Dear Defender,

Since the Nov. 29 update, the Court has granted cert. in two more criminal cases, and has remanded four others in light of Apprendi. As before, additions are noted in blue, and counsel information, where known, is in red. (As you'll see, defender offices are well-represented; however, if I have inadvertently missed anyone, please let me know.)

Happy holidays,

Fran Pratt

Recent Decisions

Artuz v. Bennett, ___ S. Ct. ____, 2000 WL 1663653 (Nov. 7, 2000) (application for state post-conviction relief is "properly filed," thus triggering tolling provision in 28 U.S.C. § 2244(d)(2), as long as its delivery to and acceptance by appropriate court officer comply with applicable laws and rules governing filings, regardless of whether claims in application are subject to mandatory procedural bar) (9-0 decision).

Cleveland v. United States, ___ S. Ct. ____, 2000 WL 1663649 (Nov. 7, 2000) (unissued state license is not "property" within the meaning of mail fraud statute, 18 U.S.C. § 1341, such that a scheme to obtain a license by false representations is outside the reach of § 1341) (9-0 decision).

Indianapolis, Ind. v. Edmond, ___ S. Ct. ____, 2000 WL 1740936 (Nov. 28, 2000) (Fourth Amendment does not permit police to conduct suspicionless roadblocks designed primarily to serve general interest in crime control; distinguishing roadblocks aimed at protecting public safety, as well as checkpoints aimed at detecting illegal aliens) (6-3 decision).

Cases Awaiting Decision

Atwater v. Lago Vista, Tex., No. 99-1408, argued Dec. 4, 2000 (whether Fourth Amendment limits use of custodial arrests for fine-only traffic offenses) (case below: 195 F.3d 242 (5th Cir. 2000) (en banc)).

Bartnicki v. Vopper and United States v. Vopper, Nos. 99-1687, 99-1728, argued Dec. 5, 2000 (whether imposition of civil liability under 18 U.S.C. § 2511(1)(c) and (d) for using or disclosing contents of illegally intercepted communications, where defendant knows or has reason to know that interception was unlawful but is not alleged to have participated in or encouraged it, violates First Amendment) (case below: 200 F.3d 109 (3d Cir. 1999)).

Ferguson v. Charleston, S.C., No. 99-936, argued Oct. 4, 2000 (whether "special needs" exception to Fourth Amendment's warrant and probable cause requirements was properly applied to discretionary drug testing program targeting hospital patients that was created and implemented with police and prosecutors primarily for law enforcement purposes) (case below: 186 F.3d 469 (4th Cir. 1999)).

Glover v. United States, No. 99-8576, argued Nov. 27, 2000 (whether two-level increase in offense level, and corresponding increase in sentence of 6-21 months, stemming from counsel's error, is sufficient to constitute "prejudice" under Strickland v. Washington) (case below: unpublished (7th Cir. July 15, 1999)).

Illinois v. McArthur, No. 99_1132, argued Nov. 1, 2000 (whether conduct of police in securing defendant's residence while awaiting search warrant, and not allowing defendant into residence unless accompanied by officer, constituted unreasonable seizure under Fourth Amendment) (case below: 713 N.E.2d 93 (Ill. App. 1999)).

Lopez v. Davis, No. 99-7504, argued Oct. 30, 2000 (whether director of federal Bureau of Prisons has authority to categorically deny consideration for early release under 18 U.S.C. § 3621(e)(2) to inmate who was convicted of nonviolent offense and who has completed drug treatment program as required by early release statute) (case below: 186 F.3d 1092 (8th Cir. 1999)).

Rogers v. Tennessee, No. 99-6218, argued Nov. 1, 2000 (whether state court's retroactive abrogation of "year and a day" rule in murder cases violates Ex Post Facto Clause) (case below: 992 S.W.2d 393 (Tenn. 1999)).

Seling v. Young, No. 99_1185,argued Oct. 31, 2000 (whether otherwise valid civil commitment statute can be divested of civil nature and held to violate Double Jeopardy and Ex Post Facto Clauses because agency operating commitment facility fails to provide for treatment and other conditions of confinement mandated by statute at some time during individual's commitment) (case below: 192 F.3d 870 (9th Cir. 1999)).

Cases Awaiting Argument

Alabama v. Bozeman, No. 00-492, cert. granted Dec. 11, 2000 (whether technical violation of Interstate Agreement on Detainers Act , specifically, the transfer of federal custody to state custody for one day for purposes of arraignment and transfer back to federal custody before disposition of outstanding charges, requires dismissal of pending charges, even though no harm to prisoner is alleged or demonstrated) (case below: not yet published, No. 1971759, 2000 WL 429936 (Ala. Apr. 21, 2000)).

Buford v. United States, No. 99-9073, to be argued Jan. 8, 2001 (whether a de novo or a deferential standard of review should be used in determining whether defendant's prior convictions are "related" within meaning of federal sentencing guidelines) (case below: 201 F.3d 937 (7th Cir. 2000)). Counsel is Dean Strang, the defender in the new office in Milwaukee, WI. This case is that office's first.

Daniels v. United States, No. 99-9136, to be argued Jan. 8, 2001 (whether defendant may use federal habeas corpus to reopen federal sentence and challenge constitutionally infirm prior convictions that were used to enhance sentence under 18 U.S.C. § 924(e)) (case below: 195 F.3d 501 (9th Cir. 1999)). Counsel is Mike Tanaka, AFD, Los Angeles, CA.

Duncan v. Walker, No. 00-121, cert. granted Nov. 13, 2000 (whether prior federal habeas corpus petition qualifies as "application for state post-conviction or other collateral review" within meaning of 28 U.S.C. § 2244(d)(2), which provides for tolling of one-year statute of limitations during pendency of such application) (case below: 208 F.3d 357 (2d Cir. 2000)).

Kyllo v. United States, No. 99-8508, to be argued Feb. 20, 2001 (whether warrantless use of thermal imaging device to detect heat sources within home constitutes unreasonable search and seizure under Fourth Amendment) (case below: 190 F.3d 1041 (9th Cir. 1999)). Counsel is Ken Lerner, former AFD, Portland, OR.

Lackawanna County Dist. Att'y v. Coss, No. 99-1884, to be argued Feb. 20, 2001 (whether custody requirement of federal habeas corpus statute precludes, under all circumstances, challenge upon fully expired conviction that was used to enhance a current conviction under habeas attack and for which petitioner is presently in custody) (case below: 204 F.3d 453 (3d Cir. 2000) (en banc)). Counsel are Jim Wade, FPD, and Dan Siegel, AFD, Harrisburg, PA.

Reno v. Ma, No. 00-38, to be argued Feb. 21, 2001 (whether, under 8 U.S.C. § 1231(a)(6), Attorney General has statutory authority to indefinitely detain long-time resident alien of United States beyond 90 day removal period even if deportation order cannot be effectuated in reasonably foreseeable future) (case below: 208 F.3d 815 (9th Cir. 2000)) (consolidated with Zadvydas v. Underdown, infra). Counsel are Jay Stansell and Jennifer Wellman, AFDs, Seattle, WA.

Shafer v. South Carolina, No. 00-5250, to be argued Jan. 9, 2001 (whether petitioner's due process rights under Simmons v. South Carolina were violated by trial court's refusal to instruct sentencing jury that petitioner would be ineligible for parole if the jury were to vote for a life sentence and by state supreme court's holding that Simmons no longer applies to state's sentencing scheme) (case below: 531 S.E.2d 524 (S.C. 2000)).

Texas v. Cobb, No. 99-1702, to be argued Jan. 16, 2001 ((1) whether accused may make effective unilateral waiver of right to counsel when only previous "assertion" of right consisted of accepting appointment of counsel following indictment on different, but related, crime over a year earlier; (2) whether, when accused has been indicted for burglary, right to counsel attaches to questioning about factually-related murder in case in which eventual capital murder conviction is not based on previously charged burglary as predicate felony) (case below: unpublished (Tex. Crim. App. Mar. 15, 2000)).

Tyler v. Cain, No. 00-5961, cert. granted Dec. 11, 2000 (whether petition for writ of habeas corpus asserting claim of error under Cage v. Louisiana, 498 U.S. 39 (1990), relies on a "new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court," within meaning of 28 U.S.C. § 2244(b)(2)(A); whether new rule of constitutional law announced by this Court in Cage should be made retroactively applicable to petitioners seeking collateral review of their convictions) (case below: 218 F.3d 744 (5th Cir. June 1, 2000), aff'g 1998 WL 614183 (E.D. La. Sept. 10, 1998) (No. Civ. A. 97-1549)). Counsel is Herb Larson, former AFD in the New Orleans office and now the CJA panel rep. for the Eastern District of Louisiana..

Zadvydas v. Underdown, No. 99-7791, to be argued Feb. 21, 2001 (whether Constitution prohibits prolonged indefinite detention of an immigrant after entry of final order of deportation when deportation cannot be effectuated) (case below: 185 F.3d 279 (5th Cir. 1999)) (consolidated with Reno v. Ma, supra). Counsel is Bob Barnard, AFD, New Orleans, LA.

Apprendi GVRs

In the following cases, all involving drug offenses, the Supreme Court has granted the writ of certiorari, vacated the judgment and remanded the case for further consideration in light of Apprendi. They are listed by circuit, and in reverse chronological order within each circuit.

Knight v. United States, No. 00-5719, ___ S. Ct. _____, 2000 WL 1199233 (Nov. 13, 2000) (case below: 216 F.3d 1077 (3rd Cir. May 24, 2000) (unpublished, No. 99-3667)).

Turnbull v. United States, No. 00-345, ___ S. Ct. ____, 2000 WL 1279657 (Dec. 4, 2000) (case below: 213 F.3d 634 (4th Cir. May 2, 2000) (unpublished, text in Westlaw, No. 98-4532, 98-4583)).

Meais v. United States, No. 00-5942, ___ S. Ct. ____, 2000 WL 1280571 (Nov. 27, 2000) (case below: 215 F.3d 1322 (4th Cir. May 30, 2000) (unpublished, text in Westlaw, No. 99-4579)).

Twitty v. United States, No. 00-5760, ___ S. Ct. ____, 2000 WL 1210720 (Nov. 27, 2000) (case below: 215 F.3d 1323 (4th Cir. May 23, 2000) (unpublished, text in Westlaw, No. 99-4804)). Counsel is Langdon Long, AFD, Columbia, SC.

Blue v. United States and Gibson v. United States, 121 S. Ct. 31 (Oct. 2, 2000) (case below: 187 F.3d 631 (4th Cir. July 27,1999) (unpublished, No. 96-4369)).

Clinton v. United States, 121 S. Ct. 296 (Oct. 10, 2000) (case below: United States v. Reliford, 210 F.3d 285 (5th Cir. 2000)).

Burton v. United States, 121 S. Ct. 32 (Oct. 2, 2000) (case below: United States v. Crawford, 211 F.3d 125 (5th Cir. Mar. 8, 2000) (unpublished, No. 98-20294)).

Humphrey v. United States, No. 00-5644, ____ S. Ct. _____, 2000 WL 1199070 (Nov. 13, 2000) (case below: 210 F.3d 373, 2000 WL 353712 (6th Cir. Mar 28, 2000) (unpublished, No. 98-3440)).

Patterson v. United States, No. 00-5992, ___ S. Ct. ____, 2000 WL 1281476 (Dec. 4, 2000) (GVR'ing only as to some defendants) (case below: 215 F.3d 776 (7th Cir.(2000)).

Robinson v. United States, No. 00-287. ___ S. Ct. _____, 2000 WL 1210736 (Nov. 27, 2000) (case below: 215 F.3d 1331 (7th Cir. May 23, 2000) (unpublished, text in Westlaw, No. 99-4071)).

Hughes v. United States, No. 00-192, ___ S. Ct. ____, 2000 WL 1201887 (Nov. 6, 2000) (case below: 213 F.3d 323 (7th Cir. 2000)).

Whitt v. United States, No. 00-183, ___ S.  Ct. ____, 2000 WL 1201687 (Nov. 6, 2000) (case below: 211 F.3d 1022 (7th Cir. 2000)).

Jackson v. United States, No. 99-10055, ___ S. Ct. ____, 2000 WL 840430 (Oct. 30, 2000) (case below: 207 F.3d 910 (7th Cir. 2000)).

Smith v. United States, No. 00-5198, ___ S. Ct. ____, 2000 WL 1056566 (Oct. 16, 2000) (case below: 215 F.3d 1331 (7th Cir. Jun 5, 2000) (unpublished, No. 99-4253)).

Caldwell v. United States, No. 00-6152, ___ S. Ct. ____, 2000 WL 1337374 (Dec. 11, 2000) (case below: 221 F.3d 1344 (8th Cir. June 13, 2000) (unpublished, No. 98-2781, text at 2000 WL 760953)).

Jackson v. United States, No. 00-5738, ___ S. Ct. ____, 2000 WL 1200066 (Dec. 4, 2000) (case below: 213 F.3d 1269 (10th Cir. 2000)).

(Carless) Jones v. United States, 120 S. Ct. 2739 (June 29, 2000) (case below: 194 F.3d 1178 (10th Cir. 1999)).

Potts v. United States, No. 00-5930, ___ S. Ct. ____, 2000 WL 1280377 (Nov. 27, 2000) (case below: 211 F.3d 598 (11th Cir. Mar 24, 2000) (unpublished, text not on Westlaw, No. 99-4129)). Counsel is Brenda Bryn, AFD, Ft. Lauderdale, FL.

Curry v. United States, No. 99-10265, ___ S. Ct. ____, 2000 WL 876642 (Oct. 30, 2000) (case below: 211 F.3d 129 (11th Cir. Mar. 10, 2000) (unpublished, No. 98-9621)).

Hester v. United States, No. 99-10024, ___ S. Ct. ____, 2000 WL 797322 (Oct. 16, 2000) (case below: 199 F.3d 1287 (11th Cir. 2000)).

Brown v. United States, No. 99-9107, ___ S. Ct. ____, 2000 WL 463113 (Oct. 10, 2000) (case below: 207 F.3d 662 (11th Cir. Jan. 10, 2000) (unpublished, No. 99-2272)).

Wims v. United States, 121 S. Ct. 32 (Oct. 2, 2000) (case below: 207 F.3d 661 (11th Cir. Jan 4, 2000) (unpublished, No. 98-3684)). Counsel is Josephine Deyo, AFD, Tallahassee, FL.