Friday, September 28, 2007

Good Citations No. 3

Here are some interesting developments around the country that might come in handy.

• In our habeas corpus cases involving the one year statute of limitations under the Anti-Terrorism and Effective Death Penalty Act, we should take a second look at when the sentence became final. In Ferreira, the Eleventh Circuit reversed course based on this term’s Supreme Court opinion in Burton, which found that a petitioner’s claims were successive. The Court used language in Burton to overturn its precedent finding that the statute of limitations did not restart with the grant of a new sentencing where the conviction remained intact. “The judgment to which AEDPA refers is the underlying conviction and most recent sentence that authorizes the petitioner’s current detention.” In other words, the statute of limitations for the federal habeas statute should commence when there is any change in the underlying state sentence, even if the conviction is not overturned.

• In Amos, the Sixth Circuit opens a much needed circuit split on whether a mere possession of a sawed-off shotgun constitutes a “violent felony” under the Armed Career Criminal Act. The Court, applying the least objectionable form of the offense, found that mere possession of a sawed-off shotgun did not create the types of risks that were contemplated by the ACCA. Judge Batchelder’s concurrence provided a roadmap for raising this issue in the Ninth Circuit by 1) citing to the intervening Supreme Court authority of Leocal for the proposition that “crime of violence,” which has almost the same definition as the ACCA’s “violent felony,” should be given its ordinary and natural meaning; and 2) citing to Fish in the Ninth Circuit and other cases that undercut the reasoning behind treatment of simple possession as a “violent felony” under the ACCA. Congratulations to C. Douglas Thoresen of the Nashville Federal Public Defender!

• Our comrades in the Federal Defender office for the Eastern District of Wisconsin have this lovely newsletter, “The Doing Time Times.” The articles in the Fall 2007 issue include sex offender registration, update on crack and powder cocaine sentencing, compassionate discharge under 18 U.S.C. § 3582(c), and, winning the award for the best article title, “Presidential Clemency-How Do I Get What Lewis Libby Got?”

Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon


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