Author: Kent Scheidegger

Supreme Court Unanimously Rejects Evasion of Successive Habeas Petition Limit

by · Jun 12, 2025 7:36 am

In 1996, Congress cracked down hard on the then-routine practice of state prisoners filing one habeas corpus petition after another to attack the same criminal judgment. Relitigating the same claim is not allowed at all, and making new claims is severely restricted. Ever since, the defense bar has been trying to poke holes in this barrier, with varying degrees of success.

Today the Supreme Court slammed shut a loophole that had been created by one court of appeals but rejected by most of them. Convicted child abuser Danny Rivers claimed that he could request to amend his habeas corpus petition to add a new claim even after his initial petition had been denied by the district court and was pending on appeal. The unanimous opinion by Justice Jackson holds:

A second-in-time §2254 petition generally qualifies as a second or successive application, triggering the requirements of §2244(b), when an earlier filed petition has been decided on the merits and a judgment exists. Because the Fifth Circuit correctly applied this straightforward rule, we affirm.

Continue reading . . .

Pelosi Wrongly Calls Use of National Guard “Contra-Constitutional”

by · Jun 11, 2025 3:23 pm

Congresswoman and former Speaker Nancy Pelosi said recently that President Trump “in a contra-constitutional way … has sent the National Guard into California. Something is very wrong with this picture.” What is wrong is Ms. Pelosi’s understanding of the Constitution.

It is regrettably common for people to run around saying things are unconstitutional simply because they disagree with them strongly. The former Speaker should know better.

The National Guard is part of the militia, as that term is used in the Constitution. Article I, section 8, authorizes Congress to “to provide for calling forth the Militia to execute the Laws of the Union,” and Congress has done so in 10 U.S.C. §§ 252 and 253. The Constitution further provides, in Article II, section 2, that the “President shall be Commander in Chief . . . of the Militia of the several States, when called into the actual Service of the United States.” Use of the militia to enforce federal law goes back to President Washington. Presidents Eisenhower and Kennedy used the predecessors of the code sections cited above over the objections of state governors. I will have a long post on this soon.

Continue reading . . .

Intellectual Disability and the Death Penalty, Again

by · Jun 9, 2025 8:33 am

Should people with intellectual disability be exempt from capital punishment? If so, who decides where and how to draw the line? The U.S. Supreme Court opened a can of worms with its 2002 decision in Atkins v. Virginia that a categorical exemption is constitutionally required. Last Friday* the court decided to look into this can once again, taking up the case of Alabama murderer Joseph Smith. The case is Hamm v. Smith, No. 24-872.

When the Supreme Court announced its decision 23 years ago, it seemed to be constitutionalizing only the yes-or-no decision, leaving the line-drawing to the states. Even while making a dubious finding of consensus on the categorical exemption, the court acknowledged disagreement on how to draw the line. Quoting an earlier decision forbidding execution of insane persons, the opinion said, “we leave to the State[s] the task of developing appropriate ways to enforce the constitutional restriction upon [their] execution of sentences.”

This holding of Atkins was effectively overruled by later decisions. In the Smith case, the U.S. Court of Appeals for the Eleventh Circuit has told Alabama it is drawing the line wrong. There are two problems. First, how do you determine the possible range of someone’s “true IQ” when he has multiple test scores? Second, can we declare a person intellectually disabled even though the probability that his true IQ is below 70 is vanishingly small?

Looming over these two questions is a larger question. Do the questions above have right and wrong answers as a matter of federal constitutional law, or should the Supreme Court return to honoring its long-ago, much-violated promise in Atkins that the states would have leeway in these matters? Continue reading . . .

Amending the Complaint After Losing the Case

by · Jun 5, 2025 9:11 am

The U.S. Supreme Court has two cases on its docket this year addressing attempts to amend a complaint or petition after the case has already been decided in the trial court and gone to the court of appeals. BLOM Bank SAL v. Honickman, decided today, is a regular civil case.  Rivers v. Guerrero is a habeas corpus case, in which CJLF has filed an amicus brief.

Today’s decision in BLOM Bank looks very good for the prospect of success in Rivers. It is in line with the approach of our Rivers brief . Continue reading . . .

Artificial Precedent

by · Jun 3, 2025 3:42 pm

Lawyers using artificial intelligence to write their briefs have a problem. The AI brief writers sometimes cite nonexistent cases to support their arguments, Daniel Wu reports in the WaPo. Yes, that’s certainly easier than combing through the pile of opinions that a computer search turns up to find one that actually supports your point.

Using new tools to make legal research better and more efficient is a great improvement. That has been steadily improving since computer-aided research was first invented long ago, and AI may well be a quantum leap in that development. Using AI to actually write your brief is a much riskier step. But submitting an AI brief without cite-checking it is gross negligence, in my opinion.

The WaPo story reports: Continue reading . . .

Supreme Court Takes Up Case on Emergency Home Entry

by · Jun 2, 2025 8:19 am

Generally, police need a warrant to enter a home, but there is a long-established exception for emergencies. In 2006 in Brigham City v. Stuart, the Supreme Court held that “an objectively reasonable basis for believing that an occupant is seriously injured or imminently threatened with such injury” will do.

This standard is not phrased in the usual terms of Fourth Amendment standards. It does not say “probable cause,” the term explicitly stated by that amendment as the requirement for a warrant. According to the defendant in Case v. Montana, No. 24-624, “The state courts and federal courts of appeals are deeply divided, however, on whether this ‘objectively reasonable basis’ standard requires police making a warrantless entry to have probable cause to believe an emergency exists or some lower level of suspicion.” The court apparently believes there is enough of a split to warrant its attention. Continue reading . . .

Modifying Federal Sentences

by · May 27, 2025 9:10 am

Federal law, 18 U.S.C. § 3582(c), provides a limited authority for a federal judge to modify a previously imposed term of imprisonment. One of the grounds, in subparagraph (1)(A), is that “extraordinary and compelling reasons warrant such a reduction.” Today the U.S. Supreme Court took up the case of Fernandez v. United States, No. 24-556, to decide if reasons that would support a motion to vacate a sentence constitute grounds for a 3582(c)(1)(A) modification. The motion-to-vacate statute, 28 U.S.C. § 2255, is Congress’s substitute for habeas corpus for federal prisoners.

Continue reading . . .

California Legislature Considering Early Parole for Murderers and Rapists

by · May 23, 2025 10:08 am

The California Legislature is considering moving up parole hearings and releases for murderers and rapists. The proponents of this change may be having some difficulty rounding up the votes, and they have employed a legislative trick to buy more time. People with sense need to use this time to tell their representatives to vote down this atrocity instead.

In California, sentences of X-to-life (as opposed to a set term of years) are generally reserved for the very worst criminals. Murderers make up the lion’s share of inmates with these “indeterminate sentences.” Most second-degree murders draw a sentence of 15-to-life, and first-degree murder without special circumstances draws 25-to-life. Some repeated or exceptionally heinous sex crimes also draw similar sentences. The Three Strikes Law — which was substantially narrowed in an initiative in 2012 — also provides an indeterminate sentence for the third conviction of felonies from lists designated “serious” or “violent,” but these lists are considerably narrower than their names imply. Assault with a deadly weapon is not on the “violent” list, for example.

Before 2016, all of the minimums above were real minimums. Credits for good behavior or program participation could shorten fixed-year sentences, but they did not move up the minimum eligible parole dates (MEPD) for the X-to-life sentences, with a few minor exceptions. Proposition 57 passed in that year. The state prison department, called the California Department of Corrections and Rehabilitation (CDCR), subsequently claimed that Prop. 57 authorized it to move up MEPDs via credits, untroubled by the fact that the initiative does not contain a single word about MEPDs.

CJLF and three crime victims filed suit over this and other issues with CDCR’s credit regulations. The Sacramento Superior Court agreed with us regarding MEPDs and issued a writ of mandate to cease early parole hearings and early releases. CDCR appealed, and the writ was stayed pending appeal as to the early hearings but remains in effect as to early releases. Oral argument in CJLF v. CDCR, No. C100274, was heard in the Third District Court of Appeal last Tuesday, May 20.

Assembly Member Ash Kalra is wringing his hands over the murderers and rapists being deprived of their early releases. If he cares anything at all about the victims and their families, he hasn’t shown it. So he took an unrelated bill about prison visitation, amended out all its text, and substituted language that would authorize CDCR to move up MEPDs this way. Continue reading . . .

Fraud Without Financial Injury

by · May 22, 2025 8:54 am

If a liar lies to induce someone into a deal and the other person suffers no monetary loss, is it still a fraud? Yes, under the federal “wire fraud” statute, the U.S. Supreme Court decided today in Kousisis v. United States, No. 23-909. The high court was unanimous as to that basic rule, but there were some disagreements on scope and the underlying issue in the fraudulent inducement.

The Pennsylvania Dept. of Transportation needed some restoration work done, and the federal government was picking up part of the tab. Federal regulations required a “disadvantaged-business program.” Kousisis represented that he would obtain painting supplies from a “disadvantaged” business, but that business was just a pass-through that got paid a fee for processing paperwork for supplies actually purchased elsewhere.

So PennDOT got the services it paid for, but it didn’t get the boost to supposedly disadvantaged business that was expressly made a material term of the contract. Is that fraud? Of course. Regardless of what one thinks of such clauses in government contracts, it was part of the deal. In order to get money, Kousisis made a fraudulent inducement on a term that was material to the other party, and that is all the law requires.

So where is the disagreement? Continue reading . . .