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December 30, 2008

Ninth Circuit finds 28-year "failure to register" sentence unconstitutional

The last few weeks have hardly been a slow period for notable sentencing decisions from the federal circuit courts.  And today brings some intriguing rulings on federal sentencing or quasi-sentencing issues from the Fifth, Sixth, Seventh, Eighth, Tenth and DC Circuit.  But the Ninth Circuit has the most significant ruling of this big batch of opinions ringing out this rocking 2008 sentencing year in the habeas case of Gonzales v. Duncan, No. 06-56523 (9th Cir. Dec. 30, 2008) (available here). The first two paragraphs of reveal why this ruling is so notable:

Cecilio Gonzalez was convicted by a jury of failing to update his annual sex offender registration within five working days of his birthday, in violation of California Penal Code § 290(a)(1)(D). Because of his prior criminal convictions, he received a sentence of 28 years to life imprisonment under California's “Three Strikes” law.  On habeas review, we must decide whether his sentence violates the Eighth Amendment’s prohibition against cruel and unusual punishment and, if so, whether the contrary conclusion of the California Court of Appeal constituted an unreasonable application of clearly established federal law.

The California courts have characterized the state’s registration requirement as a regulatory offense, a “most technical violation” that “by itself, pose[s] no danger to society.”  People v. Cluff, 105 Cal. Rptr. 2d 80, 81, 86 (Cal. Ct. App. 2001).  In a case materially indistinguishable from this one, the California Court of Appeal concluded that a Three Strikes sentence of 25 years to life imprisonment for violating the registration requirement was “grossly disproportionate to the offense” and violated the Eighth Amendment.  People v. Carmony, 26 Cal. Rptr. 3d 365, 368-69 (Cal. Ct. App. 2005). Although our standard of review is more deferential, we too conclude that Gonzalez’s sentence is grossly disproportionate to his offense. We further conclude that the California Court of Appeal’s decision affirming Gonzalez’s sentence constitutes an unreasonable application of clearly established federal law under 28 U.S.C. § 2254(d)(1). We therefore reverse the district court’s denial of Gonzalez’s petition and remand with instructions to grant the petition for a writ of habeas corpus.

The fact that a federal circuit court has found a non-capital prison sentence unconstitutionally excessive is big new in itself.  Indeed, I cannot recall a federal circuit ruling to this effect in all the years I have been blogging.  Add in the fact that this is a state habeas case involving a sex offender and California's Three Strikes law, and the story gets that much richer. 

Now lets also notice the fact that the (notoriously liberal?) Ninth Circuit in this case was represented by a panel with two republican appointees and only on (senior) democratic appointee, while the state of California was represented by the (notoriously liberal?) state AG Jerry Brown.  And the author of the opinion was Judge Bybee, who is considered among the most conservative of the circuit appointees of outgoing President George Bush. 

This is fascinating stuff, as is what might come next.  I sincerely hope that California might seek cert, because such a petition coming from the state has a much greater likelihood of garnering a grant than the many petitions coming from defendants who lose Eighth Amendment challenges to long prison sentences in the circuit courts.

UPDATE:  The Los Angeles Times has this report on the Gonzales ruling, which has this non-information about the possible future of the case: "The state attorney general's office declined to comment on the ruling or say whether it would be appealed, said Christine Gasparac, press secretary for Atty. Gen. Jerry Brown."

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I’ve been trying to tell my hippie friends that---despite his background---Judge Bybee is far from unreachable on criminal defense issues. Maybe they will listen to me now!

Of course, JB is still quite conservative, but it seems to me that when it comes to constitutional criminal procedure, he is driven more by the particular facts of each case than by any big-think predilections to push the law in one direction or the other. Such an independent streak is likely to lead to "surprising" results given our contemporary expectation that most criminal/habeas cases will break down along highly predictable partisan lines.

Posted by: observer | Dec 30, 2008 3:33:36 PM

Doug, you said, "I sincerely hope that California might seek cert, because such a petition coming from the state has a much greater likelihood of garnering a grant than the many petitions coming from defendants who lose Eighth Amendment challenges to long prison sentences in the circuit courts."

I can't say I share your enthusiasm. As someone who believes the 8th Amendment *should* be interpreted as forbidding disproportionate punishments, I think a cert. grant would be bad. Tea leaf readers say that a grant most often leads to a reversal, and in this context there's no reason to doubt that. Let's let this opinion lie for a few years and see if some other circuit courts can be persuaded to follow it.

Posted by: Texas Lawyer | Dec 30, 2008 4:51:38 PM

"The fact that a federal circuit court has found a non-capital prison sentence unconstitutionally excessive is big news in itself."

Indeed, which makes me wonder about the majority's conclusion that the sentence "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court."

The panel has clearly gotten the signal from the Supreme Court that "as determined by the Supreme Court" means what it says (though Reinhardt and others insist that that bit is unconstitutional). And there's a strong argument that Solem could control this case.

My gut reaction is that the majority is right and that the sentence is probably unconstitutional under the Eighth Amendment. But I wonder if this is the sort of sentence that has to nonetheless be affirmed under the standard of review set out in AEDPA. This is similar to the facts of Solem, but on the other hand, the panel doesn't much discuss the fact that Gonzalez had been convicted of 3 "serious or violent felonies" that constituted "strikes" under the California law.

Gonzalez isn't some hapless, harmless guy who got a little confused about his paperwork. He's a violent sex offender and the California legislature has decided that he's in a category of people who need to be kept track of, and that the hyperdeterrent policy of the "Three Strikes" law is appropriate.

Maybe this guy deserves a break, but I'll be very interested to see if this case is pursued any further. Also, as a doctrinal matter, like Prof. Berman I'm happy to see signs of life from the Eighth Amendment outside the context of capital cases (so to speak).

Posted by: | Dec 30, 2008 4:54:05 PM

Doug -- There is a Wardlaw opinion from around 2004 (post Lockyer v. Andrade) where the 9th Circuit struck down a 3 strikes sentence as cruel and unusual. The state, per then AG Lockyer, decided not to take it up to the Supremes or to seek en banc -- because of that, there is a chance it may have been subsequently vacated. But I am sure it is available on Westlaw and it was a published opinion so it is certainly in bound editions of F.3d.

Posted by: Jon | Dec 30, 2008 7:10:38 PM

Here you go:

Ramirez v. Castro365 F.3d 755, C.A.9 (Cal.),2004. Holding: The Court of Appeals, Wardlaw, Circuit Judge, held that petitioner's 25-years-to-life sentence under California's “Three Strikes” law for his third shoplifting offense was grossly disproportionate to the crimes committed.

Still good law.

Frankly, I am shocked that Doug would not know this one given his otherwise encyclopedic knowledge in this area. I am just an IP litigator who knew this from my clerking days.

Posted by: Jon | Dec 30, 2008 7:16:32 PM

Jon, Ramirez v. Castro was decided April 19, 2004. The first blog entry here appears to be May 14, 2004. Thus the statement "I cannot recall a federal circuit ruling to this effect in all the years I have been blogging" is technically correct. I can only assume that Ramirez sits in the equivalent of remote storage in our host's brain and that he would have recalled it eventually.

Interestingly (to me, at least) is that in Ramirez, Judge Kleinfeld dissented on the ground that although the sentence was unduly harsh, it should have been upheld because of the deferential standard of review in habeas cases. Kleinfeld's dissent discusses all of the cases that the majority discusses in this case.

Here's the summary part:


In the end, what prevents me from joining the majority, which I would very much like to do, is the word “unreasonable” in AEDPA. The Supreme Court has said, on several occasions, that “unreasonable” means not just wrong, but so
wrong as to be “objectively unreasonable.”fn8 The Court told us in Andrade that even “[t]he gloss of clear error fails to give proper deference to state courts by conflating error (even clear error) with unreasonableness.”fn9 That is quite a standard. I can easily say (and have said) that I would have reached a different
conclusion from the sentencing court, and perhaps I could bring myself to say that
the state appellate court erred. And though this is much harder in light of the indeterminacy of the Supreme Court language and the arguability of which of the Court’s precedents is analogous, perhaps I could bring myself to join in a conclusion that the state appellate court clearly erred. But I cannot bring myself to
say that the state court was “objectively unreasonable” in its application of Andrade, Harmelin, Solem, Ewing, and Rummel.

The full opinion is here:

Judge Kleinfeld was on the panel in this case, and apparently didn't think that the AEDPA standard of review was an insurmountable barrier this time.

Posted by: | Dec 30, 2008 7:43:48 PM

For those who prefer precydent


Posted by: | Dec 30, 2008 7:45:32 PM

@ 7:43

Judge Kleinfeld did dissent in Ramirez, persuasively. He also was on the panel this time and voted to affirm. But I dont think its as "interesting" as you say. He is bound by panel opinions, including the one he dissented from in Ramirez. So another dissent would not have been following binding precedent, especially where (as you note) the cases and governing law are the same.

Posted by: Jon | Dec 30, 2008 9:04:34 PM

Doug, I have beaten this drum before but will beat it again.

I think the better approach to the scenario of a recidivist offense, like Failure to Register, triggering a three strikes enhancement is the position that Failure to Register is simply not a crime because an essential element of the "offense" is the existence of a prior conviction. Thus, in order to pass double jeopardy muster, Failure to Register is a status, not a crime. Parke v Raley. Also, if Failure to Register is a crime, it offends the rule of Brown v Ohio that a greater offense and lesser offense are the same offense for double jeopardy purposes and since the def has already been punished, by definition for the lesser offense (the prior sex offense), he can't be punished again.

So, what is Failure to Register as a Sex Offender ? I think it is akin to contempt of court, which is not a crime and to which the Sixth Amendment does not apply. A condition of the prior felony judgment was that the def register as a sex offender. He didn't do it, so he committed an act in contempt of court. The def can be punished for contempt but not for a violation of the three strikes law since there is no underlying criminal offense to trigger the three strikes law.

Thoughts anyone? Obviously, the same argument applies to Possession of Firearm by a Convicted Felon. It likewise cannot trigger application of ACCA or Three Strikes laws, in my opinion.

Bruce Cunningham

Posted by: | Dec 30, 2008 9:09:27 PM

Jon, I had that thought too, but I don't think Ramirez compels the result in this case.

I'd have to read the cases more closely, but without getting into fine distinctions about which aspects of a precedential opinion are binding and which aren't, I think that Judge Kleinfeld would have been acting properly if he chose to dissent again in this case.

As you say, though, it could be that he decided not to write separately because of Ramirez.

Bruce, you raise an interesting point, but how far does "punishing status" go? Race, gender, religion, nationality, beliefs, and medical conditions are all not morally culpable and are also either immutable or protected in some way. The fact of being a convict seems to me to be distinct from those sorts of things. Once you've been convicted of a crime, the government can say that you owe additional duties to society and that failure to comply with those duties is subject to criminal sanction.

I don't think past crimes is what is meant by "punishing status," and I don't see anything reprehensible about punishing people who fail to perform duties specially imposed on them because of their criminal history, except arguably in circumstances where the additional duties are legislated after the prior crimes are committed... but I would imagine that that sort of Landgraf/retroactivity/ex post facto argument's already been tried in court.

Then again, I'm sure that I'm not nearly as knowledgable as other regular readers of this blog are about the precedents on "punishing status" and double jeopardy.

Posted by: | Dec 30, 2008 10:03:49 PM

@ 10:03

You're right in that Ramirez was (I think) 25 for shoplifting, whereas this is 28 for failure to register. But the ratio deciendi of Ramirez is that a 25 year sentence for a minor, technical offense posing no risk of harm to any victim is AEDPA unreasonable. I think this rationale, even if not binding, applies just as much here. Therefore, I agree that Judge Kleinfeld could have dissented, based on a slight distinction. But my guess is he felt the Ramirez majority strongly counseled, if not compelled, joining.

My reading of Lockyer v. Andrade is that AEDPA reversals of 3 strikes sentences will be an empty set, should CA choose to seek cert. Nonetheless, my quick skim of the opinion in this case makes it seem sound -- both faithful to Supreme Court decisions up to this point, as well as Ramirez.

I need to read the other two AEDPA 9th Cir. affirmances the panel opinion cites, however.

Posted by: Jon | Dec 30, 2008 10:16:52 PM

Jon, there's a bit more to it than that, but I think we basically agree. In Ramirez, the prior strikes were nonviolent shoplifting offenses. In this case, the prior strikes seem to have been considerably more serious. I don't think the Supreme Court cases require that the court disregard a defendant's criminal history for Eighth Amendment purposes.

That said, I know nothing of either case beyond what I've read in the two opinions and it could be there's less difference than meet the eye. I think it's safe to say that Judge Kleinfeld could reasonably have dissented, concurred, or just joined the opinion as he did here.

It's an interesting issue, and I'll be intrigued if this case goes any further.

Posted by: | Dec 30, 2008 10:41:45 PM

Dear 10:03,

Thanks for the comments. Let me elaborate on my position, which I believe is supported by the Apprendi Rule and other venerable principles, in addition to traditional Double Jeopardy concepts.

With the exception of two words, I agree totally with your statement as follows, "Once you've been convicted of a crime, the government can say that you owe additional duties to society and that failure to comply with those duties is subject to CRIMINAL SANCTIONS." I think the last two words should say, "...INCREASED PUNISHMENT UPON COMMISSION OF ANOTHER CRIMINAL OFFENSE."

The Apprendi Rule begins "Other than a prior conviction...." In other words prior convictions are exempt from the Sixth Amendment requirement of a jury determination. I believe the reason for the exemption from the Apprendi Rule is because prior convictions cannot be used as an element of a substantivie crime. They can only be used to increase punishment for a current crime based on conviction for a prior offense. Therefore, they don't need to be found by a jury beyond a reasonable doubt, as Apprendi requires of elements.

A prior conviction is evidenced by a court judgment and is therefore afforded a presumption of regularity, with the burden of disproving placed on the defendant. That is inconsistent with the presumption of innocence, which places the burden of proof of all elements on the state.

So, to paraphrase Justice Thomas' statement of the issue in his Apprendi concurrence, the question is "simply put, whether a prior conviction can ever be an element of a crime." I think not. A prior conviction is nothing that the defendant did on the alleged date of offense. Doug correctly, in my opinion, argues that the Sixth Amendment jury trial right is informed by the offense/offender characteristic dichotomy. See Doug's article, "Conceptualizing Blakely." Being a recidivist is a characteristic of the defendant, not a characteristic of the crime. I believe the offender characteristic of being a recidivist can increase punishment, but I don't believe who or what someone is can be an element of a crime. If you think about it, that is what the Bill of Attainder clause is all about. In the US, we punish someone for what they do, not who they are.

Does this help? I've tried to set forth above various aspects of this extraordinarily complex question of "what is the nature of a prior conviction" by coming at it from directions other than double jeopardy.

Bruce Cunningham

Posted by: | Dec 30, 2008 11:15:21 PM

Bruce C,

We have plenty of crimes where failure to do something based on similar sorts of factors places someone in criminal jeopardy. Driving on an expired license as a simple example. Just because one of these requirements doesn't happen to trigger unless the person has a prior conviction I don't see that as a problem per se. I have much more trouble with this in the ex post reasoning than double jeopardy. I don't however see any problem attaching liability to offenders who commit their original offense after the requirementbecomes law.

Posted by: Soronel Haetir | Dec 31, 2008 3:03:01 AM

Soronel, you are right that the ex post facto issue associated with the "offenses" of Possession of Firearm by Felon and Failure to Register as a Sex Offender is very problematic. I am presently writing a brief to the North Carolina Court of Appeals in a case in which the Def was charged with Possession of Firearm after having been convicted of a drug offense in 1988. The problem is that the state of the law in 1988 in North Carolina was that he could get, and did get, his right to possess a gun back after five years. In fact the State issued my client several hunting licenses until the law changed, retroactively, prohibiting a person who has ever been convicted of a felony from ever possessing a gun of any kind anywhere under any circumstance. There is a case pending in the North Carolina Supreme Court, following a 2 to 1 split in the Court of Appeals, concerning whether that scenario violates the ex post facto clause because the restrictions on possessing a gun were increased after the date of the original conviction.

The case was argued on May 5 and there is still no decision, which suggests to me that the 7 members of the Supreme Court are split. Doug has been constantly arguing that Heller's impact on Felon in Possession cases may be more nuanced than Justice Scalia, and most other folks, have been suggesting. In addition to the ex post facto claim, I am arguing a Heller claim surrounding possessing an antique shotgun in one's bedroom in a locked gun cabinet after the defendant's mother asked the def to store , "keep", the gun to prevent her husband from shooting himself.

But, I'm saying the ex post facto implication of Failure to Register as a Sex Offender is a totally different issue than the question of whether a prior conviction can be an element of a substantive crime.

Have you ever tried a case of Possession of Firearm by a Felon in front of a jury? If not, I can assure that such a trial turns traditional notions of evidence and burden of proof on their heads. For example, it is basic evidentiary law that the State may not introduce evidence of a prior conviction against a def unless the def testifies. That notion is out the window when trying Felon in Possession charges.

What I am seeing more often now than 30 years ago is prosecutors charging someone with Felon in Possession in addition to murder, then joining the two "offenses" for trial simply to place in front of the jury at the guilt phase that the def has a prior felony conviction.

Let me pose a question to you. Do you accept the notion that a prior conviction may not be collaterally challenged and the burden of proving a prior conviction is invalid is upon the defendant? (when I say a challenge may not be collateral I mean that a person must challenge the conviction by filing a motion to set aside the conviction in the original court and file number of the earlier conviction, not in some other proceeding) The reason for the rule prohibiting collateral challenge is because court records are presumed regular. There are also Full Faith and Credit issues for out of state prior convictions. I do not see how the rule prohibiting collateral challenges to prior convictions can be reconciled with the presumption of innocence and the burden of proof on the state with respect to all elements of a crime.

I'll post a link to US v Cheek out of the Fourth Circuit about three years ago which listed 4 reasons, in addition to double jeopardy, why prior convictions are not elements of crime and therefore don't have to be included in indictments. However, the Fourth Circuit failed to probe the implications of their decision, against a defendant challenging an indictment, on the question of double jeopardy when a prior conviction is an essential element of a later offense.

As a practitioner, the bootstrapping practice of piling on prior conviction on top of prior conviction to turn a misdemeanor into a felony or enhance punishment into the stratosphere is a constant issue.

Thank you for your comments on the ex post facto wrinkle but that is an issue which "ages out" compared to the double jeopardy implications of using a prior conviction as an element of a new crime. Also your example of punishing folks for Driving While Revoked is, in my opinion, not germane. (I assume you meant to say revoked rather than expired) Driving is a privilege granted by the state, rather than the presumption of innocence surrounding a criminal charge, which is an inalienable right.

Bruce Cunningham

Posted by: | Dec 31, 2008 5:45:02 AM

Interesting discussion. Regarding ex post facto, failure to register has only been a felony in California for a few years. Now, I believe, it is still only a felony if the underlying registrable offense was a felony. Since the registration requirements are in the Penal Code, and since California argues for so severe a sentence for failure to register, and coupled with other added collateral consequences that go well beyond mere notice to the public of the fact of conviction, how can registration still be civil rather than punitive? In other words, that it is a felony so severely punished is ex post facto. Doesn't the California AG concede this punitive, not regulatory, distinction by arguing for the 28 years?

Posted by: | Dec 31, 2008 9:32:49 AM

Bruce C,

No I very much intended to say expired. The cases of revoked is different in that the state has taken some active step to remove the driving priviledge. Expiration turns the driver into a criminal for their failure to act (turning the renewal forms). I would simply disagree that prior convictions aren't part of the new offense, however because courts treat court records as something that don't need to be proved, they are assumed valid that part of the offense need not be placed in front of the jury.

Do I like it? Not especially. Do I believe it passes constitutional muster? Unfortunately yes.

Posted by: Soronel Haetir | Dec 31, 2008 10:01:52 AM

The 9th Circuit was hardly out of bounds for following a California court's interpretation of a California law.

This may be largely a one off ruling, however. Very few states have three strikes laws that are as severe as California. Many states either require that the predicate offenses be serious felonies rather than merely any felonies; many states require more serious offenses in order to cause a strike to be counted (California counts misdemeanors as felonies for habitual offenders in some cases resulting in multiple habitual offense enhancements in one case), and many states simply increase sentencing ranges in habitual cases rather than jumping immediately to a long life sentence.

Also, a legislature could evade the 8th Amendment analysis by imposing a life sentence with a lifetime parole period, resulting in no new offense when parole is violated for a technical violation, rather than treating failing to register as a new and separate offense.

Posted by: ohwilleke | Dec 31, 2008 2:52:47 PM

prior convictions cannot be used as an element of a substantivie crime.

Sure they can. In Texas, a two prior DWI convictions is an element of felony DWI 3rd (or more). It's not a sentence enhamcement, it's an actual element of the offense of felony DWI. (1st and 2nd DWI are both misdemeanors).

Posted by: BruceM | Jan 1, 2009 6:05:37 AM

Bruce M, North Carolina has the same recidivist DWI statute called "Habitual DWI" in which the legislature says that if the def commits a misdemeanor of DWI and has two prior DWIs that it "becomes" a felony and is sentenced on the felony grid.

I don't have a problem with enhanced punishment for a DWI committed after being convicted twice of DWI. I have a problem with saying it is a new substantive felony, which can then be used to trigger additional sentence enhancement pursuant to the Habitual Felon Act, or a three strikes law. Because if it is a new felony, then a prior conviction is an essential element of the new crime and the def has already been punished for the two prior DWIs, so he can't be punished for the new crime of which the two convictions are essential elements. Brown v Ohio.

Your statement "Sure they can" seems to me to ignore the revolution that Apprendi has ushered in, which is actually just a reversion to the concepts of Marbury v Madison that just because the legislature does something doesn't mean it is constitutional. And only the Supreme Court , not the legislature, decides what is constitutional. We had gotten away from that notion a bit in McMillan v Penn.when the legislature said a use of a gun during a crime is not an element, it is a sentencing enhancement.

In my opinion, the significance of Apprendi/Ring/Blakely/Cunningham is that they make it clear that it doesn't make a difference what the legislature says something is. If it acts like an element it is an element, regardless of whether it is called a sentencing factor, an element or "Mary Jane" (Scalia in Ring)

So, in my opinion, the Texas and NC legislature has enacted a "hybrid" statute when they created Habitual DWI. It is a statute which defines a core misdemeanor offense and then within the same statute provides for enhanced punishment based on recidivism. I don't object to the increased punishment, I object to then using the hybrid offense as a felony to trigger additional punishment.

Bruce, saying the legislature has done something does not mean that what they have done is constitutional.

Bruce Cunningham

Posted by: | Jan 1, 2009 11:41:05 AM

Bruce M,

If SCOTUS ever takes such a case I expect they'll uphold the ability of the legislature to define such crimes. Just like abuse of trust crimes, where an element of the offense is first having a position of trust. The offender is not being punished again for the old crime, they are exposed to much more substantial penalties because they committed another crime. An offender does not have to approach the court from a zero position for every new charge, though certain guarantees are made. I just don't see the one you are advocating as one of them.

Posted by: Soronel Haetir | Jan 1, 2009 1:13:43 PM

To do so the Court would have to overrule 200 years of jurisprudence that recidivism offenses, like state Habitual felon laws, survive double jeopardy muster because they describe a status, not a substantive crime. Parke v Raley.
Look at Breyer's comment in I think it is Almendarez Torres that "recidivism is perhaps the most traditional sentence enhancer"

Habitual DWI is , by definition, a recidivist offense because an essential component of the offense is the existence of a prior conviction.

The distinction between what Bruce M and I have been talking about and the position of trust notion is that the defendant being in a position of trust is a characteristic of the crime more than a characteristic of a particular offender. It makes no difference who the bank teller is when the teller takes money, elevating the crime from larceny to embezzlement. The second distinction is that, unlike prior convictions, the def has not been previously punished for being in a position of trust.

bruce cunningham

Posted by: | Jan 1, 2009 1:39:42 PM

Bruce C: I agree with your sentiments regarding the structure of the Texas and NC DWI statutes. Of course the Texas courts have upheld it under apprendi-based challenges and I assume the NC courts have too.

That being said, in Texas at least, the prosecutor must prove beyond a reasonable doubt (something the defendant typically stipulates to prevent the jury from hearing all the details) the prior 2 DWI convictions to prove up that element of Felony DWI. So it's not like the person is convicted of DWI, then at sentencing a judge decides by some standard of proof less than BARD that two prior DWI convictions existed at the time the current DWI offense took place. That's why it has survived apprendi-based challenges. The prior DWI convictions are literally elements of the offense which must be proved to the jury beyond a reasonable doubt. Of course that creates all sorts of other problems.

For example, if you have Westlaw or Lexis (I assume you do), check out the Texas Court of Criminal Appeals' asinine decision in Lomax v. State regarding felony murder charges for felony DWI (a case on which I was co counsel for Lomax so I'm quite biased with respect to the CCA's split decision in favor of the state).

Posted by: BruceM | Jan 1, 2009 5:43:59 PM

BruceM, I'll look at Lomax. The assine split decision of the NC Court of Appeals is State v Vardiman. The NC Supreme Court was barred from reviewing the decision due to a procedural quirk because the case came up on post conviction review rather than direct appeal. I worked with the lawyer in Vardiman and am continuing to challenge the ridiculous decision.

As I've said, I have no problem with the legislature increasing punishment due to recidivism. I have a problem with increasing the crime due to recidivism.

In Vardiman the Defendant was caught in a catch 22. He was convicted of Habitual DWI and then the sentence was enhanced under the Habitual felon law. When Vardiman argued that Habitual DWI violated double jeopardy because a prior conviction was an element, the opinion said Habitual DWI was a sentence enhancer not a substantive crime. When Vardiman argued that the crime with the enhanced sentence was a misdemeanor not a felony, so it couldn't trigger habitual felon punishment, the opinion says Habitual DWI is a substantive felony.

Mindbogglingly frustrating. Judge Greene got it right in dissent, saying that double jeopardy renders the law unconstitutional because a prior conviction, for which the def has already been punished, is an essential component of the greater offense and therefore the def can't be punished for both offenses. I'vde gotten another trial judge to agree with me in principle but then said his hands were tied to give relief due to Vardiman. The appeals courts have ducked the issue and refused to address the merits.

Thanks for telling me about Lomax.


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Posted by: Driewsweizige | Apr 2, 2009 12:15:44 PM

Mr. Cunningham, I am not an attorney nor do I have any type of formal training in Law, I'm hoping you might be able to answer a few questions for me as far as finding Failure to Register as a stand alone Felony Crime in the State of Colorado. My husband is a Registered Sex Offender as of 1996 in the State of NY, and we have been through literal HELL in Colorado. These guys went and listed him as a SVP, making it virtually impossible to reside anywhere ( Shelters, hotels, etc..) we've been homeless due to these guys ( and I use that term lightly). The fact is my husband has not reinacted any crime other than being homeless , having ESRD ( kidney Failure-which requires dialysis)and not having a permanent residence. Anyways, why do states change the classification labeling on an Offender without notifying him of such - especially if the crime was in another state and over 10 yrs ago. Secondly did Colorado currently adopt the AWA Sorna regulations? I am unable to find any info on the internet here, I did find a Supreme Court Case in Virgina that reversed and dismissed 4 cases of Failure to Register under the "Pre Sorna" Act once AWA took hold on July 27,1996. There was 2 clauses in this ACT that stated that Congress gave the Attorney General the power to basically decide what rules apply to Initial registration of the Pre Sorna guys who were convicted prior to this ACT. At that time, I believe that it took Approx 7 months before the Attorney General put into law how Pre-Sorna Offenders would need to be dealt with. These guys used this and won - due to there original charge occurred in another state, they all had completed their time prior to AWA, and moved to another state and all received Failur To Register Charges prior to the enactment of the Attorney Generals decision on what to do with Pre-Sorna Offenders. Now, does Federal Law take precedence over the State Laws, how do I fight the fact that my husband did not "Commit an Act", we failed to register due to No Address, and he was in the hospital. Any suggestions besides prayer, and that his Public Defender is actually fighting for him and not against him. He's already been harrassed and threatened by Police Personnel in the Medical Ward in Arapahoe County, CO Thank You

Posted by: Christine Metrose | Apr 23, 2009 4:49:55 PM

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