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April 5, 2005

Almendarez-Torres Episode Two? (aka The Revenge of Shepard)

As stressed in a series of posts last month, the Supreme Court's opaque work in Shepard (basics summarized here, commentary here and here and here) was so intriguing in part because the four Justices who kept the Almendarez-Torres "prior conviction exception" just barely alive in Shepard were the four dissenters in Almendarez-Torres.  But Justice Thomas, who back in 1998 provided the key fifth vote upholding judicial fact-finding of a prior conviction and thus created what is now the "prior conviction exception" to the Jones-Apprendi rule, asserted in Shepard that Almendarez-Torres "has been eroded by this Court's subsequent Sixth Amendment jurisprudence, and ... in an appropriate case, this Court should consider Almendarez-Torres' continuing viability."  (A full explanation of all this is in this post.)

As Lyle Denniston explains in this wonderfully clear report at SCOTUSblog, assistant federal public defender Peter Fleury is now arguing to the Supreme Court that the appropriate case for considering Almendarez-Torres' continuing viability is . . . . . . Almendarez-Torres!  As Lyle explains in his post (which covers all the particulars of Supreme Court procedure), "Fleury has asked the Court to reopen the 1998 decision that is the source of that exception: Almendarez-Torres v. United States (decided March 24, 1998, under docket 96-6839)."  In Lyle's words: "It may be a long shot, but Fleury deemed it worth a try. The Court may consider the petition later this month."

April 5, 2005 at 10:07 PM | Permalink


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how can i get a copy of Peter Fleury's brief filed with the Supreme Court?

Posted by: jimmy | Apr 6, 2005 11:18:02 AM

Check with the SCOTUSblog folks, perhaps. Also, there is now some very interesting comments at that locale in the discussion of this petition.

Posted by: Doug B. | Apr 6, 2005 5:39:28 PM

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