A Weekly Summary of Snippets of Justice From the Federal Courts

Vol. 8, No. 19              Covering Cases Published in the Advance Sheets through May 7, 2001

Highlights of this Issue:

Supreme Court Decisions:

• In a brief, but important, per curiam order (that received virtually no coverage in the press), the Supreme Court reaffirmed, in Sullivan, its lack of concerns about the use of pretextual stops by the police as a means of conducting "a full-blown inventory search . . . with impunity," holding that such exercises of official discretion are unlimited under the Fourth Amendment.
  
  
• The Supreme Court held in Booth that the Prison Litigation Reform Act requires a prisoner to exhaust his administrative remedies before bringing suit over prison conditions - even when the prisoner is seeking monetary damages that are not available in the prison grievance process.
  
  
• In Becker the Supreme Court held that an Ohio prisoner who filed his own notice of appeal in a federal civil rights suit but failed to sign the notice did not waive his right to proceed with the appeal as the Sixth Circuit had ruled.

Sanctions for Government Discovery Violation:

• The Davis case from the Eighth Circuit is a rare example of an approved preclusion of "critical" DNA evidence as a sanction against the prosecutor because he failed to disclose to the court or defense counsel that he even intended to use such evidence until the eve of trial and more than a month after the time for discovery was closed.
  

U.S.S.G. and Sentencing Issues:

• The Eighth Circuit held in Loud Hawk that factors such as a defendants mental or psychological condition, his addiction to drugs, and other similar ameliorating conditions are irrelevant to any upward departure imposed by the court based on "extreme conduct" under U.S.S.G. § 5K2.8.

Apprendi Watch:

• In Parise, District Judge Dorsey revisited his previous decision in this case, on a Government motion for reconsideration, and firmly ruled that Apprendi applies retroactively on collateral review because it was a "watershed rule necessary to the fundamental fairness of the criminal proceeding."

Dont forget to visit the Apprendi  Watch section of our Web site each week - the most current and comprehensive site on the entire Internet for all the latest developments involving that watershed decision. That section now contains summaries of more than 200 Apprendi decisions, links to numerous Apprendi articles and more than 100 Apprendi briefs and motions, and a listing of the 49 cases that the Supreme Court has vacated to date based on Apprendi.

Arkansas v. Sullivan, No. 00-262 (U.S. Sup. Ct. 05/29/2001) (Per Curiam)

This brief per curiam order, which received surprisingly little coverage in the press, is both important and noteworthy because of its strong affirmation of the Supreme Courts obvious lack of concerns about the use of pretextual stops as the justification for full blown inventory searches that otherwise would be unlawful under the Fourth Amendment.

In this case, the defendant, Kenneth Sullivan, was stopped for a minor traffic infraction. He was then arrested because he could not produce his registration and insurance papers and because the police officer noticed a rusted roofing hatchet on the cars floorboard which was treated as an illegal "weapon." The police then conducted an inventory search of the car and discovered some drugs and drug paraphernalia. After Sullivan was charged with various state drug offenses, he sought to suppress the results of the search, claiming that his arrest was merely a "pretext and a sham to search" him and his vehicle. The trial court granted the suppression motion and the Arkansas Supreme Court affirmed.

To put the search in context, Justice Ginsburg, in a concurring opinion that was joined by Justices Stevens, OConnor and Breyer, noted that the Arkansas Supreme Court "feared" that validating Sullivans arrest "would accord police officers disturbing discretion to intrude on individuals liberty and privacy." Thus, that Court expressed an unwillingness "to sanction conduct where a police officer can trail a targeted vehicle with a driver merely suspected of criminal activity, wait for the driver to exceed the speed limit by one mile per hour, arrest the driver for speeding, and conduct a full-blown inventory search of the vehicle with impunity."

The Supreme Court rejected those concerns and reversed. It held that the Arkansas Courts decision "cannot be squared with our decision in Whren [v. U.S., 517 U.S. 806 (1996)], in which we noted our unwilling[ness] to entertain Fourth Amendment challenges based on the actual motivations of individual officers and held unanimously that [s]ubjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis." In her concurring opinion, Justice Ginsburg actually went further. Responding to the Arkansas Supreme Courts concerns about the "disturbing discretion" given to police officers "to intrude on individuals liberty and privacy," she wrote that "this Court has held that such exercises of official discretion are unlimited by the Fourth Amendment." (Emphasis added).

The Supreme Court may have taken umbrage at two conclusions reached by the Arkansas Supreme Court. First, it rejected the States argument that Whren makes "the ulterior motives of police officers . . . irrelevant so long as there is probable cause for the traffic stop" - on the grounds that much of Whren was "dicta".

Second, it reasoned that it was free to provide "greater protection than [the Supreme Courts] own federal constitutional precedents provide." That attempted encroachment into the Supreme Courts territorial prerogative did not sit well with the Justices. They firmly stated that "while a State is free as a matter of its own law to impose greater restrictions on police activity than those this Court holds to be necessary upon federal constitutional standards, it may not impose such greater restrictions as a matter of federal constitutional law when this Court specifically refrains from imposing them." (Emphasis in original) (Internal citations omitted).

While the Courts decision was unanimous, the four concurring Justices joined in reversing the Courts decision "given the Courts current case law." However, they also stated that if future experience demonstrates "anything like an epidemic of unnecessary minor-offense arrests," they "hoped" the Court would reconsider its recent precedent.

Parise v. United States, 135 F.Supp.2d 345 (D.Conn. 2001) (Judge Dorsey)

Last year, in a decision reported at 117 F.Supp.2d 204 (D.Conn. 2000), Judge Dorsey granted habeas relief based upon Apprendi pursuant to 28 USC § 2255; and vacated the 240 month sentence that had been imposed on the petitioner in this case pursuant to 21 U.S.C. § 841(b)(1)(A)(ii) because the jury made no finding with respect to the quantity of drugs involved, and thus, the petitioner should have been sentenced under 21 U.S.C. § 841(b)(1)(C). Judge Dorseys decision implicitly assumed that Apprendi was retroactive to cases on collateral review - but he never made that flat statement.

The Government filed a request for reconsideration, and Judge Dorsey granted that request. At the rehearing, the Government objected to the sentence vacatur, arguing that: "1) the Apprendi issue was not timely raised; 2) collateral relief is procedurally barred because Apprendi, as a new rule of constitutional criminal procedure, may not be applied retroactively; and 3) petitioner fail[ed] to show cause and prejudice." (Id., at 348).

Judge Dorsey rejected each of those arguments. On the timeliness issue, he concluded that the Government had been on notice that the petitioner was challenging the district courts finding of drug quantity; and, although he did not specifically raise an Apprendi claim until more than a year after his conviction became "final" for purposes of § 2255, his amended petition did state an Apprendi claim, and that amendment "relates back" to the date of the original pleading pursuant to Fed.R.Civ.P. 15(c)(2). He noted that "[r]elation back is to be liberally granted where no new cause of action is alleged." (Id.)

On the retroactivity issue, Judge Dorsey made one of the strongest judicial endorsements that we have seen to date of the principle that Apprendi should apply retroactively to cases on collateral review. He wrote that the Apprendi rule "is certainly of constitutional dimension as it draws life from a criminal defendant's right to a trial by jury and right to have the jury verdict based on proof beyond a reasonable doubt. Despite its deep-rooted constitutional origins, the rule dramatically alters the manner in which defendants must be indicted, the level and type of evidence the Government must present to prove elements of an offense previously considered to be sentencing factors, and the questions ultimately presented to the jury. Indeed, Justice O'Connor declared Apprendi to have established a watershed rule. Thus, while Apprendi did establish a new rule of criminal procedure, it may be applied to cases on collateral review because it is a watershed rule necessary to the fundamental fairness of the criminal proceeding." (Id., at 349) (Internal citations omitted.)

Finally, Judge Dorsey addressed the Governments contention that Parise had forfeited his right to make an Apprendi claim by failing to raise that claim in a timely manner initially, and then by failing to show cause and prejudice justifying that procedural default. Judge Dorseys response was simple: "[A] defendant cannot be deemed to have forfeited a claim by not raising it on direct review if, at the time of review, no legal right underlying the claim existed - such as when a supervening decision alters settled law. United States v. Viola, 35 F.3d 37, 42 (2d Cir.1994) (If we were to penalize defendants for failing to challenge entrenched precedent, we would be insisting upon an omniscience on the part of defendants about the course of the law that we do not have as judges.). . . . Accordingly, Parise cannot be said to have forfeited his right to make an Apprendi-type claim by not raising it on appeal, because settled law did not provide a legal basis for the claim at the time of said appeal." (Id., at 350).

For all those reasons, Judge Dorsey adhered to his original decision. He reaffirmed his earlier rulings in which he vacated Parises initial sentence of 240 months, and then resentenced Parise to 198 months in prison - representing a four year reduction in his sentence.

Copyright © 2001 Punch and Jurists, Ltd.