Tuesday, August 24, 2010

A blip or a storm?

Yesterday, the Court issued a published decision in the case of Cvijetinovic v. Eberlin. Case No. 08-3629 http://www.ca6.uscourts.gov/opinions.pdf/10a0256p-06.pdf

The holding of the case is somewhat unremarkable (counsel not ineffective for failing to anticipate Blakely and state court precedent applying Apprendi); however, the dicta regarding the futility doctrine bears review. The defendant had argued that he was excused from raising an Apprendi claim on direct review, as the state courts had consistently held that Apprendi did not apply to Ohio sentencing schemes. The Court, in rejecting this claim, eliminated, or at least gutted, the futility doctrine to excuse procedural default. The Court noted that "the alignment of the circuits against a particular legal argument
does not equate to cause for procedurally defaulting it."

The Court recognized that, in holding in this fashion, it was inviting (and apparently requiring) counsel to raise all issues, in all cases, no matter how frivolous they may seem at the time in light of then existing law. The Court admitted "this rule could, under certain circumstances, lead to some potentially undesirable results. One jurist predicted that 'defense counsel will have no choice but to file one ‘kitchen sink’ brief after another, raising even the most fanciful defenses that could be imagined based on long-term logical implications from existing precedents.' United States v. Smith, 250 F.3d 1073, 1077 (7th Cir. 2001) (Wood, J., dissenting from denial of rehearing en banc). However, '[u]nless and until the Supreme Court overrules its decisions that futility cannot be cause, laments about those decisions forcing defense counsel to file ‘kitchen sink’ briefs in order to avoid procedural bars are beside the point.'”

So readers, what do you think? Are attorneys now tasked with filing "kitchen sink" briefs in all cases in order to preserve any and all claims, no matter how futile they may seem, until there is a Supreme Court ruling on the issue?

1 comment:

Paul said...

As a practical matter, I don't see a change in current practice. I argued for years in brief after brief that the sentencing guidelines were unconstitutional; those kinds of arguments are essential to proper representation. But I don't see that anyone at trial has the time or resources to hit every possible issue.