Tag Archives: Supreme Court

Supreme Court Unanimously Vacates Fifth Circuit Decision Denying Capital Petitioner’s Funding Request

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.”

Sotomayor Concurrence

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.

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Attorney General Sessions Tells Prosecutors To Kill Drug Dealers

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.”).

SCOTUS Holds That Defendant Must Be Aware Of A Particular Investigation Or Audit To Be Convicted Under 26 U.S.C. § 7212(a)

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.

Four Justices Question The Constitutionality of Arizona’s Death Penalty Scheme

Today the United States Supreme Court denied certiorari review in Hidalgo v. Arizona, No. 17-251. Hidalgo asked the court to consider two important Eighth Amendment questions: (1) Whether Arizona’s capital sentencing scheme, which includes so many aggravating circumstances that virtually every defendant convicted of first-degree murder is eligible for death, violates the Eighth Amendment; and (2) whether the death penalty in and of itself violates the Eighth Amendment, in light of contemporary standards of decency.

The case was distributed for conference ten times before certiorari was denied.  Justice Breyer, joined by Justices Ginsburg, Sotomayor and Kagan, issued a strong statement respecting the denial of certiorari as to the firstquestion presented—whether Arizona’s statutory sentencing scheme satisfies the Eighth Amendment’s “narrowing requirement” for determining who is “eligible” for the death penalty. The justices did not comment about the second and broader question about whether the death penalty in all cases violates the Eighth Amendment.

It is well-settled, “[t]o pass constitutional muster, a capital sentencing scheme must ‘genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder.’” Lowenfield v. Phelps, 484 U. S. 231, 244 (1988) (quoting Zant v. Stephens, 462 U. S. 862, 877 (1983)).  As Justice Breyer explains in Hidalgo, “[t]o satisfy the ‘narrowing requirement,” a state legislature  must adopt ‘statutory factors which determine death eligibility’ and thereby “limit the class of murders to which the death penalty may be applied.”  (quotation marks omitted). Hidalgo’s certiorari petition argued that Arizona’s scheme “utterly fails to do that” because “[t]he number of statutory aggravators has proliferated such that ‘virtually every person—around 99%—convicted of first-degree murder is eligible for the death penalty.” The Arizona trial court denied Hidalgo’s request for an evidentiary hearing to “establish through witnesses, expert testimony, and documentary evidence that [Arizona’s] statutory aggravating circumstances … apply to virtually every first-degree murder case in the State.”

The Arizona Supreme Court affirmed the trial court but did not dispute Hidalgo’s evidence.  “Despite assuming that the aggravating circumstances fail to materially narrow the class of death-eligible first-degree murder defendants, the Arizona Supreme Court nevertheless concluded that the State’s death penalty system meets the Constitution’s narrowing requirement.  It said that the petitioner was ‘mistaken … insofar as he focuses only on the legislatively defined aggravating circumstances’ because use of those circumstances ‘is not the only way in which Arizona’s sentencing scheme narrows the class of persons eligible for the death penalty.’” The Arizona Supreme Court identified five factors not related to the legislative definition of aggravating circumstances.

Justice Breyer’s opinion examines and rejects all five factors as either previously having been rejected by Supreme Court precedent or not showing “the necessary legislative narrowing that [its] precedent requires.”  For example, with respect to the Arizona Supreme Court’s reliance on prosecutorial discretion to perform the narrowing requirement, Justice Breyer says “that reasoning cannot be squared with this Court’s precedent—precedent that insists that States perform the ‘constitutionally necessary’ narrowing function ‘at the stage of legislative definition.” (quotation marks omitted). Although the four justices concluded that the Arizona Supreme Court “misapplied” Supreme Court precedent, and that Hidalgo’s evidence “points to a possible constitutional problem,” they agreed that certiorari should be denied.  That’s because the record in Hidalgo’s case (through no fault of his own) came to the Court “largely unexamined by experts and the courts below in the first instance.” In Breyer’s view, “the issue presented in [Hildago’s] petition will be better suited for certiorari with such a record.”

In Unique Move, Federal Court of Appeals Urges Supreme Court to Sanity on Gun Statue Overkill

In United States v. Rivera-Ruperto, No. 12-2364, 2018 WL 1060694 (1st Cit. Feb. 27, 2018), the en banc First Circuit unanimously “urge[d] the Supreme Court to consider whether the Eighth Amendment permits . . .  the mandatory stacking of sentences under § 924(c) that—due to their cumulative length—necessarily results in the imposition of a mandatory sentence of life without parole.” Id. at 22.

The decision comes from a concurring opinion by Circuit Judge Barron, joined by all First Circuit Judges, to an order denying a petition for rehearing and rehearing en banc. Defendant Rivera-Ruperto was convicted in the United States District Court for the District of Puerto Rico, of conspiracy and attempted possession with intent to distribute controlled substance, possession of firearm in relation to drug trafficking crime, and possession of firearm with obliterated serial number.  His convictions stemmed from a federal sting operation that targeted Puerto Rican police officers.  “As part of that sting, Rivera participated, while armed, in a number of supposed ‘deals’ involving large amounts of fake cocaine in which agents of the Federal Bureau of Investigation (FBI) posed as both buyers and sellers.”

Rivera-Ruperto was sentenced to a 161-year and ten-month prison term, 130 years of which were for six convictions under 18 U.S.C. 924(c). Section 924(c) mandated that the defendant get 130-years imprisonment for his six 924(c) violations—five years for the first conviction, plus twenty-five years for each of the subsequent convictions—even though all but one of his convictions were imposed at the same trial and the defendant had no prior criminal history.

On appeal, Rivera-Ruperto argued that his sentence was grossly disproportionate as to be unconstitutional under the Eighth Amendment in as much as his 924(c) convictions required a life sentence.  Indeed, as Judge Brannon’s concurrence observes, Rivera-Ruperto received a de facto life “even though this case is replete with factors that—under a discretionary sentencing regime—would surely have been relevant to a judge’s individualized rather than arithmetical assessment of whether what Rivera did should not only be punished severely but also deprive him (absent a pardon or commutation) of any hope of ever enjoying freedom again.” Id. at 2.

Judge Barron’s en banc concurrence examines Eighth Amendment proportionality jurisprudence exhaustively.  Applying the Supreme Court’s three-criteria framework for evaluating whether the length of a prison term is impermissibly disproportionate to the seriousness of the offense, see Solem v. Helm , 463 U.S. 277, 292 (1983) (holding sentence of life imprisonment for uttering no acount check for $100 violated the Eighth Amendment), Judge Barron explained, “based on a consideration of those criteria, . . . I would find that Rivera’s mandatory, more-than-century-long sentence was grossly disproportionate and thus in violation of the Eighth Amendment.”

But the opinion recognizes that “Solem . . . is not the last word” from the Supreme Court. Rather, Judge Barron concluded: “I am compelled by precedent—and, in particular, by the nearly three-decades old, three-Justice concurrence in Harmelin v. Michigan, 501 U.S. 957, 1006 (1991) (opinion of Kennedy, J.)—to uphold Rivera’s greater-than-life sentence.”  Hamerlin held the imposition of a mandatory life in prison sentence without possibility of parole, without any consideration of mitigating factors, such as the fact that the petitioner had no prior criminal history, was not cruel and unusual punishment under the Eighth Amendment.  Hamerlin did not produce a majority opinion and the Supreme Court has recognized that Justice Kennedy’s three-judge concurrence in Hamerlin is controlling.  See Graham v. Florida, 650 U.S. 48, 60 (2011).

After explaining why Hamerlin compelled affirmance of Rivera-Ruperto’s sentence, the concurrence addressed several reasons why the Supreme Court should “revisit the logic of the Hamerlin concurrence,” at least as it relates to 924(c) stacking.  The First Circuit decision ends with these concluding paragraphs:

Rivera faces the longest and most unforgiving possible prison sentence for conduct that, though serious, is not of the most serious kind. He does so not because the legislature had authorized its imposition and a judge had then considered all of the aggravating and mitigating circumstances and determined that this sentence was appropriate. He does so only because Congress has been deemed to have made a blanket judgment that even an offender like Rivera—who has no prior criminal record and whose series of related crimes resulted in no harm to an identifiable victim—should have no hope of ever living free. And he does so even though virtually every comparable jurisdiction punishes comparable criminal conduct less harshly, and even though the federal government itself punishes nearly the same or seemingly worse conduct more leniently.

Almost three decades have now passed since the concurring Justices in Harmelin concluded, without reference to real-world comparative benchmarks, that the Eighth Amendment afforded the Michigan legislature the scope to try out what at the time was viewed as a permissible sentencing experiment to address a newly concerning crime problem. In those intervening decades, virtually no jurisdiction has been willing to replicate that state’s experiment. In fact, even the state that the Harmelin concurrence permitted to try it has abandoned it. And yet the Harmelin concurrence still controls.

In my view, a consequence as grave as the one that Harmelin requires in a case like this should have the imprimatur of more than only a nearly three-decade old, three-Justice concurrence. I thus urge the Supreme Court to consider whether the Eighth Amendment permits, at least in a case such as this, the mandatory stacking of sentences under § 924(c) that—due to their cumulative length—necessarily results in the imposition of a mandatory sentence of life without parole.