No. 105, Orig.
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John F. Kowalski, Judge, 26th Judicial Circuit Court of Michigan, et al. v. John C. Tesmer, et al.
No. 03-407
Subject:
Guilty Plea, Right to Appellate Counsel, Fourteenth Amendment, Third-Party Standing, Criminal Law
Questions:
The Michigan Constitution, Mich Const 1963, art I, § 20, provides that a
criminal defendant who pleads guilty shall not have an appeal of right and
shall have a right to appointed appellate counsel "as provided by law." A
Michigan statute, Michigan Compiled Law (MCL) 770.3a, provides, with
significant listed exceptions, that criminal defendants who plead guilty shall
not have appointed appellate counsel for discretionary appeals for review of
the defendant's conviction or sentence.
- Does the Fourteenth Amendment guarantee a right to an appointed
appellate attorney in a discretionary first appeal of an indigent criminal
defendant convicted by a guilty plea?
- Do attorneys have third-party standing on behalf of potential future
indigent criminal defendants to make a constitutional challenge to a state
statute prohibiting appointment of appellate counsel in discretionary first
appeals following convictions by guilty pleas where the federal courts
properly abstained from hearing the claims of indigent criminal defendants
themselves?
Decisions:
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United States v. Freddie J. Booker
No. 04-104
United States v. Ducan Fanfan
No. 04-105
Subject:
Sixth Amendment, Sentence Enhancements, U.S. Sentencing Guidelines, Right to Jury Trial
Questions:
- Whether the Sixth Amendment is violated by the imposition of an enhanced sentence under the United States Sentencing Guidelines based on the sentencing judge's determination of a fact (other than a prior conviction) that was not found by the jury or admitted by the defendant.
- If the answer to the first question is "yes," the following question is presented: whether, in a case in which the Guidelines would require the court to find a sentence-enhancing fact, the Sentencing Guidelines as a whole would be inapplicable, as a matter of severability analysis, such that the sentencing court must exercise its discretion to sentence the defendant within the maximum and minimum set by statute for the offense of conviction.
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Tuesday, October 5
KP Permanent Make-Up, Inc. v. Lasting Impressions, Inc., et al.
No. 03-409
Subject:
Trademark Infringement, Fair Use, Intellectual Property
Question:
Does the classic fair use defense to trademark infringement require the party
asserting the defense to demonstrate an absence of likelihood of confusion,
as is the rule in the 9th Circuit, or is Fair Use an absolute defense,
irrespective of whether or not confusion may result, as is the rule in other
Circuits?
Decisions:
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Koons Buick Pontiac GMC, Inc. v. Bradley Nigh
No. 03-377
Subject:
Question:
Whether the $1,000 statutory limit originally adopted in 1968 as a cap on
Truth in Lending Act (TILA) recoveries under 15 U.S.C. § 1640(a)(2)(A)(i)
has been rendered inapplicable to that subpart by subsequent amendments
to Section 1640(a)(2)(A) -- though there is no evidence of any Congressional
intent to effect such a change -- so that parties who suffer no actual
damages may now recover far in excess of the previous $1,000 cap.
Decisions:
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Amicus - Supporting Petitioner
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Wednesday, October 6
Norfolk Southern Railway Co. v. James N. Kirby, Pty Ltd., et al.
No. 02-1028
Subject:
Carriage of Goods by Sea Act ("COGSA"), Contracts
Questions:
- Whether a cargo owner that contracts with a freight forwarder for
transportation of goods to a destination in the United States is bound by the
contracts that the freight forwarder makes with carriers to provide that
transportation.
- Whether federal maritime law requires that terms of a bill of lading
extending liability limitations under the Carriage of Goods by Sea Act
("COGSA"), 46 U.S.C. app. §§ 1300-1315, to "independent contractors"
used to perform the contract of transportation must be narrowly construed
to cover only those independent contractors in privity of contract with the
bill's issuer .
Decisions:
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Amicus - Supporting Petitioner
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Cooper Industries, Inc. v. Aviall Services, Inc.
No. 02-1192
Subject:
Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), Contribution, Clean-Up Costs, Environmental Law
Question:
Whether a private party who has not been the subject of an underlying civil
action pursuant to CERCLA Sections 106 or 107, 42 U.S.C. §§ 9606 or 9607,
may bring an action seeking contribution pursuant to CERCLA Section
113(f)(1), 42 U.S.C. § 9613(f)(1), to recover costs spent voluntarily to clean
up properties contaminated by hazardous substances.
Decisions:
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Amicus - Supporting Petitioner
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Tuesday, October 12
Josue Leocal v. John Ashcroft, U.S. Attorney Gen., et al.
No. 03-583
Subject:
Question:
The court below interpreted
18
U.S.C. § 16 to include DUI with serious bodily injury as a "crime
of violence"--and therefore an "aggravated felony" as defined under §
101(a)(43)(F) of the Immigration and Nationality Act ("INA")--where
the statute under which Petitioner was convicted required nothing more
than negligence for conviction. That ruling conflicts with decisions of
other United States Courts of Appeals and with the interpretation of the
Board of Immigration Appeals ("BIA " or "Board").
The question presented is as follows:
Whether, in the
absence of a mens rea of at least recklessness with respect to the active
application of force against another, DUI with serious bodily injury
is a "crime of violence" under 18
U.S.C. § 16 that constitutes an "aggravated felony" under §
101 of the INA?
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Keyse G. Jama v. U.S. Immigration and Naturalization Service
No. 03-674
Subject:
Removal of Aliens, Acceptance by Foreign Country, Deportation
Question:
Whether the Attorney General can remove an alien to one of the countries
designated in 8 U.S.C. § 1231(b)(2)(E) without obtaining that country's
acceptance of the alien prior to removal.
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Wednesday, October 13
Donald P. Roper, Superintendent, Potosi Correctional Center v. Christopher Simmons
No. 03-633
Subject:
Minimum Age for Capital Punishment, Cruel and Unusual Punishment, Eighth Amendment, Fourteenth Amendment
Questions:
The Supreme Court of Missouri departed from this Court's holding in Stanford
v. Kentucky, 492 U.S. 361 (1989), in which the Court upheld statutes under
which the minimum age for capital punishment is sixteen. The Missouri
court's decision raises two questions:
- Once this Court holds that a particular punishment is not "cruel and
unusual" and thus barred by the Eighth and Fourteenth Amendments, can a
lower court reach a contrary decision based on its own analysis of evolving
standards?
- Is the imposition of the death penalty on a person who commits a murder
at age seventeen "cruel and unusual," and thus barred by the Eighth and
Fourteenth Amendments?
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A. Neil Clark, Field Office Director, Seattle, Washington, Immigration and Customs Enforcement, et al. v. Sergio S. Martinez
No. 03-878
Daniel Benitez v. Michael Rozos, Field Office Director, Miami, Florida, Immigration and Customs Enforcement
No. 03-7434
Subject:
Detention of Permanent Resident Aliens, Removal, Deportation, Immigration Law
Question:
Whether [8 U.S.C.] Section 1231(a)(6) and Zadvydas v. Davis, 533 U.S. 678 (2001)
compel the release of an arriving alien who was
apprehended at the border of the United States, denied
admission, and ordered removed from the United
States.
Decisions:
- U.S. Court of Appeals - 11th Circuit
 (Benitez v. Wallis), Opinion Filed: July 17, 2003
- U.S. Court of Appeals - 9th Circuit, (Martinez v. Smith), Unpublished Order Filed: August 18, 2003
- United States Supreme Court, Case No. 03-878, Cert. Granted: March 1, 2004
- United States Supreme Court, Case No. 03-3474, Cert. Granted: January 16, 2004
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Amicus - Supporting Petitioner Benitez (No. 03-7434)
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