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Capital Appeals Procedure Dispute Granted; Two Summary Reversals

By William Peacock, Esq. | Last updated on
Robert Mitchell Jennings won. A federal district court granted habeas relief because Jennings' trial counsel failed to present evidence of his possible brain abnormalities and his disadvantaged background. The district court, however, didn't agree with his argument about his attorney's concessions during closing arguments. The government appealed, the Fifth Circuit reversed, and refused to consider the capital concession argument, labeling it procedurally defaulted. The Supreme Court granted certiorari in the case earlier today. The Court also issued summary reversals in two other cases, one based on last year's divisive Alleyne v. United States, and the other based on a Solicitor General's brief and an advisory note tweak by the Sentencing Commission.

Appealing a Victory

Most lawyers will tell you that, if you win, take the verdict and run. Does that advice apply in a habeas corpus case? Jennings was convicted of murdering a Houston police officer while robbing an adult bookstore. Ironically, according to the ABA Journal, when he told his getaway driver what he did, the getaway driver shot Jennings, who was later arrested while seeking treatment. A federal district court granted habeas on the basis of trial counsel's failure to present evidence of Jennings' possible brain abnormalities, which an expert testified related to emotional control, and of his disadvantaged background. (He was conceived as a result of rape, a fact his mother repeatedly reminded him of.) Jennings' other argument, that his attorney provided ineffective assistance during his closing argument by conceding defeat and stating that he could not quarrel with the jury's decision to find him eligible for the death penalty, didn't sway the trial court. The Fifth Circuit reversed the district court [PDF] and refused to hear the concession issue, holding that Jennings was required to seek a Certificate of Appealability (COA) on the issue, and was required to file a notice of appeal as well. The Court granted certiorari this morning to determine whether a habeas petitioner can raise arguments in opposition to the state's appeal concerning grounds for relief not adopted by the district court without first seeking a COA.

Alleyne Aftershock

According to an unpublished Third Circuit opinion, Dominique Johnson was convicted of a handful of charges related to a string of 2009 bank robberies in Philadelphia. Though that opinion does not mention Harris (the 2002 case reversed by Alleyne) or Apprendi (the basis for Alleyne), the Court cited last year's landmark case as the basis for a summary reversal. Alleyne, in overruling Harris, held that facts that increase a mandatory minimum sentence (such as a firearm charge) must be submitted and proven to a jury.

Fifth Circuit Gets Reversed By ... A Sentencing Commission Note?

The Court's other summary reversal instructed the Fifth Circuit to peek at the Solicitor General's brief in the case, Garcia v. United States. Garcia is one of many petitioners who were denied an additional one point reduction in their sentencing offense levels because they refused to waive their right to appeal. In 2013, the Sentencing Commission addressed a circuit split on the matter and modified their advisory notes to clarify that such a refusal was improper, as the relevant guideline, U.S.S.G. § 3E1.1, allows two points for acceptance of responsibility, and an extra point if the defendant does so in a timely manner, "thereby permitting the government to avoid preparing for trial ..." (emphasis added). Fifth Circuit precedent held to the contrary, but the Sentencing Commission came to a different conclusion, modifying the guideline's advisory notes to state:
"The government should not withhold such a motion based on interests not identified in §3E1.1, such as whether the defendant agrees to waive his or her right to appeal."
The Solicitor General's brief argued that because the Commission is prohibited by statute from making substantive modifications to this specific rule, and is only allowed to clarify the rule, that the Fifth Circuit should consider this clarification, even though it wasn't in effect at the time of sentencing. (Clarifications can be considered, while substantive changes are not.) Notably, the Fifth Circuit has already decided that the change was substantive, and therefore not applicable to past cases, while the Ninth Circuit went the other way. We guess that means the Fifth Circuit was reversed twice in a single paragraph. Related Resources:
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