.

Indeed, even the dissent (by Justice O'Connor, for 2 other justices; the Chief did not participate) adds fuel to the "death of Almendarez-Torres" fire by "strongly suspect[ing] that the driving force behind today's decision is not Taylor itself, but rather [the] further developments in the law" represented by Apprendi. Dissent at 10.

It would appear, in sum, that the prior conviction exception to the Apprendi rule will not survive for long. Though some may wonder why the Supreme Court did not simply do so in Shepard, there is clearly a majority that believes that Almendarez-Torres was wrongly decided.

District Court Retains Inherent Authority to Interpret Ambiguities in Its Own Orders, Regardless of Rule 35 / 36 Constraints

United States v. Silvio Spallone, Docket No. 03-1791 (2d Cir. March 4, 2005) (Sack, Raggi, and Hall) (Op. by Raggi): In this case, the Second Circuit clarifies that a district court retains the power to interpret ambiguities in its own sentencing orders, even outside the temporal and other limits set for correction of sentences found in Rules 35 & 36 of the Federal Rules of Criminal Procedure.

Here, the defendant pled guilty to tax evasion and was originally sentenced to 30 months' imprisonment, 3 years' supervised release, and $2.45 million in restitution. Following a Rule 35(b) motion by the Government (in exchange for the defendant's cooperation while in prison), the district court entered an order stating that "the defendant [] be sentenced to time served." The defendant was promptly released.

After his release, the defendant claimed that neither the supervised release nor the restitution portions of his sentence were still in effect as a result of the "time served" order. Nearly a year and a half after the original order was entered, the district court entered another order clarifying that the earlier order merely shortened the term of imprisonment and did not abrogate any other aspect of the original sentence.

The Circuit affirmed this new order on appeal, finding that it correctly interpreted the earlier order in light of all the surrounding circumstances. And although the new order was not authorized by either Rule 35 or Rule 36, the Circuit held that a district court retained the inherent authority to interpret an ambiguous order at a later time.

The Circuit Weighs In -- Again -- on the Plain Error Question in Booker/Fanfan Cases

United States v. Williams, Dkt. No. 04-2882-cr (2d Cir. February 23, 2005)

In Williams the Circuit, with Judge Newman writing, has added further comment on its plain error approach in Booker/Fanfan cases, as set out in United States v. Crosby, noted here. The Court reiterated the two types of errors in Booker and Fanfan -- mandatorily enhancing a sentence based on facts not found by the jury and, as in Fanfan, "mandatorily imposing a Guidelines sentence even though it is based only on facts found by the jury." And it once again held that the proper response to such errors was to remand to the district court, not for resentencing, but to determine whether a materially different sentence would initially have been imposed under Booker and Fanfan, and if so, to conduct a resentencing.

The major portion of the opinion consists of the Court's response to different plain error approaches taken in other circuits and an explanation of why it adheres to the limited remand adopted in Crosby. Initially, however, the Court makes an interesting historical argument noting the origins of the plain error rule in two concerns, protecting the legal rights of the parties below on the one hand, and avoiding the costs of multiple jury trials on the other. The balance between these two concerns, the Court noted, was different in the sentencing context for two reasons. First, after a jury trial, the "first jury is no longer available to advise as to what it would have done in the absence of error," but in the sentencing context, the district judge is available and well-equipped to answer the question whether its error was prejudicial. And second, a resentencing, unlike a new trial, is a "brief event," with relatively small attendant costs.

In canvassing the approaches of other circuits, the Court disagreed with the Eleventh Circuit that the "consequence of uncertainty" about the existence of prejudice "must be that the defendant necessarily loses." Its disagreement was rooted in the distinction between the application of plain error at sentencing and at trial; the Court could "see no reason to risk leaving in place a sentence that might be materially lower or higher than the one that would have been imposed without error." On the other hand, the Court departed from the views of other circuits that a full resentencing would usually be required if error were found, because of additional risks and burdens that approach created. The disposition set out in Crosby, it concluded "avoids the risk that leniency or harshness resulting from legal error will remain uncorrected, yet it also avoids what might turn out to be the needless burdens and risks of automatic resentencing."

The Attorney Client Privilege Extends to Communications Between Government Officials and Their Government Lawyers

In re Grand Jury Investigation (United States v. John Doe), Dkt. No. 04-2287-cv (2d Cir. February 22, 2005)

Creating a circuit split, but in a case that may not be reviewable in the Supreme Court, the Circuit holds that the attorney-client privilege operates with respect to government officials and their government lawyers to the same extent that it applies in the private sphere. The opinion, written by Chief Judge Walker, and joined by Judges Leval and Jacobs, is a resounding reaffirmation of the "public interest" served by the privilege.

In the investigation of former Governor John G. Rowland of Connecticut, the government had subpoened the former chief legal counel to the Office of the Governor to testify to communications concerning the receipt of gifts by officials and the "meaning of related state ethics laws." The Office of the Governor (both before and after Governor Rowland's resignation) asserted the privilege, but the district court held that the privilege did not apply "because the interests served by the grand jury's fact-finding process clearly outweigh the interest served by the privilege," and that the "governmental" attorney-client privilege differed from the private privilege because the government lawyer's duty did not lie solely with the agency, but also with the public.

The Circuit rejected this reasoning in all respects. It showed that there had long been assumed to be a governmental privilege of some scope, and it squarely rejected the argument that in a criminal case the "public interest" in having all relevant evidence of crime outweighed that privilege. One could as easily conclude, the Court stated, "that the protections afforded by the privilege ultimately promote the public interest, even when they might impede the search for truth in a particular criminal investigation." Indeed, the Court thought the rationale for the privilege had "special force" in the governmental situation because of the "crucial" need for officials "to receive fully informed legal advice."

The Circuit further rejected arguments that the privilege did not function in the same manner in the public as in the private context or that there should be some kind of balancing test for determining the applicability of the privilege on a case-by-case basis.

The Court noted that its decision was in conflict with a decision of the Seventh Circuit and in "sharp tension" with decisions of the Eighth and District of Columbia Circuits. It is unlikely that this case will lead to the Supreme Court, however, since, following issuance of the Court's order of reversal in August, 2004, Governor Rowland pled guilty, rendering further substantive proceedings in the case moot, in all likelihood. The Court noted that issuing an opinion justifying its August order was not prevented by the mootness doctrine, but it seems likely that a further government appeal would be.

Circuit Finds Pre-Blakely Use of Mandatory Guidelines Harmeless Where Mandatory Minimum Exceeded Guidelines Range

United States v. Sharpley, No. 04-2934 (2d Cir. Feb. 16, 2005): In Sharpley, after quickly disposing of two merits-based challenges to the defendant's convictions for sexually exploiting a child for production of visual material (18 U.S.C. section 2251) and for being a felon in possession of a firearm (18 U.S.C. section 922(g)(1)), the Court rejected an appeal of a 180-month sentence, where the length of the sentence was driven entirely by a statutorily-imposed mandatory minimum, rather than the Sentencing Guidelines. Mr. Sharpley's applicable sentencing range would have been 108 to 135 months but for the 15-year mandatory minimum, which effectively turned the "range" into a "point". The Court held that this "is the rare case where we can determine without remand that the district court's use of the Guidelines as a mandatory regime was harmless error," because Sharply could not obtain any improvement in his sentence in resentencing. Indeed, the Court noted that the district court's use of a mandatory Guidelines scheme was "not necessarily harmless as to the government," which could have sought a sentence up the statutory maximum of 30 years. But since the government had not appealed or cross-appealed Sharpley's sentence (or, responded to the Panel's apparent invitation to request resentencing), there was no reason for the Court to send the case back.

Despite the relatively straightforward nature of the decision in Sharpley, the case has made some noise in the blogosphere by weighing in (albeit only in a footnote) on one of the many post-Booker debates that has been highlighted by Professor Berman. As Professor Berman has previously discussed on his blog http://sentencing.typepad.com/sentencing_law_and_policy/2005/01/are_the_fsg_sti.html there remains some uncertainty as to the continuing force of 18 U.S.C. section 3553(b)(2), a creation of the Protect Act which had provided for an even more rigid standard -- i.e., one which could never be met -- for granting downward departures for certain child crimes and sex offenses, and specifically required judges to follow the Guidelines in such cases. Unsurprisingly, the provision did nothing to restrict the availability of upward departures in such cases. In Booker, the Supreme Court never even mentioned section 3553(b)(2), let alone exised it, raising the possibility that it continues to remain in force. In Sharpley, the Second Circuit noted that there were "no unique features of the Guidelines sentences for child crimes and sexual offenses that would prevent them from violating the Sixth Amendment in the same manner as Guidelines setences for other crimes." As a result, the Panel opined that the Supreme Court's failure to exise section 3553(b)(2) "was simply an oversight."

This provoked a rather heated comment from criminal defense lawyer and frequent blog contributor, Peter Goldberger, who argues that "the Supreme Court did not "fail" to excise 3553(b)(2), or overlook it. The Supreme Court is a *court*, not a legislature or a law professor. Bound, like all federal courts, by Article III of the Constitution, it decides only "cases and [actual] controversies," not abstract disputes about issues. Section 3553(b)(2) was in no way implicated by Mr. Booker's or Mr. Fanfan's case. Hence, the Supreme Court did not address it."

While Mr. Goldberger does a good job providing a principled defense of the Supreme Court's non-mention of section 3553(b)(2), his argument gives the Court too much credit. It is next to impossible to believe that the Court knew it was leaving in place such an obvious logical discrepancy but chose to remain entirely silent on the issue. While Goldberger is correct in noting that the precise issue was not before the Court (since neither Booker nor Fanfan involved child crimes or sex offenses), the majority could have simply noted that section 3553(b)(2) was not implicated by the case and that it therefore did not need to be addressed. More likely, however, it was, as the Sharpley Panel opined, simply an oversight.

Get Yer Crosby Remands Here! Get Yer Crosby Remands Here ... !

Readers should rest assured that we continue to monitor the Second Circuit each day for new criminal and habeas (and sometimes immigration) decisions. There have been no new posts on this Blog simply because the Court has not issued any published decisions in these areas in the last week and a half.

On the Booker / Crosby front, the only news to report is that the U.S. Attorney's Offices for both the Southern and Eastern Districts of New York are complying with Crosby for cases pending on appeal and are consenting to motions for a remand, consistent with Crosby, in all cases on direct appeal in which the sole issue raised concerns Blakely / Booker. The only exception to this policy, apparently, are cases involving plea agreements with appellate waivers. The Government intends to argue that those waivers, even if entered into before Blakely, are enforceable against the defendant / appellant.

Given that there is already a circuit split on the post-Booker plain error question (the 11th Circuit, e.g., has specifically rejected Crosby), and given the possibility that DOJ may seek rehearing on Crosby (or even file cert. if rehearing is denied), it seems wise for counsel to seek such remands as soon as possible. After all, once a district judge, at the "threshold" remand proceeding to determine "whether to re-sentence the defendant", has announced that s/he would indeed have imposed a materially different sentence under the post-Booker regime, an appellate court would be hard pressed to say, even if Crosby is eventually undermined, that there was no plain error in that case. In short, get going while the going's good: Get your Crosby remands as soon as possible.

Finally, just a reminder to all -- please post comments whenever you wish via this Blog, and please e-mail us if you have any questions or comments.

Circuit Upholds Pre-Blakely Appeal Waiver in Unpublished Opinion

United States v. Fleischer, No. 04-3911 (2d Cir. Feb. 3, 2005) (UNPUBLISHED SUMMARY ORDER): In a little noticed unpublished summary order, a panel of the Circuit upheld an appeal waiver, contained in a plea agreement entered before the Supreme Court's Blakely decision, and dismissed an appeal in which the defendant challenged his Guidelines-imposed sentence. In resolving this complicated question, the panel simply pointed to the Court's earlier decision in United States v. Morgan, 386 F.3d 376 (2d Cir. 2004), as dispositive: Appellant's argument that "the waiver provision in his plea agreement is inoperative because it was entered before the Supreme Court clarified the Sixth Amendment's application" in Blakely and Booker "is clearly foreclosed by our recent decision in United States v. Morgan." (Summary Order at 3).

Morgan, of course, says no such thing. Rather, Morgan involved an appeal raising a typical Apprendi challenge (to a sentence imposed under 21 U.S.C. § 841(a)) , and the appeal waiver was contained in a plea agreement entered into two years after the decision in Apprendi. 386 F.3d at 381 n.3. Indeed, Morgan explicitly reserved the question of whether a similar appeal waiver would be enforceable had it been entered before Apprendi was decided:

"We do not, of course, foreclose the possibility that an otherwise valid waiver might be deemed unenforceable against an Apprendi claim if a defendant can establish that he was unaware of his Apprendi rights at the time he entered into his plea agreement. However, it is not necessary to reach or to address that contingency here. Morgan, who entered his plea two years after Apprendi was decided, does not assert that at the time of the plea negotiations he was ignorant either of the Apprendi decision or of the alleged Apprendi error he urges here." Id.

In Fleischer, in contrast, the appeal waiver was entered into before Blakely was decided. Thus, Morgan did not in any way "clearly foreclose" appellant's argument that the waiver was unenforceable.

Thank goodness this result was reached only in a summary order and thus has no precedential value. The close and complicated question of whether a pre-Blakely appeal waiver is enforceable deserves much fuller analysis and treatment. Moreover, this summary order is clearly inconsistent with at least the spirit, if not the letter, of the Circuit's decision in Crosby. As discussed in previous posts, Crosby remands essentially all cases in which the sentencing occurred before Blakely, even where no 6th Amendment objection was raised, and even where the facts underlying the Guidelines sentence were admitted by the defendant or found by a jury.

Second Circuit Issues Blanket Order Permitting Remand in All Cases in which the Mandate Was Withheld Pending Booker

Just moments ago, the Second Circuit issued a blanket order addressing all previously decided criminal cases in which the mandate had been withheld pending the Supreme Court's decision in Booker, pursuant to Chief Judge Walker's August 6, 2004, order. Please see the Circuit's website for this blanket order (www.ca2.uscourts.gov).

As expected in light of Crosby (see below), the Court is permitting all appellants in those cases (listed in an Appendix attached to the court's blanket order) to have their cases remanded back to the district court for a determination of whether a resentencing is warranted. Any appellant desiring such a remand must simply complete a very basic form, attached to the Court's order, and return it to the Court (either by FAX or by mail). If an appellant does not wish to have his/her case remanded, s/he need do nothing.

No precise deadline is given for when the required form must be returned to the Court. The order states only that it must be "promptly" submitted.

Appeal of a Magistrate Judge's Detention Order Must Be Made to the District Court, Not to the Appellate Court

United States v. Harrison, Docket No. 04-4725 (2d Cir. Feb. 3, 2005) (per curiam). Not much more to add -- the title to this post says it all. Quite a mystery as to why the defendant did not simply appeal the magistrate's detention order to the district court, rather than directly to the Second Circuit, given that the law is (and has long been) so clear on this issue ...

The Little Case that Could -- U.S. v. Fleming

Some additional comments regarding Fleming (No. 04-1817-cr) to supplement David's excellent post below on the "Booker Trilogy" issued by the 2d Circuit on February 2nd.

Though Crosby is clearly the Big Daddy of the bunch, Fleming must not be overlooked because it answers two critical questions left somewhat unanswered in Crosby -- (1) what does it mean that judges have to "consider" the Guidelines range in imposing sentence, post-Booker? and (2) what does "reasonableness" mean on appellate review? Fleming (also by Judge Newman, and argued two days after Booker was decided -- the same day as Crosby) is, essentially, the first appeal of a post-Booker sentencing. This is because it involved the appeal of a sentence imposed upon revocation of supervised release, and the sentencing phase of a revocation proceeding, even in the pre-Booker world, was basically the same as a sentencing phase in the post-Booker world (in light of Breyer's remedial opinion) -- i.e., each required/s the judge to look to advisory Guidelines and 3553(a) factors in determining an appropriate sentence. Additionally, the same basic standard of review applied/s -- reasonableness (well, review of revocation sentences used to be on the "plainly unreasonable" standard, but what's the real difference?). Fleming thus contains a blueprint of sorts for both the post-Booker sentencing proceeding, and the post-Booker sentencing appeal.

And the decision is excellent in answering both questions above. FIRST, regarding the Booker / 3553(a) requirement that the sentencing court "consider" the Guideline range, Fleming holds that it will be sufficient if the court is simply aware of the range. There is no requirement that the court must "weigh heavily" or treat as presumptive that range -- as Judge Cassell concluded in Wilson.

Fleming specifically rejected the argument that to "consider" means to evaluate with "a measure of sustained reflection." Rather, given the background assumption that district judges understand the law, "no specific verbal formulations should be prescribed to demonstrate the adequate discharge of the duty to 'consider' matters relevant to sentencing." Indeed, so "long as the judge is aware" of the applicable range, and nothing in the record indicates misunderstanding on this score, "we will accept that the requisite consideration has occurred."

SECOND, regarding the standard of review of post-Booker sentences, Fleming explains that "reasonableness in the context of review of sentences is a flexible concept," and then adopts a posture of deference to district courts. As it states, "The appellate function in this context should exhibit restraint, not micromanagement." And while "the brevity or length of a sentence can exceed the bounds of 'reasonableness,' we anticipate encountering such circumstances infrequently."

This is a clear signal that the Second Circuit will not be examining all sentences outside the advisory Guidelines range (i.e., non-Guidelines sentences, in Crosby's lingo) with a fine-tooth comb on appellate review. Whether this is good news or bad news depends of course on the particular sentence imposed by the district judge in your case. I would guess, though, that in this Circuit, most non-Guidelines sentences will be lower than the Guideline range, and thus that a deferential stand of review will be favorable for the defense in most cases.

A Booker Trilogy

United States v. Crosby, No. 03-1675 (February 2, 2005)
United States v. Fleming, No. 04-1817-cr (February 2, 2005)
United States v. Green, No. 04-6564-cr (February 2, 2005)

In one remarkable opinion in Crosby and its two sidekicks, Fleming and Green, the Circuit discusses, if not settles, many of the issues involved in carrying out the Booker remedy. Crosby in particular is a must-read, since no summary can do it justice. It makes a fine addition to Judge Newman's long line of distinguished sentencing opinions. It considers the implications of Booker broadly, as well as with reference to the case at hand, and in doing so covers a broad swath of sentencing law.

In considering the application of Booker to future cases, one noteworthy theme of the Crosby opinion is that the Guidelines have not become merely "a body of casual advice." A somewhat contrasting theme, however, is that to comply with the law, a court must merely "consider" the Guidelines. And beyond the duty to ascertain -- in most cases -- the effective guideline range and any applicable departures, the opinion does not say what consideration requires, and in fact, a hefty portion of it is devoted to noting what "consideration" does not require.

Two aspects of "consideration" that the Court does note are significant. First, the Court states that sentencing courts need not always reach a firm decision as to what the correct guideline range is if they consider the possible ranges and determine instead to impose what the Court calls a "non-guidelines" sentence. This would be appropriate, the Court indicates, where the factual issues are difficult or the Guidelines too incomprehensible. Second, the Court declines to be drawn into the brewing warfare (see Judge Cassell's latest Wilson effort) over how much "weight" to assign the Guideline range in a court's sentencing decision, beyond requiring that it be considered.

The appellate ramifications of Crosby are by far its most immediately significant, however. The Court discusses the new "review for reasonableness" as consisting of two parts: review for "length" and review for "legal error," much preferring to deal with the latter. Significant space is expended dealing with potential legal errors that would render a sentence "unreasonable," but the most significant is this: it was error for a judge, pre-Booker, to treat the Guidelines as mandatory in sentencing a defendant. While doubtless correct, there is considerable irony here, since the Circuit directed its district judges in Mincey to commit just this error.

The conclusion that it was error to treat the Guidelines as mandatory leads the Court to the question whether it was "plain error" in Crosby's or other cases. And the answer is -- the Court doesn't know, but it knows how to find out. There would be plain error, the Court concludes, if the defendant was prejudiced by mandatory application of the Guidelines, a difficult question in many cases. The Court's solution is to grant a remand in such cases, but not for resentencing. Rather the remand is for the district judge to consider whether to resentence. Thus, the Court creates a widely available remedy of somewhat limited scope that, nonetheless, permits district courts to remedy any prejudice to defendants (or the Government) that may have occurred by determining that a "materially different" sentence would have been imposed under Booker.

The Court deals with "reasonableness" review in both Crosby and Fleming, the latter a case reviewing a sentence for revocation of supervised release. Although the Court states that there is reasonableness review of sentences for "length," there is little indication that the Court envisions review that has any real teeth. Indeed, it is perhaps unfortunate that the Court used Fleming as the vehicle for discussing reasonableness since it involved a sentence for a supervised release violation with a maximum of two years and the Court has never (so far as I am aware) reversed such a sentence as "unreasonable" absent actual legal error. Fleming explicitly suggests that this "hands-off" attitude will continue, but one must wonder whether, in the context of much heavier sentences, the Court will decide that length is, after all, important.

Finally, Green, the poor stepchild of the group, reaches the by now unremarkable conclusion that Booker is not retroactive on collateral review (until the Supeme Court says it is, anyway).

There are numerous other aspects of Crosby that are significant as well; go read it.

UPDATE: It has been suggested that I clarify that Green dealt with a second and successive habeas petition and that, clearly, Booker cannot be retroactive in that context until the Supreme Court declares that it is.

Second Circuit Interprets Hyde Amendment for First Time

United States v. Schneider, No. 03-1764 (January 14, 2005)

Background

Jeffrey Schneider was an accountant at a company that funded residential loans, and was implicated in a fraudulent scheme on the part of some of the company's principals to skim funds from escrow accounts. There were several years of contententious pretrial proceedings, some of the highlights of which included: (1) a failed proffer session at which defense counsel balked at some of the terms of the agreement, which led the prosecutor to tell Schneider that his attorney was "making a very big mistake;" and, (2) a decision by different prosecutors more than a year later not to pursue criminal charges, even though an indictment had been filed.

Schneider went to trial and was acquitted. He then moved in the district court for attorney's fees under the Hyde Amendment, which has been codified as a statutory note to 18 U.S.C. § 3006A. In the district court Schneider made two arguments. First, he claimed that the prosecution against him was "vexatious, frivolous, and in bad faith," and also argued that the Hyde Amendment authorized the court to review in camera certain government-prepared memoranda relating to its decisionmaking processes. The district court held that Schneider had not established any entitlement to attorney's fees and that, although in some circumstances a district court could order the government to produce privileged documents for inspection, Schneider had not made a showing that he was likely to prevail, and hence no such order was appropriate.

The Circuit's Decision

The Court of Appeals first considered whether the prosecution was vexatious, etc., concluding that the mere fact that Schneider was acquitted could not lead to a successful Hyde Amendment claim. The court noted that government trial witnesses had directly implicated Schneider in the charged fraud, and rejected the notion that Hyde Amendment liability could be grounded on a claim that the government's witnesses were not credible. The Court also reviewed the eventful pretrial history of the case and determined that what the defendant viewed as bad faith was nothing more than "hard-fought bargaining" on the part of the government. The Court did fault the government's conduct in some respects, noting that a prosecutor had made two "probably inappropriate" statements directly to Schneider during an aborted proffer session. However, that conduct, whether done in good or bad faith, was "too insigificant" to be the basis for Hyde Amendment liability.

The second issue considered was whether the Hyde Amendment authorized the production of an internal government memorandum allegedly recommending that the prosecution be dropped. The Court did not decide this issue, although in dicta it indicated that it tended to agree with the view that there was nothing in the Hyde Amendment that authorized discovery. In the end, the Court merely agreed with the district court that Schneider had not raised even the likelihood of government liability, and that under those circumstances no disclosure was warranted.

District Court Erred in Considering "Ex Post Data" in Collateral Challenge to Deportation

In United States v. Scott, No. 04-937-cr (January 11, 2005), the Court considered several important questions relating to collateral challenges to the deportation underlying an illegal reentry prosecution.

Background

Kevin Eric Scott had previously appealed the district court's denial of his motion to dismiss the indictment, and the Court had remanded the case to the district court to consider the effect of United States v. Perez, 330 F.3d 97 (2d Cir. 2003), which was decided while Scott's appeal was pending. On remand, the Scott again challenged his deportation, asserting that his immigration attorney's failure to seek 212(c) relief amounted to a due process voilation. The district court rejected this argument, and again denied the motion to dismiss.

The Court's Ruling

In this second appeal, the Court again held that, as in Perez, ineffective assistance of counsel at a deportation hearing could be the basis for a collateral challenge to the deportation. Here, as in Perez, counsel's poor performance -- he failed to file a 212(c) application after the immigraton judge ordrered him to do so -- amounted to a fundamental procedural error.

The Court then concluded that Scott was prejudiced by his attorney's ineffectiveness. First, and most significantly, the Court concluded that the district court had erred in considering "ex post data" -- a conviction that occurred after the deportation hearing -- in concluding that Scott would probably not have obtained 212(c) relief. After reviewing the relevant immigration and criminal precedents, the Court held that section "1326(d)'s prejudice inquiry does not extend byond the fairness of the deportation order itself. ... [I]n assessing whether the defendant-alien had a reasonable probability of not being deported .. the district court should reconstruct events as they existed at the time of the disputed deportatoin proceeding, without consideing future occurrences."

The Court concluded that, in the absence of the ex post data, Scott had a reasonable likelihood of receiving 212(c) relief in light of his family circumstances, employment history, long residence, and young age at arrival, factors that would have outweighed Scott's four prior convictions.

The Court accordingly reversed the judgment of the district court and vacated Scott's conviction.

Court Reverses Habeas Denial Based Upon New Evidence that Gotti Threatened to Kill Co-Defendant's Counsel If He Abandoned Joint Defense

Frank Locascio v. United States of America, Docket No. 03-2485 (2d Cir. Jan. 12, 2005) (Walker, Winter, and Jacobs) (Op. by Winter)

Facts: In October 2000, Frank Locacio filed a Section 2255 petition, alleging that he was not afforded the effective assistance of counsel at his 1992 trial with co-defendant John Gotti. The petition was based on counsel's alleged failure to pursue certain lines of cross-examination in order to protect Gotti.

Two years later, while the petition was still pending, Locacio filed a motion to amend the petition based on new allegations contained in an affidavit from habeas counsel, who claimed that Locacio's trial counsel, Anthony Carnivale, had revealed that Gotti had threatened to kill him if he "individualized the interest of Locacio at Gotti's expense." As a result of the threat, the affidavit alleged that Carnivale was, among other things, (1) prevented from (1) cross-examining the Government's main snitch, Salvatore Gravano, concerning Locacio's lack of involvement in the murder of Louis DiBono; (2) threatened to be "taken care of" by Gotti for asking questions specific to Locacio; (3) forced by Gotti to cross-examine witnesses about facts and charges that related only to Gotti; and (4) forced by Gotti to concentrate the second part of his summation on the case against Gotti, rather than the case against Locacio. The affidavit further claimed that Gotti threatened to harm Carnivale if he ever met alone with Locacio without Gotti being present.

Defense counsel contended in the motion to amend the petition that these hearsay allegations constituted "new evidence" because Carnivale had never revealed this information to anyone out of fear for his safety. Carnivale only came forward after John Gotti died, which reduced the risk to his safety. Although Carnivale allegedly refused to submit a declaration of his own because of his continuing fear of reprisals, he allegedly told the affiant that he would testify in accordance with the affidavit if he were subpoenaed to testify at a hearing.

The district court denied the motion to amend the petition as time-barred and, in the alternative, found the underlying ineffectiveness claim to be without merit. With respect to its finding that the petition was time-barred, the district court found that the "new evidence" was not new, that Gotti's insistence on controlling the attorneys appearing for his co-defendants was well known to Locacio (indeed, it had been captured on tape) long before trial began.

Held: The Second Circuit reversed and remanded, ordering an evidentiary hearing to examine "both the alleged conflict created by the death threat and any resultant lapse in representation reflected by the alleged change in Carnivale's conduct of Locacio's defense." The Court first addressed the district court's conclusion that Locacio's ineffectiveness claim based on the new affidavit was time-barred. Noting that it was a "close call," the Court nonetheless concluded that while it was well known that Gotti was insistent on controlling attorneys involved in representing members of his organinzed crime family, the claim here went beyond Gotti's general practice. The new allegation was that Gotti, without Locacio's knowledge, interceded directly with his trial counsel (who, unlike prior counsel, was not on Gotti's payroll), and gained control of trial counsel by threatening to kill him and preventing him from meeting alone with Carnivale. The Court further noted that the facts as alleged could not have been discovered through due dilligence, because Carnivale purportedly only disclosed the threat after Gotti died in 2002.

With respect to the merits, the Panel concluded -- not surprisingly -- that a death threat from a co-defendant ordering a lawyer to sacrifice a client's interest (assuming it happened) constitutes an actual conflict of interest. Thus, so long as the defendant can show that the conflict adversely affected his counsel's performance, prejudice would be presumed. United States v. Schwarz, 283 F.3d 76, 90-91 (2d Cir. 2002). The Court further concluded that a hearing was required to determine (1) whether, in fact, the conflict resulting from the death threat existed and (2) whether such conflict caused counsel to forgo alternative, potentially viable stratagies.

The Court expressed concern that the allegations regarding Gotti's alleged death threat consisted entirely of hearsay statements in habeas counsel's affidavit, creating a verification problem that was exacerbated by the fact that the new allegations were made many years after the alleged events. The Court indicated that the case was a close one, and that ordinarily a hearing would not be warranted in such circumstances. The Court concluded: "However, the allegations here, if credited, involve an attempt to subvert the adversary process in a fundamental and criminal matter, and we are assured by an officer of the court that trial counsel has made the statements claimed and will provide testimonial evidence in support. We believe, albeit by a narrow margin, that an evidentiary hearing would best clarify whether the subversion was attempted and succeeded."

Circuit Vacates Grant of Habeas Based on Prosecution's Use of Incriminating Statement Obtained during Un-Mirandized Pedigree Questioning of Defendant

Jose Rosa v. Frank McCray, Docket No. 04-2188 (2d Cir. Jan. 27, 2005) (Miner, Cabranes, and Straub) (Op. by Miner) (Dissent Op. by Straub)

Facts: On September 5, 1997, the victim ("V") was robbed at gunpoint by two men. V subsequently went to the police and described one of the robbers -- the one carrying the gun --as having "brown hair, with the ends slightly lighter."

The following day, V saw petitioner Rosa standing on the sidewalk. Though Rosa's hair appeared to be blonde, V identified him as the man who robbed her at gunpoint. V called the police, who promptly arrested Rosa.

At the police station, the same detective who had interviewed V the previous day asked Rosa a series pedigree questions while completing the on-line booking form. These questions were not preceded by Miranda warnings. "As to Rosa's hair color, [the detective] -- noticing that Rosa's hair was bright blonde, including the roots -- asked Rosa: 'What is your real hair color?'" Unfortunately, Rosa responded: "Brown. I colored my hair yesterday." (emphasis added).

During a hearing to determine whether the statement could be admitted, the detective admitted that he had spoken with the V the day before Rosa's arrest, and that she had described the gun-toting robber as having brown hair. However, the detective denied that he had intended to elicit incriminating information by asking Rosa the question regarding his "real hair color," claiming instead that he simply wanted "to ascertain the correct color of arrestee's hair" to complete the on-line booking form.

The trial judge allowed the statement to be introduced at trial, and the prosecutor emphasized it to the jury as evidence of Rosa's consciousness of guilt. Apart from this statement, the only other evidence offered by the state was the V's testimony pointing to Rosa as the robber. No physical evidence was introduced. The jury convicted Rosa.

After exhausting his state remedies, Rosa filed a § 2254 petition in the S.D.N.Y. Judge Motley granted the writ, finding that the detective should have known that his inquiry regarding the natural color of Rosa's hair was reasonably likely to evoke an incriminating response from Rosa, and therefore that Miranda warnings should've been given beforehand. Judge Motley also found that the erroneous admission of Rosa's statement was not harmless.

Held: The Second Circuit reversed. The Court began by noting the seeming tension between the rule of Miranda, which requires the now-familiar warnings whenver the police engage in "interrogation" -- i.e., conduct "that th[ey] should know are reasonably likely to elicit an incriminating reponse from the subject" -- and the rule permitting pedigree questioning following arrest without a prior Miranda warning. Resolving this potential tension, the Court ruled that "recognizing a booking exception to Miranda does not mean . . . that any question asked during the booking process falls within that exception." Rather, the Miranda rule applies even to pedigree questions: "The police may not ask questions, even during booking, that are designed to elicit incriminating questions." And to determine whether the police violated Miranda during pedigree questioning requires an "objective inquiry: Under the circumstances, should the police have known that asking the pedigree questions would elicit incriminating information?" The subjective intent of the detective or officer, though relevant to the inquiry, is not conclusive.

Applying this rule, Judge Miner found that (1) the incriminating information provided by Rosa in his response to the detective's question concerned when he dyed his hair, not his true hair color; and (2) the detective could not reasonably have expected that Rosa would volunteer this bit of information when he simply asked, "What is your real hair color?" Although the detective reasonably should have expected Rosa to provide an answer concerning his real hair color, Judge Miner explained, "[t]he fact that Rosa's hair was dyed a different color was not necessarily incriminating." Rather, the incriminating information -- volunteered by Rosa -- "was the fact that he had dyed it recently -- indeed, on the day of the robbery." (emphasis in original). And because "Rosa offered the critical piece of timing-related information voluntarily and outside the scope of the question" posed by the detective, who "could not reasonably have expected Rosa to offer [this] additional inculpatory information," the statement was admissible despite the lack of Miranda warnings.

Judge Straub dissented, disagreeing with Judge Miner on the critical issue of whether the detective reasonably should have known that his question would elicit incriminating information. Specifically, Judge Straub found that "any answer resposive to the question 'what is your real hair color?' would have constituted an 'incriminating response'." The only 2 answers Rosa could have given would both have been incriminating: (1) he could have answered truthfully that his real hair color was brown, which would've been incriminating because the V had described the robber as having brown hair; or (2) he could've lied and said that his hair was really blonde, "and the state could have used the answer against him at trial." As Judge Straub concluded, Miranda warnings were required because the detective "should have expected that his question about real hair color was likely to elicit an incriminating response because he knew -- or should have known -- that hair color was a central issue in the case."

Commentary: While I agree with Judge Straub that the majority's perception of what portion of Rosa's statement was "incriminating" is too narrow, the holding of the case is ultimately a good one for the defense. Rosa confirms that there is no true "pedigree exception" to the Miranda rule. Rather, the question is always the same: Did the police engage in questioning or conduct that, objectively viewed, would elicit incriminating information? If so, then Miranda warnings are required, even if the questioning took place within the context of booking or in the form of pedigree questioning.

Bank Larceny Not a "Qualifying Federal Offense" Under the Old DNA Act

United States v. Peterson, No. 03-1454 (2d Cir. Jan. 10, 2005):

Summary:

Government bloodsuckers may not force a probationary defendant to submit a DNA sample under the old DNA Act where his original conviction was for bank larceny. At the time Peterson was sentenced, the DNA Act required that all persons convicted of a "qualifying federal offense" were to submit a DNA sample while on supervised release, parole or probation (the Act was subsequently amended on October 30, 2004 making "any felony" a qualifying offense). The district judge dismissed the government's petition to summon Peterson to a probation violation hearing, finding that bank larceny was not a qualifying federal offense. The appeal raised two issues: (1) whether the government was authorized to appeal a district court's ruling dismissing a petition for a probation violation hearing; and (2) was bank larceny a qualifying federal offense? The answers were (1) yes and (2) no.

The Opinion:

The first question was resolved by an examination of the various authorities for government appeals. After finding that neither 18 U.S.C. Section 3742(b)(permitting government appeals of sentencing decisions in criminal cases) nor section 3731 (permitting appeals of specified decisions in criminal cases) authorized the government's appeal, the Court turned to 28 U.S.C. 1291 which permits appeals "from all final decisions of the district courts."

As a general rule section 1291 does not authorize government appeals in criminal cases. After determining that this case was in fact a criminal case, however, the Court found that an appeal was authorized under the "collateral order" doctrine of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949) which states that appeals are allowed "from a small number of criminal orders analagous to civil orders" which are "sufficient[ly] independent from the main course of prosecution to warrant treatment as plenary orders." The Court found that the dismissal of a probation violation was such an order "collateral to the main course of prosecution" and was therefore appealable.

The Court then sided with Peterson on the merits of his claim that bank larceny (18 U.S.C. 2113(b)) was not a qualifying offense. At the time, the DNA Act stated that a qualiftying offense included "an offense involving robbery or burglary (as described in chapter 103 of such title, sections 2111 through 2114, 2116, and 2118 through 2119)". The Court held that a plain reading of the statute did not include bank larceny which is distinct from robbery or burglary.

Creating Perverse Incentives for Lackluster Advocacy in the New York Court of Appeals? The Second Circuit's Exhaustion Jurisprudence, Cont'd.

(By guest blogger Darrell Fields, Associate Counsel, Appeals Bureau of the Federal Defender Division):

In Galdamez v. Keane, No. 03-2595, 2005 WL 15136 (2d Cir. Jan. 4, 2005) (Op. by Sotomayor), the Second Circuit held that a New York prisoner seeking habeas corpus relief (28 U.S.C. § 2254) had exhausted all of the claims he had raised in his Appellate Division briefs simply by asking the New York Court of Appeals for leave to appeal and then sending his Appellate Division briefs to that Court. His lawyer accomplished this by sending two cryptic letters to New York’s highest court. The lawyer’s first letter noted that he was enclosing a copy of the Appellate Division decision affirming Galdamez’s conviction and stated that "appellant hereby requests leave to appeal to this Court." The second letter merely stated that he was enclosing "the briefs submitted to the Appellate Division together with the decision affirming the conviction."

Pursuant to its usual practice, the Court of Appeals assigned Galdamez’s application to a particular judge and sent Galdamez’s lawyer a letter identifying the judge (who would decide whether to grant leave to appeal) and telling the lawyer that he had three weeks to write the judge about the case. The Court specified that in his letter to the judge, the lawyer should give particular attention "to identifying reviewability and preservation issues."

The lawyer did not submit anything to the judge. Consequently, he did nothing to assist the Court of Appeals judge in assessing whether an issue worthy of leave was presented by the case, and only the barest minimum in advocating for leave to appeal on behalf of his client. The New York Court of Appeals issued a certificate denying Galdamez leave to appeal. On Galdamez’s subsequent § 2254 petition, the Second Circuit concluded his lawyer had exhausted all of the claims set forth in the Appellate Division briefs.

The Circuit discussed its line of exhaustion cases involving New York prisoners whose lawyers -- unlike Galdamez’s -- actually took the trouble of preparing and submitting a letter to the individual judge assigned to review the leave application to argue why certain claims particularly merited the court’s review. In many of those cases, however, the Circuit construed the lawyers’ additional submissions to the individual judge as abandoning claims presented in the Appellate Division briefs. Under Circuit law, if a letter is written to the individual judge, only those claims raised in that letter are deemed exhausted, even though the Appellate Division briefs had also been submitted to the court. The assumption is that a New York Court of Appeals judge -- on receiving the lawyer’s additional submission -- would not thereafter bother to review the Appellate Division briefs. Under the Circuit’s view, the lawyer must incorporate by reference those claims in the Appellate Division briefs that were not specifically discussed in the letter to the individual judge. But the Circuit has not construed attorneys’ efforts at incorporating by reference broadly. Compare Morgan v. Bennett, 204 F.3d 360, 371 (2d Cir. 2000) (incorporation by reference sufficient) with Jordan v. LeFevre, 206 F.3d 196, 198 (2d Cir. 2000) (incorporation by reference not sufficient). Thus, under the Circuit’s jurisprudence, the leave application has become a trap for the lawyer who does more than just the bare minimum of presenting to the New York Court of Appeals the lower court decision and the briefs and asking for leave to appeal.

A footnote in the Circuit’s opinion, however, provides hope that the Circuit is beginning to appreciate the potential unreality of its jurisprudence in this area, a jurisprudence in which the more conscientious lawyer who makes the extra effort of advocating for leave to appeal to the individual judge can be less effective -- for the purpose habeas corpus law -- than a lawyer who does not bother to make any arguments whatsoever to the judge. The footnote notes that the Circuit’s jurisprudence rests on "surmises" about the behavior of Court of Appeals judges in reviewing leave applications. The Circuit also appeared to recognize that, at some level, its exhaustion jurisprudence has negative implications about how conscientiously New York Court of Appeals judges review leave applications: "As we strive for comity, however, we should be vigilant against overreaching, lest we imply a lack of conscientiousness on the part of the highly competent Court of Appeals." The Circuit noted that, "[i]n the proper circumstances, we would consider certifying this important question to the Court of Appeals itself." It declined to do so here, however, because the exhaustion question was not determinative.

A Foley Square "Time Warp"? A Post-Booker Guidelines Decision.

United States v. Sash, No. 04-0499 (2d Cir. Jan. 26, 2005) (Walker, Miner, and Cabranes) (Op. by Miner).

In this opinion, issued two weeks after the Supreme Court's decision in Booker (see entry below), the Second Circuit engages in a detailed analysis of Section 2B1.1(b)(9)(C)(ii) of the Guidelines, which calls for a 2-level enhancement when the offense "involved . . . the possession of 5 or more means of identification that unlawfully were produced from, or obtained by the use of, another means of identification." The Court rejected the defendant's argument that his conduct -- replicating police badges for police officers -- did not trigger the enhancement because it did not involve true identify theft, holding that the plain language of the Guideline controlled.

What's interesting about the opinion is not what it discusses, but what it doesn't discuss -- namely, Booker (or even Blakely). The original sentencing occurred in January 2004, but surely the defense attorney made a Blakely-based argument at some point during the appellate process. In any event, the January 26, 2005, opinion is entirely silent as to Blakely and Booker -- it doesn't even include a boilerplate referencing Chief Judge Walker's August 6, 2004, order regarding Blakely.

In any event, this opinion demonstrates one potentially great benefit of Booker: Hopefully, in the post-Booker era, none of us will have to sift through such mind-numbing, and entirely pointless, Guidelines minutia again. Of course, the correct Guideline range must first be calculated, even under Booker. But it's very hard to imagine that either advocates or courts will spend so much energy on -- or have the patience for -- parsing ambiguous Guidelines language when, ultimately, the range is just advisory anyway.

Dismissal of § 2254 Petitioner's First Habeas Petition by Reason of Tardiness Renders Future Petitions "Second or Successive" under § 2244(b)

Murray v. Greiner and Arce v. Fischer, Nos. 01-3833, 02-3574 (2d Cir. Jan. 5, 2005) (Leval & Cabranes, and Garaufis, D.J.) (Op. by Leval) :

This decision simply extends Villanueva v. United States, 346 F.3d 55 (2d Cir. 2003), holding that dismissal of a § 2255 petition on grounds of untimliness under § 2244(d) (establishing 1-year period to file such a petition) renders subsequent petitions "second or successive" within the meaning of § 2244(b) (and thus subject to its nearly impossible to satisfy gatekeeping requirements), to § 2254 petitions filed by state prisoners. The reasoning is that (1) the dismissal of a habeas petition will render subsequent petitions "second or successive" if the petition was "adjudicated on the merits"; (2) dismissal of a prior petition on grounds that presented a "permanent and incurable" bar to federal review qualifies as an adjudication on the merits; and (3) dismissal of a prior petition as tardy under the statute of limitations set forth in § 2244(d) presents a "permanent and incurable bar" to review the claim, and thus quaifies as an adjudication on the merits rendering a subsequent petition "second or successive."

Second Circuit Rejects Connecticut's Effort to Vacate Stay of Execution

Michael B. Ross, by next friend Gerard A. Smyth, v. Theresa Lantz, No. 05-8900 (2d Cir. Jan. 25, 2005) (Sack, Katzmann, and Hall) (per curiam)

FACTS: Michael Ross, convicted of murder in Connecticut, was scheduled to be executed on Wednesday, January 26, 2005, at 2 a.m. Ross (a so-called death penalty "volunteer") has declined to challenge his death sentence, but lawyers from the state public defender's office filed a habeas petition pursuant to 28 U.S.C. § 2254 on his behalf as "next friend." The public defender's office contends that Ross is not mentally competent to surrender his post-conviction rights. It presented testimony to Chief Judge Chatigny (of the District of Connecticut) from a psychiatrist indicating that Ross may not have been competent when he decided to forgo further challenges to his conviction and sentence due to years of seclusion on death row.
Yesterday, January 24th, Chief Judge Chatigny granted a stay of execution in order to hear more evidence concerning Ross's competency. Connecticut immediately asked the Second Circuit to vacate that stay. The Circuit heard oral argument at 2 p.m. today, January 25th, and issued an opinion within 3 hours.

HELD: The Court dismissed Connecticut's appeal and refused to vacate the stay, remanding the case back to Judge Chatigny for further proceedings to determine whether the state public defender qualified as Ross's "next friend" (and thus had standing to file the 2254 petition). The Circuit concluded that it did not have an adequate basis to review the standing question based on the record before it.

The determination of whether the state public defender's office qualified as "next friend", in turn, hinges primarily on whether "Ross is in fact not competent to forgo his right to bring habeas corpus proceedings." Slip Op. at 3; see Whitmore v. Arkansas, 495 U.S. 149, 163-64 (1990) ("next friend" must show, inter alia, that "the real party in interest cannot appear on his own behalf to prosecute the action" because of "inaccessibility, mental incompetence, or other disability"). Thus, the real effect of the Court's decision is the affirmation of Judge Chatigny's stay of execution pending a final determination of mental competency. As the Court concluded, "such proceedings on Ross's competence are appropriate as part of the district court's effort properly to decide the issues of standing and jurisdiction." Slip op. at 3.

In sum, because the standing question and the merits question both depend on Ross's competence, the Second Circuit's decision to remand for further factfinding on the standing question has the ultimate effect of upholding Judge Chatigny's decision to stay execution pending a final determination on Ross's competence. The Court "urge[d]" Judge Chatigny to "conduct such proceedings as expeditiously as reasonably practicable." Slip op. at 4.

UPDATE 1: On Thursday, January 27th, the Supreme Court, w/out comment but by a 5-4 vote, granted Connecticut's request to vacate the stay.

A new execution date has been set -- 2:01 a.m. on Saturday, January 29th (i.e., late this evening). However, Judge Chatigny apparently had also entered a 10-day TRO, which would prevent the execution. Thus, the case is now back before the Second Circuit, which will hear argument today (Friday, January 28th) on whether to dissolve the TRO.

UPDATE 2: Today, Friday, January 28th, the 2nd Circuit heard oral argument on whether the TRO issued by Judge Chatigny in the case brought by Ross's father should be dissolved. Shortly after the argument, the Court issued a decision vacating that TRO. The sole apparent basis for the decision was the fact that the Supreme Court had vacated the district court's stay of execution on Thursday, and there was no reason to believe that it wouldn't do the same regarding the TRO. (Of course, since the Superme Court gave no explanation for why it vacated the stay, this is just speculation).

In any event, the Circuit stayed its decision / order dissolving the TRO "until Sunday, January 30, 2005, at 12:01 A.M., in order to permit Plaintiff-Appellee Ross to seek such further review as he may deem warranted." Thus, unless Connecticut asks the Supreme Court to vacate this stay, the current execution date (2:01 a.m. on Saturday, January 29th) will have to be moved back. However, because Monday, January 31st is the final date on which the state can execute Ross on the current death warrant, only a short delay is likely -- unless of course the Supreme Court upholds the TRO.