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What's cooking with Booker?

Editorial: Congress targets Habeas Corpus

Review: California Habeas Handbook

The Raich decision

What's cooking with Booker?

By Chuck Armsbury, Razor Wire senior editor

My latest review of selected websites featuring news and commentary over the six months after the January 2005 Booker ruling suggests that a nervous "business as usual" mood clouds clogged criminal courtrooms across the nation. And the challenge to bring order to the constitutional requirements, retroactivity for one, posed by Booker is formidable for legal scholars and court officials.

Ohio Law Professor Doug Berman has been interviewed about Blakely/Booker implications many times on national television. In one recent website post, Berman expressed frustration with the priorities chosen by the Supreme Court even as Blakely/Booker principles supporting Sixth Amendment rights are disappearing, eroded, uncertain or contested,

"What's up with the Court's granting certiorari on so many death cases? The death penalty is rarely meted out. If the members of the Court really cared about sentencing, they'd "grant cert" on the various Blakely/Booker issues. If the liberals cared so much about justice in sentencing, they'd not have crafted their lame and unprincipled Booker remedial scheme."

Sure, "death is different," Berman qualified, "but death is also rare. The horrors of prison are real and frequent. Why not ensure that only those found guilty by a jury of their peers spend time in prison?"

The reality is that we are now six months out from the Booker ruling with no serious Senate discussion of a possible Booker fix. Of course, House drug warriors and Attorney General Gonzales have been talking up a "Booker fix" of more mandatory sentencing, coupled with increased pressure to inform on people (as in HR 1528: see Spy vs. Spy), and sold to voters under the government's current media campaign on methamphetamine.

Among hundreds of cases that are decided weekly in US District and Circuit Courts, Professor Berman listed the recent US v. Garcia, No. 04-40963 (5th Cir. July 11, 2005) as interesting. "The Fifth Circuit, despite applying its tough plain error standard, vacated and remanded a sentence on Booker grounds. That fact alone (as well as the court's sensible dodge of an ex post facto argument) makes the case notable for legal reasons. But the decision really caught my eye because the facts indicated that the district court calculated Garcia's base offense level based on relevant conduct involving 48,651.7 kilograms of marijuana," wrote Berman humorously on July 11th. That's about 50 tons of pot.

Berman summarizes the Supreme Court's decisions since Booker, "There were a lot of capital and habeas cases; there were relatively few police practices cases, and criminal defendants and prisoners generally did better than I have come to expect. In my mind only Booker and Roper should be remembered as big criminal justice decisions from this past term."

For quick, online cases and updates on Blakely/Booker issues, check out Professor Berman's website and related links:

From The Washington Post © July 7, 2005

Editorial: Congress targets Habeas Corpus

Congress has a novel response to the rash of prisoners over the past few years who have been exonerated of capital crimes after being tried and convicted: keep similar cases out of court. Both chambers of the national legislature are quietly moving an ugly piece of legislation designed to gut the legal means by which prisoners prove their innocence.

Habeas corpus is the age-old legal process by which federal courts review the legality of detentions. In the modern era, it has been the pivotal vehicle through which those on death row or serving long sentences in prison can challenge their state-court convictions. Congress in 1996 rolled back habeas review considerably; federal courts have similarly shown greater deference to flawed state proceedings. But the so-called Streamlined Procedures Act of 2005 takes the evisceration of habeas review, particularly in capital cases, to a whole new level. It should not become law.

For a great many capital cases, the bill would eliminate federal review entirely. Federal courts would be unable to review almost all capital convictions from states certified by the Justice Department as providing competent counsel to convicts to challenge their convictions under state procedures. Although the bill, versions of which differ slightly between the chambers, provides a purported exception for cases in which new evidence completely undermines a conviction, this is drawn so narrowly that it is likely to be useless - even in identifying cases of actual innocence.

It gets worse. The bill, pushed by Rep. Daniel E. Lungren (R-CA) in the House and Jon Kyl (R-AZ) in the Senate, would impose onerous new procedural hurdles on inmates seeking federal review - those, that is, whom it doesn't bar from court altogether. It would bar the courts from considering key issues raised by those cases and insulate most capital sentencing from federal scrutiny. It also would dictate arbitrary timetables for federal appeals courts to resolve habeas cases. This would be a dramatic change in federal law - and entirely for the worse.

The legislation would be simply laughable, except that it has alarming momentum. A House subcommittee held a hearing recently, and the Senate Judiciary Committee is scheduled to hold one and then mark up the bill soon.

It is no exaggeration to say that if this bill becomes law, it will consign innocent people to long-term incarceration or death.

California Habeas Handbook, Fourth Edition (2003) By Kent A. Russell

Review by Eugene Dey, prisoner of the drug war

Ever since the Supreme Court ruled there is no "abstract, free-standing right to a law library or legal assistance" (see Lewis v. Casey (1996) 518 U.S. 343), prison authorities have gone to great lengths to find less expensive alternatives in their responsibility to provide meaningful access to the courts.

A well-stocked prison library is a thing of the past. Kent Russell, post-conviction expert, famed attorney, and quarterly columnist for Prison Legal News (PLN), has revised the California Habeas Handbook, 4th edition.

Russell produced the first edition in 1996, when Congress passed the Anti-terrorism and Effective Death Penalty Act (AEDPA). The Handbook differs from most law books because it is concise, current, and easy to understand.

In previous editions, Russell featured the necessity to properly file state petitions. He did so while acknowledging the importance of timely filing federal habeas petitions within the AEDPA's unforgiving one-year statute of limitations.

The 4th edition has significantly improved. Since federal habeas corpus has proven to be one's best chance for relief, the updated version covers federal habeas procedures in more detail.

The author underscores the point that the AEDPA hovers over the entire state proceeding like a vulture - ready to pounce at the first sign of weakness. For those unfamiliar with how it all works, this written work provides an excellent starting point.

Russell stresses the necessity to identify how much time one has to file federalized claims. He explains that the clock is ticking and that one must timely file properly raised issues in order to avoid the dreaded procedural default-the end result of most pro per pleadings.

The tricky and skilled jailhouse lawyer who has a move and counter-move for every conceivable inevitability is more of a myth than a reality in light of the AEDPA. Moreover, bad advice from unskilled pro per prisoners is the norm. It is imperative that one begin one's journey into the court system with accurate information.

Russell offers sound advice throughout the text. In addition to being organized in nine easy-to-read chapters, there are a number of special features exclusive to the 4th edition. The expanded appendix contains a wide-range of forms: Traverse, Notice of Appeal, Certificate of Appealability, in addition to state (MC 275 Form, California) and federal (2254) habeas petitions. The step-by-step instructions on how to fill out the habeas petitions eliminate a lot of common mistakes.

The Handbook is a valuable source of information for anyone concerned with justice. But it is a must-have for "state" prisoners proceeding to the federal courts.

While the California Habeas Handbook has no pound-for-pound equal, one must always research one's issues as thoroughly as possible.

To order, send $29 (includes S&H) to: Kent A. Russell, California Habeas Handbook, 2299 Sutter Street, San Francisco, CA, 94115.

The Raich decision

On June 6, 2005, the Supreme Court ruled 6-3 (in Alberto R. Gonzales, et al. v. Angel McClary Raich), that the federal government retains the authority under the Commence Clause of the Constitution to prosecute medical marijuana patients, regardless of state laws to the contrary.

Writing for the majority, Justice Paul Stevens squarely placed the issue in Congress's court by saying that [only] Congress could change the law to allow medical use of cannabis.

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