Knowles v. Mirzayance (07-1315), Puckett v. United States (07-9712) and order list

March 27, 2009 Supreme Court Update

Greetings, Court fans!
The Court returned from recess without much fanfare, issuing two criminal decisions and an Order list this week. (For those of you who keep track, the Court is well ahead of its pace from last Term, having released 35 decisions, as compared to 27 as of this date last year. Perhaps Chief Justice Roberts will eventually make good on his promise to expand the docket after all.)
In Knowles v. Mirzayance (07-1315), the Court unanimously rejected a federal habeas petition claiming ineffective assistance of counsel based on a criminal defense attorney's decision not to pursue a not guilty by reason of insanity ("NGI") defense. Although Mirzayance had confessed to stabbing his cousin nine times and then (for good measure) shooting her four times, he entered pleas of not guilty and NGI, and went to trial. At the guilt phase of his bifurcated trial, Mirzayance offered evidence of his insanity in an attempt to steer the jury towards non-premeditated second-degree murder. The jury didn't buy it, and found him guilty of premeditated first-degree murder. After the insanity evidence went over like a lead balloon at the guilt phase—and after Mirzayance's parents refused to testify on their son's behalf in the NGI phase—defense counsel advised his client to withdraw his NGI defense (which he, and not the government, would have the burden of proving). The California courts rejected Mirzayance's claim that this advice constituted ineffective assistance of counsel, but the Ninth Circuit ultimately granted his habeas petition. Justice Thomas, writing for the Court, first reviewed the petition under the "doubly deferential" combined Antiterrorism and Effective Death Penalty Act ("AEDPA") and Strickland v. Washington (1984), standard—i.e., the state court's ineffective assistance determination was not just incorrect, but was unreasonable. (Justices Scalia, Souter, and Ginsburg did not join this part of the opinion.) Under this deferential standard, the Court rejected the notion that it was ineffective assistance to not pursue a demonstrably weak claim because there was "nothing to lose" by going forward. But even if the claim were subject to de novo review, the Court still would have reversed because there was no evidence that counsel was ineffective or that the outcome would have been different had he pursued the NGI claim. (Everyone joined this part.) In sum, criminal defense counsel do not need to browbeat reluctant witnesses into testifying, raise every nonfrivolous defense, or have a tactical reason—above and beyond a reasonable appraisal of a claim's "dismal prospects for success"—for recommending that a weak claim be dropped.
The next case involved a similarly unsympathetic defendant. In Puckett v. United States (07-9712), the Court considered whether "plain error" review applies to a claim that the Government breached a plea agreement where the defendant fails to object to the sentence on that basis. Short answer: It does. As part of Puckett's plea agreement, the Government agreed to seek a three level reduction in his offense level under the Sentencing Guidelines for acceptance of responsibility. The Government filed a motion for reduction . . . but between entry of Puckett's guilty plea and sentencing (which occurred three years later due to Puckett's poor health), Puckett engaged in yet more criminal activity, which caused the Government to argue against the downward departure at sentencing. Puckett's counsel failed to object on the ground that the Government broke its promise under the plea agreement and the trial court declined to depart, noting that an acceptance of responsibility departure "is [so] rare as to be unknown" where a defendant has continued to engage in criminal conduct. On appeal, the Fifth Circuit reviewed under the "plain error" standard, which requires a defendant to establish that the error: (1) was not affirmatively waived; (2) was clear or obvious; and (3) affected the defendant's substantial rights. If those three prongs are satisfied, a court has discretion to remedy the error if it "seriously affect[ed] the fairness, integrity or public reputation of the proceedings." The court affirmed Puckett's sentence, concluding that while the error was not affirmatively waived by Puckett, and was obvious, it did not effect Puckett's "substantial rights" because, in all likelihood, Puckett would have received the same sentence regardless of how the Government proceeded.
Justice Scalia, wrote for a seven-Justice majority, affirming. Unpreserved errors generally are waived, but Federal Rule of Civil Procedure 52(b) allows for appellate review of a "plain error that affects substantial rights" even if not raised in the trial court. Puckett first argued that a Government's breach of a plea agreement isn't subject to plain error review because: (1) a plea must be knowingly and voluntarily entered; (2) where the Government doesn't adhere to its promises, a plea agreement isn't knowing and voluntary because the defendant doesn't understand its true consequences; (3) thus the guilty plea and accompanying waiver of the right to trial is void; and finally (4) because a defendant must personally waive the right to trial, Puckett's counsel's failure to object couldn't resurrect the voided trial waiver. Quite an argument . . . but the Court didn't buy it. As Scalia explained, the plea agreement is like a contract. The fact that the Government ultimately failed to perform doesn't mean the agreement was void at the outset. (There was no evidence that the Government never intended to perform and thus fraudulently induced Puckett to enter the agreement.) Further, Puckett confused the concepts of "waiver" and "forfeiture." While the Court has found that "waiver" – i.e., knowing relinquishment – of the right to trial by jury must be done by the defendant himself, those cases say nothing about the standard of review where errors are inadvertently not raised – i.e., "forfeited." The waiver cases deal with whether an error has occurred, whereas forfeiture cases deal with the standard of review for evaluation of the error on appeal. The Court also rejected the policy argument that breach of a plea agreement by the Government shouldn't be subjected to plain error review because the Government should be held to its bargains. Finally, applying the plain error standard, the Court agreed with the Fifth Circuit that Puckett's substantial rights were not violated because it was clear that the district court would not have granted the three level reduction regardless of the Government's position.
Justice Souter, joined by Justice Stevens, dissented. In their view, no one should "spend a day behind bars as a convict without a trial or his own agreement." Defendant was entitled to "take the Government at its word" and was subjected to "substantial injury" when he was sentenced pursuant to an agreement that was not honored. Since the dissenters analysis would find the requirements of plain error review met in every case in which a plea agreement was breached, they would skip it altogether.
The Court also welcomed the new Solicitor General, Elena Kagan, to the Court this week, asking her office to submit its views on three cases. The first two, Level 3 Communications v. St. Louis (08-626) and Sprint Telephony v. San Diego County (08-759), concern the scope of the preemption clause in the Telecommunications Act of 1996, and whether it covers local regulation of wireless and fiber optic services that does not expressly prohibit the provision of telecommunications service, but may impede an entity from providing service through fees and restrictions. The third, Robertson v. U.S. ex rel. Watson (08-6261), presents the issue of whether prosecution for criminal contempt of a congressionally created court in Washington D.C. must be done in the name of the United States.
Until next week, thanks for reading!
From the Appellate Practice Group at Wiggin and Dana
For more information, contact Kim Rinehart or any other member of the Practice Group at 203-498-4400