« Effective coverage of California's three-strikes reform initiative | Main | Stark extremes for forthcoming debate over federal sentencing of Amish beard-cutters »

September 21, 2012

AEDPA, Apprendi, Almendarez-Torres (oh my!) debated in full Third Circuit opinion

Just in time for the weekend, the Third Circuit has today issued a lengthy en banc opinion in Garrus v. Sec’y PA Dept. of Corrections, No. 09-3586 (3d Cir. Sept. 21, 2012) (available here), which is sure to warm the hearts (and printers) of all truly hard-core habeas geeks and sentencing fans.  Here is how the lengthy opinion for the majority gets started:

William Garrus (“Garrus”), a Pennsylvania state prisoner, seeks federal habeas relief under 28 U.S.C. § 2254, as amended by the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”).  Garrus was found guilty in state court of voluntary manslaughter in 2001.  At sentencing, the judge increased his sentence beyond the statutory maximum based on 42 Pa. Cons. Stat. § 9714, Pennsylvania‟s “three strikes” law.  In order to do so, the judge made a judicial finding that Garrus had previously been convicted of burglarizing an occupied building, when, in fact, he had only pled guilty to, and been convicted of, second degree burglary (which, under Pennsylvania law, necessarily requires that the burglarized building was unoccupied).  In the habeas petition now before us, Garrus argues that this judicial factfinding violated the rule of Apprendi v. New Jersey, requiring that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”  530 U.S. 466, 490 (2000).  The District Court denied the petition on the basis that the highest state court determination upholding Garrus's sentence was not contrary to or an unreasonable application of clearly established Federal law. 

Key to our determination is a single question: whether, pursuant to AEDPA, the state court unreasonably applied Apprendi by allowing Garrus to be sentenced beyond the statutory maximum based on a judicial finding that Garrus burglarized an occupied building, despite his plea to the contrary.  For the reasons set forth below, we hold that the state court determination upholding Garrus‟s sentence was objectively unreasonable, and that Garrus is entitled to habeas relief. Accordingly, we will reverse the order of the District Court.

Here is how the lead dissent (per Judge Greenaway) gets going:

Under the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Congress vested the Supreme Court — and only the Supreme Court — with the authority to determine clearly established law for purposes of analyzing an inmate‟s federal challenge to a state court judgment.  Today, the majority feigns fidelity to this enduring tenet of AEDPA jurisprudence.  In the process, the majority assumes the role of legislator, rewriting AEDPA to add this Court, along with the Supreme Court, as the two judicial bodies capable of delineating clearly established law.  Armed with this newly created authority, the majority wades through murky Supreme Court precedent and emerges with what it purports to be an unassailable legal principle: that the prior-conviction exception enshrined in Apprendi v. New Jersey, 530 U.S. 466 (2000), forbids a sentencing court from finding facts inconsistent with a prior conviction when applying a state recidivism statute.

Unlike the majority, I cannot discern any principle in Apprendi or other authoritative Supreme Court precedent that would render this interpretation of the prior-conviction exception objectively unreasonable, the deferential standard by which we must judge the state court's determination.  Indeed, the majority identifies not one Supreme Court case expounding on the contours of the amorphous prior-conviction exception.  This lack of clarity coupled with the inherent tension between Apprendi and Almendarez-Torres v. United States, 523 U.S. 224 (1998) — a controlling case the majority brushes aside as having limited relevance — belies the majority's triumphant conclusion that the state court‟s determination was objectively unreasonable.

I do not disagree that the majority's interpretation of the prior-conviction exception is a reasonable and even favorable one, preventing an otherwise seemingly inequitable result. Of course, our task is not to simply choose the preferred reading of an ambiguous legal phrase.  Absent guidance from the Supreme Court, we are left to determine whether the state court's interpretation was objectively unreasonable. Given that this area of law is, at best, in a state of flux, AEDPA “demands that [the] state-court decision[] be given the benefit of the doubt.”  Renico v. Lett, --- U.S. ---, ---, 130 S. Ct. 1855, 1862 (2010) (internal quotation marks and citation omitted).  For this reason, I am compelled to respectfully dissent.

Yummy!

September 21, 2012 at 03:46 PM | Permalink

TrackBack

TrackBack URL for this entry:
http://www.typepad.com/services/trackback/6a00d83451574769e2017d3c381520970c

Listed below are links to weblogs that reference AEDPA, Apprendi, Almendarez-Torres (oh my!) debated in full Third Circuit opinion:

Comments

Cert will be granted, the only question is whether it will be a Grant, Reverse, Remand or a full review. It's really puzzling to me why the 3rd Circuit can't understand AEDPA. I can understand the 9th Circuit having trouble, but normally the 3rd is better than this.

Posted by: Kim | Sep 21, 2012 4:26:05 PM

horse pucky! looks to me like the little lazy nazi's at the state decided to get him to plead out to a lesser crime THEN decided to hammer him to the count they didn't bother to take to court and PROVE BEYOND A REASONABLE DOUBT!

" In order to do so, the judge made a judicial finding that Garrus had previously been convicted of burglarizing an occupied building, when, in fact, he had only pled guilty to, and been convicted of, second degree burglary (which, under Pennsylvania law, necessarily requires that the burglarized building was unoccupied)."

The two-faced govt fucktards are not allowed to have it both ways. THEY plead him out to a charge of hitting a UNOCUPIED building! they can't now claim to hammer him BECASUE it was occupied!

So again we have a STATE AGENT going the EXTRA mile to VIOLATE the law to hammer someone they think is guilty!

"At sentencing, the judge increased his sentence beyond the statutory maximum based on 42 Pa. Cons. Stat. § 9714, Pennsylvania‟s “three strikes” law."

If the stupid fucktard had just FOLLOWED the law at sentencing...this guy would still be in jail for the next 10-20 years and not looking at walking out because the STATE CHEATED!

Posted by: rodsmith | Sep 21, 2012 8:11:39 PM

This seems more like an unreasonable determination of the facts under 2254(d)(2), than (d)(1). The state judge unreasonably determined that Garrus's conviction was for burglarizing an occupied building even though because of his guilty plea it could not have been. A state judge messing up the law of his own state despite how clear it is (or at least appears to be)? That is per se an unreasonable determination.

Of course, this will probably just be summarily reversed by SCOTUS, just like Wetzel was last Term.

Posted by: Ryan | Sep 21, 2012 8:44:27 PM

"A state judge messing up the law of his own state despite how clear it is (or at least appears to be)? "

Which is it Ryan, the law or the facts? As you know, a federal habeas writ cannot issue for what is solely a violation of state law. And if state law gives the state judge the ability to look behind the criminal judgment to impose sentence, then how is it an unreasonable determination of the facts?

Personally, I think that the state judge's actions may be wrong under AT, as AT probably should be limited to the fact of the judgment itself and underlying facts necessary to that judgment, but it's hardly unreasonable to think that it goes further than that.

Posted by: federalist | Sep 21, 2012 9:23:59 PM

This case turns not really on Apprendi, but on a modified categorical approach type theory, I believe. There are obviously a lot of issues and places where that can fall apart here. 1) is this approach viable at all (SCOTUS is actually hearing an appeal to it this term) and 2) if so does it in this case. That is could it only be used to say a fact exists that isn't an element of a state offense but is in a federal offense or can it be used to say even though saying the element exists would be another crime it is ok.

I think the Court will deny cert because of the documents used. I think if he had admitted it was occupied during the factual basis recitation at the plea hearing AEDPA would foreclose overturning it because it isn't clear if the modified categorical approach is OK in general or subject to Apprendi. However here it was a police report and witness statements, not an admission at sentencing. That mean the judge actually is "finding" the fact. It wasn't already found and just in the record as opposed to reflected by the elements. That to me seems to clearly violate Apprendi. The idea that if the fact somehow goes to what a prior conviction is for is not covered because the fact that a conviction exists isn't covered seems to stretch reasonableness. Again I don't think it is as clear if the defendant actually admitted it as part of a plea colloquy (or didn't object to a recitation of the facts that included it at sentencing). If that was the case AEDPA forecloses it. But, a judge finding it based on witness statements and police reports that aren't part of that plea hearing simply goes too far. He is ultimately judging the credibility which Apprendi doesn't allow.

I should also say I haven't had time to read the whole opinion yet. I only had time to skim the facts. So I may revise my opinion.

Posted by: Matt | Sep 21, 2012 9:36:32 PM

"That mean the judge actually is "finding" the fact. It wasn't already found and just in the record as opposed to reflected by the elements. That to me seems to clearly violate Apprendi. The idea that if the fact somehow goes to what a prior conviction is for is not covered because the fact that a conviction exists isn't covered seems to stretch reasonableness. Again I don't think it is as clear if the defendant actually admitted it as part of a plea colloquy (or didn't object to a recitation of the facts that included it at sentencing)."

Doug B., youre the sentencing expert . . . . this seems off to me. Don't courts look behind the elements of an offense when determining sentences under ACCA and other recidivist statutes quite often?

I think, ultimately, arguing that Apprendi is violated here is a bit of a fool's errand. It is without question that Apprendi and AT are in a great deal of tension, but the reality is that AT is still good law. And if a state court reasonably determines where the boundary between AT and Apprendi is by following AT, that would seem to insulate a state court judgment under AEDPA.

Posted by: federalist | Sep 22, 2012 11:21:55 AM

well fed i still say it's ANOTHER two-faced act by a CRIMINAL conspiracy playing as a govt!

IF they wanted to punish him for robbing an OCUPIED building THEN convict him of it! not go for the low-hanger fruit and then use the UNCONVICTED facts to hammer him!

All that means is nobody in their right mind should EVER plea out...force them to TAKE IT TO TRIAL. If they are gonna hammer you as if you were CONVICTED AT TRIAL anyway! why not! Plus you get the fun of watching them spend a fortune to do it!

Posted by: rodsmith | Sep 22, 2012 12:35:41 PM

@Federalist

You are talking about the modified categorical approach I mentioned. The answer in general is yes they do (at least for now as the Court is hearing a challenge to it this term and I think they declare it unconstitutional). But it is only when you have a general statute or missing element. For example if the ACAA requires that the burglarized building be occupied (I don't know if it does) and the statute only requires that he burglarize a building set up for overnight stay a later judge can look back to see if it was occupied to satisfy ACAA requirements. That is not the same as outright contradicting the offense of conviction (PA law for burglary has 4 separate offenses. 1) set up for overnight stay and occupied, 2) set up for overnight stay but not occupied, 3) not set up for overnight stay but occupied, 4) neither set up for overnight stay or occupied. Only 1 counts for the 3 strikes law and this guy was convicted of 4).

But that isn't all that I said. Remember I said that my issue is with using police reports. Sheperd v. US was a SCOTUS case that supports me. Here is the oyez page http://www.oyez.org/cases/2000-2009/2004/2004_03_9168. Basically the later court can only look to the charging document, plea agreement, or factual basis stated at the plea colloquy. The court in Sheperd used police reports and the Supremes reversed. When you see that even with AT, it is pretty clear that what the judge did here was not reasonable. It isn't reaonable to think police reports are ok to use under AT. So even the deferential AEDPA standard doesn't prevent the issuance of the writ. Like I said, I don't think it is clear that if the judge used Sheperd documents that Apprendi and AT would be violated and that AEDPA would prevent habeas relief. But given Sheperd forecloses the use of police reports even for general statutes, it is unreasonable to think they can be used to contradict the offense of conviction. The 3rd Cir. is right on this one.

Posted by: Matt | Sep 22, 2012 3:02:22 PM

Matt, I think your AEDPA analysis is a bit off--first of all, I don't see how AT would be "violated" by this sentencing? It may not be authorized, but that's different from "violated"---that's why it seems to me that the issue is the boundary between AT and Apprendi. Second, I don't see how a plea bargained conviction is "contradicted" by additional facts that showed what the guy actually did. Third, how do you draw a line distinguishing non-judgment facts? I guess you could look at the judgment and make a determination that certain facts go past it, but that line probably gets very murky in other fact patterns. But that rule doesn't seem to be clearly established, and therefore it's difficult to see how the state court's sentencing could be deemed to be unreasonable.

In any event, if the dissent is correct, and other federal courts have seen things differently, then that's really a problem.

Posted by: federalist | Sep 22, 2012 5:08:54 PM

@federalist

You are right "violated" is the wrong word. Other than that I'm not sure I follow. I'm not talking about the line between AT and Apprendi. That is I'm not saying you can't look in the record to see what the offense was. That is the line between AT and Apprendi. I'm talking about what can be used within that line. That is Sheperd. It clearly says police reports are not proper to use. I've said if the judge used a Sheperd approved document then I would agree AEDPA would prohibit issuing the writ. Sheperd is clearly decided.

As for this not contradicting the conviction. The conviction necessarilly says that the the building wasn't occupied or adapted for overnight use. If it was either or both it would be a different offense under PA law. I'd have serious questions about even using Sheperd documents to allow this. The conviction says it was unoccupied. To look back later and say otherwise is troubling. But ultimately, the issue is still that the document used to do this was a police report and witness statements which Sheperd pretty clearly says you can't use.

In reading the dissent the cases they say show other federal courts ruling differently are very much distinguishable in this respect. They really don't include the issue present in this case.

Posted by: Matt | Sep 22, 2012 5:56:00 PM

Matt, one question--isn't Shepard just a statutory interpretation case? Thus, it would be "off the table" (Packer v. Early, I think) as far as habeas is concerned, right?

I think you're missing my point on the "contradiction"---what the guy actually did may not be reflected in the conviction, but it doesn't really contradict the criminal judgment to determine that the guy in fact did more.

AT is good law and deals with what courts can do with respect to prior convictions in sentencing. Apprendi doesn't address that. That's what I am talking about with respect to the boundaries. I think on a clean slate, you are probably right---should sentencing courts really rummage through what a guy actually did if the conviction is specific (maybe collateral estoppel is applicable) enough on the point. I think that under AEDPA, the Court has to speak first and say where the line is.

Posted by: federalist | Sep 22, 2012 8:28:02 PM

Hmmmmm. Did the Pa. courts violate Ashe v. Swenson?

Doug B.? Thoughts?

Posted by: federalist | Sep 22, 2012 8:41:42 PM

sorry fed but your legal mumbo jumbo does not get past the smell test!

This is bullshit. if they wanted to hammer him for robbing an OCUPIED building...then get off the old FAT ASS and CONVICTE him of that!

Based on the drivel your spouting. If someone robbed a bank with a stolen car but was only charged and plead out to the car theft the fucktard govt stooge could then SENTENCE based on the UNCHARGED and UNCONVICTED bank robery!

sorry that is not only BULLSHIT but A CRIME! and could under some creative interpetations of our constutition be considered TREASON by those sworn to uphold it!

Posted by: rodsmith | Sep 23, 2012 2:43:26 PM

So what you're saying, rodsmith, is that if I type in ALL CAPS and toss profanity randomly in my comment, my argument will be more effective? I mean, who speaks in "legal mumbo jumbo" on a blog entitled Sentencing Law and Policy? Only "fucktards," clearly.

Posted by: Tom | Sep 23, 2012 10:47:06 PM

Tom, it's unfortunate that we cannot ignore rod. Apparently, he has a hard time dealing with the fact that no one consults him on what particular result is just or not just, hence the temper tantrums.

Posted by: federalist | Sep 23, 2012 11:00:00 PM

hmm that was so funny i forgot to laugh!

what i am is a normal american citizen. that's the way i look at these idiotic and possibly criminal decisons. Sooner or later all those holier than thou buch who continue to ignore us will not live to regret it! Just ask any OTHER former gov in history...oh wait they are GONE! most being destroyed from within before the dead hulk was pushed over from the outside.

If you charge and convict someone of car theft! you don't then sentence him using something you were either too stupid or too lazy to bother to charge him with.

that is criminal in my book.

i don't care what little bit of text some group of former lawyers...now politicians have stuck on page 9999999999 of the 999999999999 lawbook.


we had that same type of problem years ago here in florida when the truck drivers CDL first came out. The so-called experts came up with a massive test nobody could pass. Well things went back and forth for a while till someone got the brite ideal to make the smart asses who wrote it to TAKE it. they FLUNKED!

test was redone and without the so-called experts being involved.

I think it's long long long past time our so-called govt rulers our not so glorious politicians be required to repeat the constution word for word and be able to answer spot questions about what is or is not legal.

fail and they are OUT!

Posted by: rodsmith | Sep 23, 2012 11:54:20 PM

as for you tom!

this is what is in the real world considered legal mombo'jumbo

"
William Garrus (“Garrus”), a Pennsylvania state prisoner, seeks federal habeas relief under 28 U.S.C. § 2254, as amended by the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Garrus was found guilty in state court of voluntary manslaughter in 2001. At sentencing, the judge increased his sentence beyond the statutory maximum based on 42 Pa. Cons. Stat. § 9714, Pennsylvania‟s “three strikes” law. In order to do so, the judge made a judicial finding that Garrus had previously been convicted of burglarizing an occupied building, when, in fact, he had only pled guilty to, and been convicted of, second degree burglary (which, under Pennsylvania law, necessarily requires that the burglarized building was unoccupied). In the habeas petition now before us, Garrus argues that this judicial factfinding violated the rule of Apprendi v. New Jersey, requiring that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. 466, 490 (2000). The District Court denied the petition on the basis that the highest state court determination upholding Garrus's sentence was not contrary to or an unreasonable application of clearly established Federal law.

Key to our determination is a single question: whether, pursuant to AEDPA, the state court unreasonably applied Apprendi by allowing Garrus to be sentenced beyond the statutory maximum based on a judicial finding that Garrus burglarized an occupied building, despite his plea to the contrary. For the reasons set forth below, we hold that the state court determination upholding Garrus‟s sentence was objectively unreasonable, and that Garrus is entitled to habeas relief. Accordingly, we will reverse the order of the District Court.

Here is how the lead dissent (per Judge Greenaway) gets going:


Under the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Congress vested the Supreme Court — and only the Supreme Court — with the authority to determine clearly established law for purposes of analyzing an inmate‟s federal challenge to a state court judgment. Today, the majority feigns fidelity to this enduring tenet of AEDPA jurisprudence. In the process, the majority assumes the role of legislator, rewriting AEDPA to add this Court, along with the Supreme Court, as the two judicial bodies capable of delineating clearly established law. Armed with this newly created authority, the majority wades through murky Supreme Court precedent and emerges with what it purports to be an unassailable legal principle: that the prior-conviction exception enshrined in Apprendi v. New Jersey, 530 U.S. 466 (2000), forbids a sentencing court from finding facts inconsistent with a prior conviction when applying a state recidivism statute.

Unlike the majority, I cannot discern any principle in Apprendi or other authoritative Supreme Court precedent that would render this interpretation of the prior-conviction exception objectively unreasonable, the deferential standard by which we must judge the state court's determination. Indeed, the majority identifies not one Supreme Court case expounding on the contours of the amorphous prior-conviction exception. This lack of clarity coupled with the inherent tension between Apprendi and Almendarez-Torres v. United States, 523 U.S. 224 (1998) — a controlling case the majority brushes aside as having limited relevance — belies the majority's triumphant conclusion that the state court‟s determination was objectively unreasonable.

I do not disagree that the majority's interpretation of the prior-conviction exception is a reasonable and even favorable one, preventing an otherwise seemingly inequitable result. Of course, our task is not to simply choose the preferred reading of an ambiguous legal phrase. Absent guidance from the Supreme Court, we are left to determine whether the state court's interpretation was objectively unreasonable. Given that this area of law is, at best, in a state of flux, AEDPA “demands that [the] state-court decision[] be given the benefit of the doubt.” Renico v. Lett, --- U.S. ---, ---, 130 S. Ct. 1855, 1862 (2010) (internal quotation marks and citation omitted). For this reason, I am compelled to respectfully dissent."


we don't need 10 pages of this junk. We don't need to know what dumb politician number 2 in 1914 and what dumb politican number 38 in 1992 decided.

All we need to know is. The state charged and convicted him of ONE crime and then decided to sentence him based on a charge they didn't BOTHER to conviced him of!

DING!

wrong!

Posted by: rodsmith | Sep 23, 2012 11:59:50 PM

"All we need to know is. The state charged and convicted him of ONE crime and then decided to sentence him based on a charge they didn't BOTHER to conviced him of!"

As much as I hate feeding the trolls, I cannot resist. First of all, this doesn't capture the issue at hand--the issue is not a harsher sentence for what he was convicted of, but rather how a recidivist enhancement will apply to a separate crime. Now I agree that there are issues with that, as I have said above, but misstating the question just doesn't get it done. Second, you pose this as a huge moral issue, but is it really so bad from a cosmic justice standpoint that a recidivist has the actual facts of his previous crime determined by a judge? No. I agree that there are issues with that--but why don't we stop acting like this is the second coming of the Nazis.

Posted by: federalist | Sep 24, 2012 8:24:04 AM

must be the lawyer in you! you persist in what must be a deliberate attempt to miss the point!

"but rather how a recidivist enhancement will apply to a separate crime."

The point is he was convicted of robbing and unocupied structure. Therefore legally the facts are he robbed an unoccuppied structure!

That is what he was sentenced on and is the ONLY thing that can ever be considered. The so-called robbery of an occupied structure DIDN'T Happen....there was no conviction. Legally it didnt' happen!

If it's being used to enhance a sentence it's a punishment! last time i looked our constitution required a conviction beyond a reasonable doubt before application of a PUNISHMENT was legal.

any other method used to shoehore it in anyway comes under the heading of "legal mumbo-jumbo"

as for the crack about trolls....i am hardly a troll. if i think your right i will say so. when i think your wrong i will say that just as fast.


as for this!

"Second, you pose this as a huge moral issue, but is it really so bad from a cosmic justice standpoint that a recidivist has the actual facts of his previous crime determined by a judge?"

Yes i think it's a big moral problem as our so-called leaders have moved out into the twilight zone and forgoten how the real people in this country think and live.

plus it's not our job to dispense "cosmic justice" our job and duty is to follow the constitution or in good consence say we can't and QUIT!

then there is this little kicker!

"but why don't we stop acting like this is the second coming of the Nazis"

becasue just like the nazi's this and all it's brothers is the nose of the camel under the edge of the tent!

Just like the stupidity of american citizens who refuse to stand up for thier CONSTUTIONAL RIGHTS when confronted with a dumbshit redneck cop...they make it that much HARDER for the next one to do so...since they help program and reinforce said cop's EXPTATION that his shit don't stink and we are REQUIRED to kiss his ass to die of "contempt of cop"

Posted by: rodsmith | Sep 24, 2012 2:13:56 PM

The law and federal govt are losing their grip and understanding of how ordinary folk think. They have become so detached they seem to only to pamper to the wants of the popular media.

Posted by: legal advice | Nov 23, 2012 9:20:39 AM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB