Thursday, April 21, 2016

Supreme Court Holds Johnson Retroactive to Cases on Collateral Review

Justice Kennedy authored the 7-1 opinion for the Court in Welch v. United States, holding that Johnson applies retroactively to cases on collateral review:
Under this [Teague] framework, the rule announced in Johnson is substantive.  By striking down the residual clause as void for vagueness, Johnson changed the substantive reach of the Armed Career Criminal Act, altering “the range of conduct or the class of persons that the [Act] punishes.” Schriro, supra, at 353.  Before Johnson, the Act applied to any person who possessed a firearm after three violent felony convictions, even if one or more of those convictions fell under only the residual clause.  An offender in that situation faced 15 years to life in prison.  After Johnson, the same person engaging in the same conduct is no longer subject to the Act and faces at most 10 years in prison.  The residual clause is invalid under Johnson, so it can no longer mandate or authorize any sentence.  Johnson establishes, in other words, that “even the use of impeccable factfinding procedures could not legitimate” a sentence based on that clause.  United States v. United States Coin & Currency, 401 U. S. 715, 724 (1971).  It follows that Johnson is a substantive decision [and therefore retroactive].
Three petitions for certiorari are pending, asking the next logical question:  whether Johnson is retroactive as applied to the GuidelinesSee, e.g., Alfrederick Jones v. United States, No. 15-8629, in which the National Association of Federal Defenders recently filed an amicus brief in support of the petition.

Supreme Court Holds Guidelines Error Alone Should Suffice to Show Prejudice

The Supreme Court reversed the Fifth Circuit in Molina-Martinez v. United States, No. 14-8913, maintaining the approach taken by the Third Circuit in reviewing Guidelines error.  In an opinion by Kennedy (joined by Roberts, Ginsburg, Breyer, Sotomayor and Kagan), the Court held:  "courts reviewing sentencing errors cannot apply a categorical rule requiring additional evidence in cases, like this one, where the district court applied an incorrect range but nevertheless sentenced the defendant within the correct range.... [A] defendant can rely on the application of an incorrect Guidelines range to show an effect on his substantial rights."  The Court reasoned:  "From the centrality of the Guidelines in the sentencing process it must follow that, when a defendant shows that the district court used an incorrect range, he should not be barred from relief on appeal simply because there is no other evidence that the sentencing outcome would have been different had the correct range been used.  In most cases a defendant who has shown that the district court mistakenly deemed applicable an incorrect, higher Guidelines range has demonstrated a reasonable probability of a different outcome."  In other words:  "When a defendant is sentenced under an incorrect Guidelines range -- whether or not the defendant's ultimate sentence falls within the correct range -- the error itself can, and most often will, be sufficient to show a reasonable probability of a different outcome absent the error." 

Alito, concurring (joined by Thomas), agreed with the result and that the Fifth Circuit's "rigid approach" is incorrect, but took issue with the majority's "speculat[ion]" about "how often the reasonable probability test will be satisfied in future cases."  He explained:  "The Court's predictions... are predicated on the view that sentencing judges will continue to rely very heavily on the Guidelines in the future, but that prediction may not turn out to be accurate." 
 
Thanks to Laura Mate, Sentencing Resource Counsel, for this summary.

Police Officer Acted as Mere "Listening Post" in Hospital

Dellavecchia v. Secretary, PA DOC, No. 15-1833, decides a 6th Amendment right to counsel issue, which may come up in non-habeas contexts.  Judge Greenberg writes for a unanimous panel (joined by Jordan and Scirica). From the opinion:
On this appeal from an order denying a petition for a writ of habeas corpus we consider the Sixth Amendment right to counsel in an unusual set of circumstances. In September 2012, a state-court jury convicted appellant, James Dellavecchia, of first-degree murder, criminal attempt (homicide), three counts of recklessly endangering another person, and weapons-related offenses. At the trial, Lieutenant Scott Willoughby of the Ridley Township, Pennsylvania, Police Department, the lead officer investigating the crimes, gave testimony that is at the center of this opinion. In particular, Willoughby testified that Dellavecchia made an incriminating statement immediately following a bedside arraignment conducted while he was hospitalized for a self-inflicted head injury on the day following his arrest for the commission of the offenses.

It is undisputed that when Dellavecchia made his statement without counsel present and without having been given Miranda warnings, he had not waived the right to counsel. Thus, as the case law we discuss below demonstrates, the dispute concerns whether Willoughby deliberately elicited Dellavecchia’s statement or was a mere “listening post” when Dellavecchia, spontaneously and without prompting, volunteered incriminating information.

We conclude that Willoughby did not deliberately elicit Dellavecchia’s statement and consequently did not violate Dellavecchia’s Sixth Amendment right to counsel. We also conclude that the evidence at the trial, even disregarding Dellavecchia’s statement, overwhelmingly supported his convictions and thus, even if his Sixth Amendment rights had been violated when he gave the statement, the ensuing error when Willoughby recounted the statement at trial was harmless. Therefore, we will affirm the District Court order denying Dellavecchia’s petition for habeas corpus.
This is what Det. Willoughby testified happened:
[A]s soon as District Justice Gallagher arraigned the Defendant he turned and started to walk out of the room. Mr. Dellavecchia asked me who are you. I introduced myself as Lieutenant Scott Willoughby from the Ridley Township Police Department. I told him I was in charge of the investigation, at which time he asked me to sit. I sat. He put out his hand. I shook his hand. And he stated this. I really fucked up. He asked me to sit down. And he says Scotty, I want to tell you what happened. I sat in the chair and Mr. Dellavecchia began to talk freely and openly.
 
Willoughby said he'd not planned to interrogate defendant and so forgot to bring his Miranda form. He said he did tell Dellavecchia that anything he said could be used against him. He claimed he sat and listened, taking notes, while Dellavecchia gave an uninterruped narrative. He knew that Dellavecchia's son had retained counsel for him.
 
Dellavecchia testified at trial that Robins was the aggressor in an encounter in which he acted in self defense. His statement to the police did not include the self-defense aspects.

Greenberg, applying Massiah v. United States, Brewer v. Williams, US v. Henry, and Kuhlmann v. Wilson, asks whether Willoughby "deliberately elicited" Dellavecchia's statement in contravention of his right to counsel, which had attached after he was arraigned in the hospital. Willoughby, he finds, did nothing but listen to Dellavecchia's "spontaneous and unsolicited" statement. In contrast to Brewer, the state courts found that he did not go to the hospital intending to question the defendant. Without employing a specific AEDPA presumption of correctness analysis, Greenberg indicates that the federal court has no basis to reject that finding. Furthermore, Willoughby told Dellavechhia that anything he said could be used against him. Greenberg sees this as an indication that W. did not elicit D's statement but in fact encouraged him to keep silent.

Because of the lower court's "unassailable" findings on the motion to suppress, the Superior Court's ruling rejecting the claim was not an unreasonable application of the Massiah line of cases. He says in a footnote that even if the case was in a direct review posture the court would reach the same result. And he indicates that the admission of the statement was harmless error.

In a footnote, Greenberg does stress that police can only use a represented defendant's statement only if there is no elicitation.

Thank you to Claudia Van Wyk, EDPA, for this summary.


Plain Error Doyle Reversal

In US v. Victor Lopez, No. 14-4610, the Third Circuit vacates Lopez’s conviction due to a Doyle violation: the prosecution’s repeated references at trial to the defendant’s post-Miranda silence. Doyle v. Ohio, 426 U.S. 610 (1976) prohibits the prosecution from impeaching a defendant with post-Miranda silence. The opinion is the latest in a string of Doyle violations found by the Third Circuit (United States v. Shannon, 766 F.3d 346 (3d Cir. 2014); Gov’t of Virgin Islands v. Davis, 561 F.3d 159 (3d Cir. 2009); Hassine v. Zimmerman, 160 F.3d 941 (3d Cir. 1998)). It is significant principally because trial counsel failed to object, therefore the appeal was on plain-error review. This is the first Third Circuit precedent for unpreserved Doyle error.

Mr. Lopez was tried in the District of New Jersey on a single felon-in-possession count under 18 U.S.C. 922(g). The trial was a credibility contest between Mr. Lopez and the two arresting officers. The officers testified that they stopped and frisked Mr. Lopez and a second man. The other man fled and has not been identified. The officers testified that Mr. Lopez had a gun in his pocket, and they arrested him on that basis. Mr. Lopez testified that he did not have a gun, and that the officers asked him to identify the other man and then framed him for the gun, which the other man must have left at the scene. As the Third Circuit held, “The jurors were faced with the decision of whether to believe the officers’ testimony that they found a gun in Lopez’s pocket or to believe Lopez’s testimony that the police framed him.”

On cross examination, the prosecutor repeatedly asked Mr. Lopez whether, before his trial testimony, he had given this exculpatory account. E.g.: “At any point, from the next day until just before this trial, did you tell anybody, ‘I was framed by police’?” In closing argument, the prosecutor made seven statements that violate the Doyle rule by inviting the inference that Lopez’s prior silence impeaches the credibility of his trial testimony.

The jury posed several factual questions. The court notes: “It appears that the jurors struggled with their assessment of the credibility of the witnesses, sending six questions to the district court during deliberations.”

The Third Circuit (Vanaskie, J., for himself, McKee, and Jordan) holds that all of the prosecution's questions and statements at issue violated Doyle, even those that regarded Lopez’s failure to file a police misconduct report. In a footnote, the court reasona that those questions also raise the impermissible inference that a defendant’s assertion of his right to silence undermines his credibility.

On plain error review, the appellant must make a prejudice showing of a reasonable probability that the error affected the outcome. The Third Circuit finds prejudice for three reasons: (1) “the case hinged entirely on the relative credibility of Lopez and the officers, with no corroborating evidence for either side’s account”; (2) “the Doyle violation was blatant”; (3) “the government’s repeated emphasis of the error in closing argument exacerbated the prejudice from the violation.”

In a footnote, the court describes the prosecution’s misconduct as “particularly egregious” given the previous Doyle precedent in the circuit. In the next footnote, the court thanks the appellate AUSA for candor. At oral argument, he conceded the Doyle error (although not prejudice), and promised to implement improved training to prevent such errors in the future. 

Thanks to Maria Pulzetti, EDPA (who litigated Lopez), for her assistance with this post.