First Monday: Supreme Court Preview

Under 28 U.S.C. § 2,

The Supreme Court shall hold at the seat of government a term of court commencing on the first Monday in October of each year and may hold such adjourned or special terms as may be necessary.

Today is the first Monday in October, and so is the first day of October Term 2011. Most readers probably know that there’s a huge warrantless GPS tracking case on tap. (That’s United States v. Jones, scheduled for oral argument on November 8; you can read more about the case here.) But there are several other interesting and significant criminal cases on the docket. Here’s a sampling, including the question presented and the oral argument date for each case.

1. Martinez v. Ryan (oral argument scheduled for October 4)

Whether a defendant in a state criminal case who is prohibited by state law from raising on direct appeal any claim of ineffective assistance of trial counsel, but who has a state-law right to raise such a claim in a first post-conviction proceeding, has a federal constitutional right to effective assistance of first post-conviction counsel specifically with respect to his ineffective-assistance-of-trial-counsel claim.

2. Howes v. Fields (oral argument scheduled for October 4)

Whether this Court’s clearly established precedent under 28 U.S.C. § 2254 holds that a prisoner is always “in custody” for purposes of Miranda any time that prisoner is isolated from the general prison population and questioned about conduct occurring outside the prison regardless of the surrounding circumstances.

3. Lafler v. Cooper (oral argument scheduled for October 31)

Is a state habeas petitioner entitled to relief where his counsel deficiently advises him to reject a favorable plea bargain but the defendant is later convicted and sentenced pursuant to a fair trial?

4. Missouri v. Frye (oral argument scheduled for October 31)

Contrary to the holding in Hill v. Lockhart, 474 U.S. 52 (985) – which held that a defendant must allege that, but for counsel’s error, the defendant would have gone to trial – can a defendant who validly pleads guilty successfully assert a claim of ineffective assistance of counsel by alleging instead that, but for counsel’s error in failing to communicate a plea offer, he would have pleaded guilty with more favorable terms?


What remedy, if any, should be provided for ineffective assistance of counsel during plea bargain negotations if the defendant was later convicted and sentenced pursuant to constitutionally adequate procedures?

The latter question was added by the Court, and was also added to Lafler v. Cooper, above.

5. Perry v. New Hampshire (oral argument scheduled for November 2)

Do the due process protections against unreliable identification evidence apply to all identifications made under suggestive circumstances, as held by the First Circuit Court of Appeal and other federal courts of appeal, or only when the suggestive circumstances were orchestrated by the police, as held by the New Hampshire Supreme Court and other courts?

6. Setser v. United States (oral argument scheduled for November 30)

Does a district court have authority to order a federal sentence to run consecutive to an anticipated, but not-yet-imposed, state sentence?

7.Williams v. Illinois (oral argument scheduled for December 6)

Whether a state rule of evidence allowing an expert witness to testify about the results of DNA testing performed by non-testifying analysts, where the defendant has no opportunity to confront the actual analysts, violates the Confrontation Clause.

Plainly, the Court will address several important areas, including Miranda, plea bargaining, and the Confrontation Clause. I’ve omitted most of the cases about post-conviction procedure, but the Court will also consider several technical cases involving federal habeas procedures under the Antiterrorism and Effective Death Penalty Act. Finally, the Court likely will grant certiorari in at least a dozen additional cases that will be heard this Term, maybe several dozen. If any of those look like blockbusters, I’ll note them during my weekly news roundups. Stay tuned!

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