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June 13, 2011

Three new criminal justice cert grants from SCOTUS

Thanks to the terrifically helpful live-blogging by the SCOTUSblog folks, I can provide this super-quick review of the three new cases involving criminal justice issues taken up today by the Justices:

Gonzalez v. Thaler, limited to following question: was there jurisdiction to issue a COA and adjudicate petitioner's appeal; was the application for a writ of habeas corpus out of time due to the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;

Setser v. United States, [asking:] Does a District Court have the authority to order a federal sentence to run consecutive to an anticipated but not imposed state sentence? Is it reasonable for a district court to provide inconsistent instructions on how federal and state sentences interact?;

Smith v. Louisiana, the question involves cumulative error claims [in a capital case]. It seems fairly fact-bound.

Though one never knows how cases will evolve through briefing, argument and ruling, I doubt that any of these three new SCOTUS cases will be blockbusters. All three appear to deal with relatively narrow procedural issues arising in only a very limited set of cases.

June 13, 2011 at 10:19 AM | Permalink


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Of note today was SCOTUS vacating and remanding several 9th circus habeas cases in light of Swarthout v. Cooke, 562 U.S. ___ (2011) (per curiam). At issue is the granting of several writs and the "some evidence" standard. Reinhardt had his hand in several of the cases. The 9th cases are: Pirtle (07-16097), Sneed (07-15051), Slater (09-17784), and Johnson. Most were unpublished decisions if you go looking...

Posted by: DeanO | Jun 13, 2011 12:37:50 PM

Setser could actually be fairly major. It's common practice in my jurisdiction (NY) to delay sentencing on state charges until after the Federal sentence, because the state judge has authority to make the sentences concurrent but the Federal judge doesn't. In fact, where a defendant faces both state and Federal charges, it's often part of the state plea bargain that the state sentencing will take place last.

Posted by: Jonathan Edelstein | Jun 13, 2011 4:43:43 PM

Well, Jonathan, the New york State judge may have the authority to "order" the state sentence to run concurrently to a yet to be imposed federal sentence, but that's irrelevant if the state has primary custody of the defendant. In that circumstance, the defendant MUST do his time first in a NY State institution, and the BOP will CONSIDER the state judge's recommendation after they receive the inmate for service of federal sentence. At that point, the opinion/input of the federal judge carries MUCH more weight than the non- controlling prnonouncement of the state court judge.

Posted by: anon | Jun 13, 2011 9:35:37 PM

The NY state judge does not order the state sentence to run concurrently to "a yet to be imposed federal sentence" -- he or she will order it to run concurrent to an already-imposed federal sentence for which the defendant is already in federal custody. That's why it's so important in NY to get the federal sentence done first -- the state judge can give the defendant credit against federal time, but not vice versa. If the state sentencing happens first, then as you say, the sentences will run consecutively, with the defendant beginning his federal time only after serving all his state time.

If Setser is decided in the Government's favor, then the order of sentencing will no longer matter, and the federal judge can (if he has a mind to) pre-emptively nullify any deal made with the state authorities.

Posted by: Jonathan Edelstein | Jun 14, 2011 9:16:09 AM


"the federal judge can (if he has a mind to) pre-emptively nullify any deal made with the state authorities."

All the more reason for any and all defendants to say NO DEALS! SEE YOU IN COURT!

once the govt has to spend another $100,000,000,000,000

for more court rooms

more judges

more juries

more staff

some of this criminal stupidity might just stop!

Posted by: rodsmith | Jun 14, 2011 12:00:20 PM

Jonathan, you're still only half (or perhaps 3/4) right. If the defendant is in PRIMARY state custody (i.e., the state arrested him first, and the feds got him via writ), then the order in which the sentences are imposed is irrelevant. Even if the federal court imposes its sentence first, the stae MUST house the inmate for the duration of his state sentence regardless of the state judge's "Order" for concurrency. Then, when the inmate goes to the BOP, they will make a determination (after seeking input from the federal judge) on whether ANY of the state time should apply against the federal sentence.

Posted by: anon | Jun 14, 2011 6:46:46 PM

personaly i think double prosecution by both the state AND fed for the what is basically the same 5-10 min's of criminal stupidity.

ILLEGAL and unconstutional. it's clearly double jeopardy!

so the rest is moot!

Posted by: rodsmith | Jun 15, 2011 1:09:06 AM

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