April 9th, in United States v. Grant, No. 16-3820, the Third Circuit extended the holding in Miller v. Alabama, 567 U.S. 460 (2012) (holding that only incorrigible juvenile homicide offenders who have no capacity to reform may be sentenced to life in prison without the possibility of parole; otherwise, a non-incorrigible juvenile offender must have a “meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation”) to de facto life sentences – that is, a sentence (in years) that meets or exceeds the life expectancy of a juvenile offender. In this case, the sentence was for 65 years, which might make him eligible for release no earlier than at age 72. The court characterized its holding as an “incremental step in the constitutional discourse over the unique protections that the Eighth Amendment affords to juvenile homicide offenders.” The court noted that its holding has been adopted by the Seventh, Ninth, and Tenth Circuits, but acknowledged a contrary holding from the Eighth Circuit.
This past Monday, the Supreme Court granted certiorari in Stokeling v. United States, No. 17-5554. The question presented is: “Whether a state robbery offense that includes ‘as an element’ the common law requirement of overcoming ‘victim resistance’ is categorically a ‘violent felony’ under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(i), when the offense has been specifically interpreted by state appellate courts to require only slight force to overcome resistance.”
The circuits are in conflict on whether “overcoming resistance” in robbery statutes categorically requires “violent force.” The Tenth and Eleventh Circuits have held that two different common law robbery offense offenses, both of which require overcoming “victim resistance,” categorically require violence force, that is, “force capable of causing physical pain or injury to another person,” which is “a substantial degree of force;” the word “violent” connotes “strong physical force.”
In contrast, the Fourth and Ninth Circuits have held that similar offenses (and in the case of the Ninth Circuit, the exact same robbery offense as addressed by the Eleventh Circuit) do not categorically require violent force.
In Ayestas v. Davis, No. 16-6795 (Mar. 21, 2018), the United States Supreme Court unanimously held the Fifth Circuit did not apply the correct legal standard in affirming the denial of a capital habeas petitioner’s request for funds, made pursuant to 18 U.S.C. § 3599(f), to investigate a trial-counsel and initial-state-habeas counsel ineffective assistance of counsel claim.
Ayestas was convicted of murder and sentenced to death in Texas state court. New counsel filed Ayestas’s direct appeal, which was affirmed. A third defense team unsuccessfully pursued state habeas relief, including raising a claim of trial-level ineffective assistance of counsel (IAC), but did not raise a claim that trial-level counsel was ineffective for failing to investigate and present Ayestas’s mental health and drug abuse history at the penalty phase. After Ayestas’s state habeas was denied, a fourth legal team filed a federal petition which did raise the trial-level IAC claim about failure to investigate mental health at penalty phase. The district court held the claim was procedurally barred because it was not raised in state court. That decision was later vacated by the Supreme Court and remanded for reconsideration in light of Martinez v. Ryan, 556 U.S. 1 ( ) (holding that an Arizona prisoner seeking federal habeas relief could overcome a procedural default of a trial-level IAC claim by showing that the claim is substantial and that the state habeas counsel was also ineffective in failing to raise the claim in a state habeas proceeding); see also Trevino v. .Thaler, (applying Martinez to Texas).
On remand, Ayestas filed a motion asking the district court for funding under 18 U.S.C. § 3599(f) to develop his claim that both his trial and his state habeas counsel were ineffective. Section 3599(f) provides, in relevant part, that a district court “may authorize” funding for “investigative, expert, or other services … reasonably necessary for the representation of the defendant” in capital habeas cases. (emphasis added). The district court found his claim barred by procedural default. The Fifth Circuit also rejected the funding request under its precedent, holding that Ayestas had not shown a “substantial need” for investigative or other services.
In an opinion written by Justice Alito, the Supreme Court addressed a threshold jurisdictional issue and held that the district court’s denial of Ayestas’s funding request was a judicial decision subject to appellate review under the standard jurisdictional provisions. In so holding, the Court rejected the state’s argument that the funding decision was unreviewable because it was non-adversarial and merely administrative.
On the merits, the Court held the Fifth Circuit did not apply the correct legal standard in affirming the denial of Ayestas’s funding request. The Court held the Fifth Circuit’s “substantial need” standard was more demanding than “reasonably necessary.” What’s more, the “substantial need” standard exacerbated the difference by also requiring Ayesta to present “a viable constitutional claim that is not procedurally barred.” The Court explained that rule is too restrictive after Trevino. While the Court recognized that district courts have broad discretion in deciding funding requests, it stated: “In those cases in which funding stands a credible chance of enabling a habeas petitioner to overcome the obstacle of procedural default, it may be error for a district court to refuse funding.” The Court provided further guidance to district courts exercising their funding discretion:
Proper application of the “reasonably necessary” standard thus requires courts to consider the potential merit of the claims that the applicant wants to pursue, the likelihood that the services will generate useful and admissible evidence, and the prospect that the applicant will be able to clear any procedural hurdles standing in the way.
To be clear, a funding applicant must not be expected to prove that he will be able to win relief if given the services he seeks. But the “reasonably necessary” test requires an assessment of the likely utility of the services requested, and § 3599(f) cannot be read to guarantee that an applicant will have enough money to turn over every stone.
The Court also rejected the state’s alternative ground for affirmance—that funding is never “reasonably necessary” where a habeas petitioner seeks to present a procedurally defaulted ineffective-assistance-of-trial-counsel claim that depends on facts outside the state-court record, see U.S.C. § 2254(e)(2) —remains open for the Fifth Circuit to consider on remand.
In an important procedural aside, the Supreme Court noted that the Fifth Circuit does not require petitioners to obtain a certificate of appealability (COA) to appeal a district court’s funding determination. The COA issue was not briefed by parties and the Court found it “unnecessary to resolve the issue.” But taking “no view” of the COA issue, the Court “assume[d] for the sake of argument that the Court of Appeals could not entertain petitioner’s §3599 claim without the issuance of a COA.” The Court also noted the district court’s ruling was “not only debatable; it was erroneous.”
In Justice Sotomayor’s lentghty concurrence, joined by Justice Ginsburg, she explains that “Ayestas has made a strong showing that he is entitled to § 3559(f) funding.” About a district court’s discretion in funding determinations, Justice Sotomayor explained:
Exercise of that discretion may be appropriate if there is a showing of gamesmanship or where the State has provided funding for the same investigation services, as Ayestas conceded at argument. Nonetheless, the troubling failures of counsel at both the trial and state postconviction stages of Ayestas’ case are exactly the types of facts that should prompt courts to afford investigatory services to ensure that trial errors that go to a “bedrock principle in our justice system” do not go unaddressed.
The American Sentinel Newsletter
On March 21, United States Attorney General Jefferson B. Sessions issued a short Memo to U.S. Attorneys on the Use of Capital Punishment in Drug-Related Prosecutions. The full text of the memo states:
The opioid epidemic has inflicted an unprecedented toll of addiction, suffering, and death on communities throughout our nation. Drug overdoses, including overdoses caused by the lethal substance fentanyl and its analogues, killed more than 64,000 Americans in 2016 and now rank as the leading cause of death for Americans under 50. In the face of all of this death, we cannot continue with business as usual.
Drug traffickers, transnational criminal organizations, and violent street gangs all contribute substantially to this scourge. To combat this deadly epidemic, federal prosecutors must consider every lawful tool at their disposal. This includes designating an opioid coordinator in every district, fully utilizing the data analysis of the Opioid Fraud and Abuse Detection Unit, as well as using criminal and civil remedies available under federal law to hold opioid manufacturers and distributors accountable for unlawful practices.
In addition, this should also include the pursuit of capital punishment in appropriate cases. Congress has passed several statutes that provide the Department with the ability to seek capital punishment for certain drug-related crimes. Among these are statutes that punish certain racketeering activities (18 U.S.C. § 1959); the use of a firearm resulting in death during a drug trafficking crime (18 U.S.C. § 924(j)); murder in furtherance of a continuing criminal enterprise (21 U.S.C. § 848(e)); and dealing in extremely large quantities of drugs (18 U.S.C. § 3591(b)(1)). I strongly encourage federal prosecutors to use these statutes, when appropriate, to aid in our continuing fight against drug trafficking and the destruction it causes in our nation.
Seeking the federal death penalty against drug traffickers in “appropriate cases” where a death results would not be new. Of the 61 federal defendants on death row, more than a dozen of them committed drug related offenses resulting in death, according to the Death Penalty Information Center. Indeed, one of the three federal inmates executed in the modern era was Juan Garza, a marijuana distributer who was executed in 2001 for the murder of three other drug traffickers in Texas.
But seeking the death penalty for non-homicide drug trafficking offenses would be new and raise constitutional issues. See, e.g., Kennedy v. Louisiana, 554 U.S. 407, as modified (Oct. 1, 2008), opinion modified on denial of reh’g, 554 U.S. 945 (2008) (holding the Eighth Amendment prohibits the death penalty for the rape of a child where the crime did not result, and was not intended to result, in death of the victim); id. at 44 –47 (“The rule of evolving standards of decency with specific marks on the way to full progress and mature judgment means that resort to the penalty must be reserved for the worst of crimes and limited in its instances of application. In most cases justice is not better served by terminating the life of the perpetrator rather than confining him and preserving the possibility that he and the system will find ways to allow him to understand the enormity of his offense. Difficulties in administering the penalty to ensure against its arbitrary and capricious application require adherence to a rule reserving its use, at this stage of evolving standards and in cases of crimes against individuals, for crimes that take the life of the victim.”).
Section 7212(a) of the Internal Revenue Code makes it a felony “corruptly or by force” to “endeavo[r] to obstruct or imped[e] the due administration of this title.” 26 U.S.C. § 7212(a). The question the Supreme Court faced was the “breadth of that statutory phrase.” Specifically, does the due administration of the Tax Code cover all routine administrative procedures, such as the ordinary processing of income tax returns? Or, does the phrase refer “to specific interference with targeted governmental tax-related proceedings, such as a particular investigation or audit[?]”
In a 7-2 decision in Marinello v. United States, No. 16-1144, the Supreme Court held to convict a defendant under § 7212(a), the federal government must prove the defendant was aware of a pending tax-related proceeding, such as a particular investigation or audit, or could reasonably foresee that such a proceeding would commence.