U.S. Supreme Court to Hear Retroactivity of Crawford v. Washington

In Crawford v. Washington, 541 U.S. 36 (2004), the United States Supreme Court held that the confrontation Clause of the Sixth Amendment prohibitted the admission of hearsay statements by third parties which were “testimonial” in nature. Crawford overruled a long line of U.S. Supreme Court precedent to the contrary. U.S. Supreme Court precedent says that overruling decisions are generally not retroactive unless the old rule created unreliable results.

The facts in the Whorton v. Bocking are fairly simple. Marvin Bockting was convicted of rape and sentenced to life in prison by a Nevada Court. He challenges the constitutionality of the court’s admitting hearsay testimony of his victim without opportunity for cross- examination. No such requirement was in place at the time of his conviction, but in Crawford, later decided that such cross-examination is necessary for the admission of this type of hearsay testimony.

In the lower court decision (Bockting v. Bayer, 399 F.3d 1010, 1013 (9th Cir. 2005)), the Ninth Circuit Court of Appeals ruled that Crawford was retroactive. The Supreme Court has granted certiorari to determine if the Ninth Circuit is correct. This case will represent another data point in the set defining the scope of retroactivity of criminal procedure rules. Moreover, it will clarify federal courts’ powers to hear cases on writs of habeas corpus when the issue at hand is the retroactive application of a criminal procedure rule. The decision of the Ninth Circuit conflicts with the decisions of the decisions of the Second, Sixth, Seventh, and Tenth circuits. Oral arguments are scheduled for October 31, 2006.

Supreme Court to Hear Critical Habeas Corpus Timing Issue.

In 1996, the United States Congress adopted the the Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2244 . Under §2244(d)(2) of the Act, a criminal defendant challenging his/her conviction under a federal writ of habeas corpus, must file the petition with the federal district court within one year of the final resolution of state court appeal. An extension of this time is granted when there is an extraordinary circumstance justifying equitable tolling or if a statute authorizes it. There has been a sharp conflict amongst the circuits about whether there is a tolling period for the time period in which a criminal defendant seeks certiorari from a state-postconviction ruling.

In Lawrence v. Florida, the Supreme Court will determine whether a pending request for Supreme Court certiorari from the denial of a state post-conviction petition is: (1) a statutory tolling event, (2) whether such a pending request for certiorari is an extraordinary event justifying equitable tolling, or (3) whether the delayed filing of a habeas petition by a state-assigned attorney is an extraordinary event justifying equitable tolling of the statute of limitations. The Supreme Court ’s decision in this case will determine the availability of important post-conviction relief to indigent defendants affected by inconveniencing circumstances beyond their control.

Several years ago, the United States Supreme Court held that the time that a petition for certiorari was pending from a direct appeal was tolled from the act. Clay v. United States, 537 U.S. 522 (2003). The Sixth Circuit has extended that ruling to collateral attacks. Abela v. Martin, 348 F.3d 164 (6th Cir. 2003). The Eleventh Circuit disagreed. Lawrence v Florida, 421 F.3d 1221 (11th Cir. 2005). The U.S. Supreme Court’s ruling will resolve this issue once and for all. Oral arguments are scheduled for October 31, 2006.