« Basic mandatory juve LWOP head-count in light of Miller | Main | "Crime, Punishment, and the Psychology of Self-Control" »

June 25, 2012

SCOTUS grants cert to clarify when an error qualifies as "plain"

As reported here at SCOTUSblog, among the copious cert grants was a single federal criminal procedure case which will resolve a circuit split on when an error is qualifies as "plain" for federal appellate review.  Here are the details with link via SCOTUSblog:

Henderson v. U.S. (Granted )

Docket: 11-9307
Issue(s): Whether, when the governing law is unsettled at the time of trial but settled in the defendant’s favor by the time of appeal, an appellate court reviewing for “plain error” should apply Johnson v. United States’s time-of-appeal standard, as the First, Second, Sixth, Tenth, and Eleventh Circuits do, or should apply the Ninth Circuit’s time-of-trial standard, which the D.C. Circuit and the panel below have adopted.

Certiorari stage documents:

June 25, 2012 at 11:37 PM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference SCOTUS grants cert to clarify when an error qualifies as "plain":


That is interesting. The Question Presented in the certiorari petition provides more information on the split. Prior to see this post, I would have guessed that all the circuits follow the approach of the First, Second, Sixth, Tenth and Eleventh Circuits after Johnson and Olano.
Also, I noticed that the directors of the University of Texas Supreme Court Clinic are part of the team that sought certiorari. I wonder how much it increases the odds of a certiorari grant if you have a clinic on board?

Posted by: Tim Holloway | Jun 26, 2012 8:26:58 AM

This will be a big deal after Hill and Dorsey, if the Court goes with time-of-trial.

Posted by: Mark Pickrell | Jun 26, 2012 9:46:45 AM

hmm more funny to me. This bunch of incopetents wouldnt' know PLAIN if it walked up and slapped them in the face!

Posted by: rodsmith | Jun 26, 2012 9:58:29 AM

"This will be a big deal after Hill and Dorsey, if the Court goes with time-of-trial."

What attorney wouldn't have preserved the Hill/Dorsey issue? He/she would have to be a buffoon to miss that issue.

Posted by: anon | Jun 26, 2012 2:28:34 PM

Okay, I guess there's a split, but I think there are plenty more important issues to address than this one. Like the split as to whether district courts have to address the principle/non-frivolous arguments for lower prison terms as in (I think the case is called_ Rubashkin(?) the Iowa case.. . .

Posted by: David | Jun 26, 2012 5:45:25 PM

Do you believe that Justice Kagan's opinion in "Miller" stating, "....our cases requirement of individualized sentencing for defendants facing the most serious penalties" could (should) be applied to a 18 USC 924(c) case that involved a LWOP sentence of 213 years.

Posted by: Adam Clausen | Jun 26, 2012 9:04:10 PM

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