Habeas Corpus - The Front End of Habeas

Typically, on this blog, I focus almost exclusively on matters that relate to habeas proceedings themselves, as opposed to just pure criminal law issues.

However, it is true that on the front end of habeas are those decisions by the Supreme Court that produce the "clearly established law" on which habeas relief can be granted.

So, at times, I do discuss the new "clearly established law," such as when the Court decided Melendez-Diaz.  But not all of them.  Probably more out of a lack of time than a lack of interest.

But it goes without saying that it's important to be aware of the upcoming cases and eventual decisions from the Supreme Court.  I don't think I can spend as much time focusing on them as I would like, but I'll try to give a heads up and give links to some analysis when I see it.

In the next couple of months, the Court will be hearing argument in these cases with the potential for establishing clearly established law:

Maryland v. Shatzer (10/5) -- police duty to abide by a request for counsel (and thus a prohibition on questioning) three years after it was first asserted

Florida v. Powell (12/7) -- police duty to clarify and explain Miranda warnings before questioning a subject

Sullivan v. Florida; Graham v. Florida (11/9) -- constitutionality of sentencing juvenile to life without parole

Padilla v. Kentucky (10/13) -- Is an attorney ineffective for misadvising a defendant about the deportation consequences of the conviction, and if the misadvice induced the plea, does the plea need to be set aside?

I assuming that there are other criminal law cases for the potential to create some clearly established law, but I'll wait to mention them until they are calendared.

And at least one cert. grant announced on Wednesday also could create some clearly established law:

O'Brien v. US - whether a mandatory minimum sentence requires the judge or a jury to determine the fact in support of the imposition of the sentence

Although O'Brien is a federal criminal case interpreting a federal criminal statute, it has been suggested that this case could end up overruling Harris v. US, which held that Apprendi does not apply to a mandatory minimum sentence.  If true, that could have a big effect in New York as criminal history sentencing enhancements often times only increase the minimum sentence, but not the maximum. [My mistake, see Al O'Connor's comment below]

Comments

[Al O'Connor]

Regarding O'Brien - Most mandatory minimum terms in New York are dictated by prior felony convictions alone, and so would fall outside of Apprendi's reach. New York law does include a few sentencing provisions where the minimum term might be governed by judicial fact finding within the meaning of Apprendi. However, the most significant, the ameliorative gun sentencing provisions [Penal Law sections 70.02 (2)(c) and (4), Penal Law section 70.15 (1)], have been rendered largely irrelevant by the 2006 amendment raising possession of a loaded gun to a Class C violent felony. Another sentencing law in this category, the domestic violence exception to determinate sentencing (Penal Law section 60.12), has been invoked only a handful of times since 1998.