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December 24, 2017

Noting some notable SCOTUS petitions

Via How Appealing, I noticed these two notable stories about notable certiorari petitions on notable sentencing issues.  The first linked story concerns a petition in a capital case that has been widely discussed, but that I doubt will be granted; the second linked story concerns a petition in a non-capital juve case that raises an issue that has been festering in lower courts ever since the Supreme Court's Graham ruling in 2010:

December 24, 2017 at 04:04 PM | Permalink


The court already has two cases set for the first conference of the new year on the second issue. In the one case, the state opted not to file a response but then the court requested one. Ali v. Minnesota, 17-5578

Posted by: John | Dec 24, 2017 4:42:20 PM

Thanks, John. I think it only a matter of time before SCOTUS takes this up. How much time......?

Posted by: Doug B | Dec 24, 2017 5:15:28 PM

The Missouri case is highly unlikely. The story in the local newspaper omits several key details to make it seem that the petition has a chance. The two most significant are:

1)The Missouri Supreme Court summarily denied the writ of habeas corpus without explanation (as apparently did the lower courts). While it is not unheard of for the U.S. Supreme Court to grant cert in such cases, it is less likely because there could be non-merit reasons for the denial.

2) About a month before the Missouri Supreme Court denied Bostic's petition, the Missouri Supreme Court issued an opinion on this issue in another case. The U.S. Supreme Court earlier this term denied cert on that other case. Again, while it's not entirely unheard of for the Supreme Court to deny cert in one case on an issue and then take another case that poses the issue better, it seems that the earlier case -- having a published opinion -- would have been a better "vehicle" than Bostic's case.

In short, Bostic's case is one that the paper appears to have been following as a local interest case, but the story is misleading to the extent that it makes it sound like the Supreme Court is likely to hear the case on the merits.

Posted by: tmm | Dec 25, 2017 10:00:56 AM

I Does anyone understand why this is going to the Supreme Court directly rather than through the federal court system first? I agree with tmm that the lack of opninions is a problem. Wonder if they could kick it to federal court level to develop the facts and issue an opinion in light of Graham,

Posted by: Sn | Dec 25, 2017 11:14:08 AM

Would AEDPA's requirements of contrary to or unreasonable application of clearly established federal law as defined by SCOTUS prevent the court from issuing a de novo judgement on the law here should certiorari be granted? If so, seems like a really poor vehicle.

Posted by: Jacob Berlove | Dec 25, 2017 3:14:00 PM

Jacob, the fact that AEDPA produces another layer of issues for these kinds of Graham claims could provide a reason for SCOTUS to be more eager to take up a case on direct appeal. But they have dodged this issue already for a number of years, so it is hard to know what the Court is thinking about importance/vehicle.

Posted by: Doug B. | Dec 25, 2017 5:14:06 PM

SN, while a federal habeas petition is a possibility, a party who loses in the state's highest court can go directly to the U.S. Supreme Court. Other than the cost of filing (and here the inmate is proceeding in forma pauperis with volunteer counsel), an inmate loses nothing by seeking review directly. He can still seek cert a second time if he loses on his habeas petition.

Additionally, habeas petitions would run into several problems not present in the current case. The first issue would be timeliness -- when did this claim become ripe (when Graham was decided or when Montgomery was decided). The second issue would be interpreting the summary denial (an issue sort of currently in front of Supreme Court, although this case is closer to Harrington than the one argued earlier this term). The third issue would be AEDPA deference -- the fact that there is no U.S. Supreme Court decision on de facto lwop. Of course, after Montgomery, the last two might not be an issue. In short, Bostic's chances on habeas are not necessarily significantly better than his chances on direct appeal and might be worse.

From Bostic's point of view, the petition makes sense. He is proceeding in forma pauperis with volunteer counsel. So filing for cert gives him a chance (albeit not a good chance) at getting review now.

Posted by: tmm | Dec 25, 2017 9:37:33 PM

Doug, thanks for making us aware of the Bostic petition. I am interested for two reasons. I have a number of post-conviction Eighth Amendment claims that I am litigating and the stacking of sentences to create a functional life without parole sentence is a constant problem.

Second, while it is not totally clear in the Bostic cert petition, it appears that the judge was informed that Bostic rejected the thirty year plea offer that the co-defendant took. Before imposing the consecutive sentences totaling 241 years, the Judge told Bostic, "You are the biggest fool who has ever stood in front of the Court. You made your choice, you're going to have to live with your choice. You're gonna die with your choice because you will die in the Dept. of Corrections."

On January 10, I am arguing in the NC Court of Appeals that it violates Due Process for a prosecutor to inform the trial judge, who later imposed sentence, that my client turned down a twenty year plea offer. Ultimately, a sixty year minimum sentence was imposed.

My argument is that informing a judge pretrial of what sentence was rejected automatically establishes a "floor" below which no judge would consider imposing sentence.

Ever since Lafler v Cooper and Missouri v Frye were decided, prosecutors, judges, and sometimes even defense lawyers are putting on the record in open court, before the judge, what plea offer was rejected by the defendant.

That practice may prevent future motions of ineffective assistance of counsel, but I think it also prejudices the defendant at sentencing in the event of a conviction at trial.

Happy New Years, Doug. Keep up the good work of informing us of timely sentencing issues.


Posted by: bruce cunningham | Dec 26, 2017 12:04:34 PM


In my experience it is the defense that informs the court of the government's prior plea offers and uses the number to establish a ceiling. They will argue that the government has committed to a number that fairly reflects the defendant's conduct and that no more time is necessary. They will then argue their mitigators. In my experience, the reason the defense does this is because it works.

Obviously the culture where I practice may be very different than yours. I will be fascinated to see if the Due Process argument you are making prevails.

Posted by: David | Dec 26, 2017 2:42:53 PM

David, do you practice in federal court or state court? Our climate is definitely much different in North Carolina state court.

I can send you transcript excerpts with statements from judges like "The State offered you a sweetheart deal, and you rolled the dice and lost. Now you expect me to give you the same thing?

Or, "You should have bailed out on Monday. I could see what was going to happen as clear as day, but you couldn't. I almost begged you to take the plea, but you didn't. Sad commentary on you."


Posted by: bruce cunningham | Dec 26, 2017 4:33:57 PM


I am a prosecutor state court in the Bay Area of California. I never doubted your representation on the matter, no need to send transcripts.

Just goes to show that culture has a big impact on criminal justice outcomes.

Posted by: Eric | Dec 26, 2017 5:14:22 PM

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