Porter v. McCollum (08-10537), Johnson v. Bredersen (09-7839), Webster V. Cooper (08-10314) and order list

December 7, 2009 Supreme Court Update

Greetings, Court fans!
The Court left us with a handful of interesting tidbits last week: a per curiam decision in Porter v. McCollum (08-10537), where the Court overturned a death sentence based on counsel's failure to adduce sufficient mitigating evidence at the sentencing phase of Porter's trial; statements "concurring in" and "respecting" the denial of cert in Johnson v. Bredersen (09-7839), a case that would have addressed whether a delay in execution can constitute cruel and unusual punishment; and a scathing dissent from a GVR (grant vacate and remand) in Webster v. Cooper (08-10314). The Court also granted cert in three new cases. Today, the Court released another per curiam opinion in Michigan v. Fisher (09-91), addressing warrantless entry into a home, and added two more cases to its docket.
Porter v. McCollum marked the Court's second foray this Term into the prejudice prong of Strickland's ineffective assistance of counsel test. But unlike in Wong v. Belmontes, where the Court reversed the Ninth Circuit's grant of habeas relief, in Porter, the Court reversed the Eleventh Circuit's denial of relief. Porter's court-appointed sentencing counsel (who had never handled a death penalty sentencing hearing before) met with him just once, and put on only one mitigation witness. Porter filed a state court petition for post-conviction relief and presented substantial mitigating evidence that his counsel did not investigate or present, including evidence that Porter was repeatedly abused as a child; had minimal education and significant learning difficulties; and that Porter fought for his country in brutal battles in the Korean war, for which he receive numerous commendations, but which caused him to suffer significant after-affects (including nightmares that led Porter to climb his walls with knives). Porter also presented expert testimony that he suffered from brain damage that could manifest in violent behavior. The state courts didn't address whether Porter's counsel's performance was deficient because they concluded that even if it was, Porter couldn't establish prejudice (i.e.: a reasonable probability that the evidence would have made a difference in the outcome of his case). The district court disagreed and granted Porter's habeas petition, but the Eleventh Circuit reversed. The Court reversed right back, holding that Porter's counsel's failure to conduct even a cursory mitigation investigation was constitutionally deficient and that the state court's determination that Porter suffered no prejudice was unreasonable since the significant mitigating evidence that was not presented might well have swayed the advisory jury and sentencing judge.
Next up, in Michigan v. Fisher, the Court considered when the "emergency aid exception" may be invoked to overcome the presumption that a warrantless search inside a home is unreasonable and thus in violation of the Fourth Amendment. Police responded to a call that a man was "going crazy," and arrived to the location (a home) to find a smashed pick-up truck with blood on the hood, a damaged fence, and three broken windows on the house. Jeremy Fisher, whose hand was cut, was screaming and throwing things inside the house and had barricaded the front door with a couch. When one officer pushed the door partway open, he saw Fisher pointing a long gun at him. Fisher was then arrested for assault with a dangerous weapon and possession of a firearm during the commission of a felony. The Michigan state courts suppressed the evidence about Fisher's gun after finding that the officer's entry into the home was unlawful under the Fourth Amendment because there was no evidence that Fisher's cut was a "likely serious, life-threatening" injury. The Court reversed, finding that the state courts had set the bar too high. The officer had an objectively reasonable basis for believing that Fisher needed medical assistance and for believing that other individuals (that might have been in the house) were in danger. The search was thus reasonable. Justice Stevens, joined by Sotomayor, dissented. They would have deferred to the factual determination of the trial judge that the officer did not have a reasonable basis for the search, but was "just acting on some possibilities."
Proving that even inaction can provoke a fight, the denial of cert in Johnson v. Bredersen prompted opinions from Justice Stevens (joined by Breyer) and from Justice Thomas. Johnson, who was confined to a solitary cell for 29 years awaiting his execution, filed a Section 1983 action seeking to enjoin his execution. He argued that the long delay combined with execution would constitute cruel and unusual punishment in violation the Eighth Amendment. The Sixth Circuit construed Johnson's Section 1983 claim as a habeas corpus petition under 28 U.S.C. § 2244 and concluded it was barred as a successive petition. Justices Stevens and Breyer would have granted cert to resolve both the procedural question of how to properly raise an Eighth Amendment claim based on delay prior to execution and to determine whether such a claim is cognizable. Justice Thomas concurred in the denial of cert, but wrote separately to emphasize his view that delay, caused at least in part by Johnson's filing of numerous court proceedings challenging his conviction and sentence, could never constitute a cognizable Eighth Amendment claim, however filed. But he also agreed with the Sixth Circuit that such a claim was best construed as a habeas claim since it challenged the validity of Johnson's sentence and thus also was barred as a successive petition in this instance.
Justice Scalia expressed his frustration with the Court's liberal use of GVRs with a scorching dissent in Webster v. Cooper. The Court GVR'd the case to the Fifth Circuit for further consideration in light of Jimenez v. Quarterman (2009), a case published over two months before the Fifth Circuit acted in Webster. Jimenez could not constitute an "intervening" factor and therefore was not a valid basis for a GVR, in Scalia's opinion. "Once we disregard the logic . . . of ‘intervening-factor' GVRs, they metastasize into today's monster. We should at least give it a new and honest name – not GVR, but perhaps SRMEOPR: Summary Remand for a More Extensive Opinion than Petitioner Requested. If the acronym is ugly, so is the monster." (No one can say it quite like Scalia.)
And that brings us to the cert grants:
Morrison v. National Australia Bank (08-1191) will address the scope of federal court jurisdiction over transnational securities frauds and specifically whether the antifraud provisions of the United States securities laws extend to transnational frauds where: "(a) the foreign-based parent company conducted substantial business in the United States, its American Depository Receipts were traded on the New York Stock Exchange and its financial statements were filed with the Securities Exchange Commission ('SEC'); and (b) the claims arose from a massive accounting fraud perpetrated by American citizens at the parent company's Florida-based subsidiary and were merely reported from overseas in the parent company's financial statements."
Renico v. Lett (09-338), which asks: "Whether the United States Court of Appeals fro the Sixth Circuit, in a habeas case, erred in holding that the Michigan Supreme court failed to apply clearly established Supreme Court precedent under 28 U.S.C. § 2254 in denying relief on double jeopardy grounds in the circumstance where the State trial court declared a mistrial after the foreperson said that the jury was not going to be able to reach a verdict."
Barber v. Thomas (09-5201), poses two related questions for review: (1) "Does ‘term of imprisonment' in Section 212(a)(2) of the Sentencing Reform Act, enacting 18 U.S.C. § 3624(b), unambiguously require the computation of good time credits on the basis of the sentence imposed [as opposed to time actually served]?"; and (2) "If ‘term of imprisonment' in the federal good time credit statute is ambiguous, does the rule of lenity and the deference appropriate to the United States Sentencing Commission require that good time credits be awarded based on the sentence imposed?"
Christian Legal Society Chapter v. Martinez (08-1371), which asks: "Whether the Ninth Circuit erred when it held . . . that the Constitution allows a state law school to deny recognition to a religious student organization because the group requires its officers and voting members to agree with its core religious viewpoints."
Dillon v. United States (09-6338), which presents two questions for review prompted by the Court's landmark decisions in United States v. Booker (2005) and Kimbrough v. United States (2007), holding the Federal Sentencing Guidelines advisory under certain circumstances: (1) "Whether the Federal Sentencing Guidelines are binding when a district court imposes a new sentence pursuant to a revised guidelines range under 18 U.S.C. § 3582 [which authorizes a sentencing modification where a guidelines range has been lowered subsequent to sentencing]"; and (2) "Whether during a § 3582(c) sentencing, a district court is required to impose a sentence based on an incorrectly calculated guidelines range [here, an incorrectly calculated criminal history category]."
That's all for now. As always, thanks for following the Court with me.

From the Appellate and Complex Legal Issues Practice Group at Wiggin and Dana
For more information, contact Kim Rinehart or any other member of the Practice Group at 203-498-4400