On Point blog, page 1 of 25
SCOTUS: Second habeas petition filed while first petition pending on appeal must clear procedural hurdle before claim may be considered on its merits.
Rivers v. Guerrero, USSC No. 23-1345, 6/12/2025; Scotusblog page (with links to briefs and commentary)
A unanimous SCOTUS held that a habeas petitioner’s second filing asserting a new claim for relief, submitted after the district court entered judgment with respect to the first filing but while the first filing was pending on appeal, qualifies as a “second or successive” petition and must be approved by the court of appeals before considered by the district court.
SCOTUS Wrap-up
In addition to the SCOTUS cases to which we devoted individual posts (Smith v. Arizona, Erlinger v. U.S., U.S. v. Rahimi, Garland v. Cargill), below is a summary of criminal or criminal-adjacent cases decided by SCOTUS in the 2023-24 term that we consider of interest to criminal practice in Wisconsin state courts.
SCOTUS addresses half of the Confrontation Clause analysis on substitute expert testimony; holds such testimony is generally hearsay
Smith v. Arizona, USSC No. 22-899, 6/21/2024, vacating and remanding Arizona v. Smith, No. 1CA-CR 21-0451 (Ariz. Ct. App. 2022) (unreported); Scotusblog page (with links to briefs and commentary)
SCOTUS unanimously holds that expert witness testimony restating an absent lab analyst’s factual assertions to support his or her own opinion is hearsay. However, the Court declined to address the second part of the Confrontation Clause test, whether the underlying evidence was testimonial, as the issue was undeveloped in this case.
SCOTUS requires jury to find whether prior offenses occurred on different occasions to enhance sentence under Armed Career Criminal Act
Erlinger v. United States, USSC No. 23-370, June 21, 2024, vacating United States v. Erlinger, 77 F.4th 617 (7th Cir. 2023); Scotusblog page (with links to briefs and commentary)
Whether offenses committed on three “occasions different from one another” for purposes of federal Armed Career Criminal Act must be found by a jury beyond a reasonable doubt.
SCOTUS tempers pro-gun 2nd Amendment precedent; holds States may disarm a citizen who poses “a clear threat of physical violence to another”
United States of America v. Rahimi, USSC No. 22-915, 6/21/2024, reversing United States v. Rahimi, 61 F.4th 443 (5th Cir. 2023); Scotusblog page (with links to briefs and commentary)
In a much-anticipated Second Amendment decision, SCOTUS tries to clarify its turbulent precedent regarding firearm restrictions and offers a limited holding upholding a federal statute disarming persons subject to domestic abuse restraining orders so long as specific statutory elements are met.
SCOTUS: ATF exceeded statutory authority by defining “machinegun” to include bump stocks.
Garland v. Cargill, USSC No. 22-976, June 14, 2024, affirming Cargill v. Garland , 57 F.4th 447 (5th Cir. 2023) (en banc); Scotusblog page (with links to briefs and commentary)
ATF exceeded authority when it defined “machinegun” to include bump stocks.
SCOTUS limits practical effect of Bruton’s rule against using the confession of a non-testifying co-defendant
Samia v. United States, USSC No. 22-196, 143 S. Ct. 2004, June 23, 2023, affirming U.S. v. Hunter, et al., Nos. 18-3074-cr, 18-3489-cr, 19-790-cr (2nd Cir. Apr. 20, 2022) (not reported); Scotusblog page (with links to briefs and commentary)
A majority of the Supreme Court affirms the use of a confession of one non-testifying co-defendant against another defendant, and its rationale shows, in the words of the dissenters, that the majority thinks the rule in Bruton v. United States, 391 U.S. 123 (1968), “should go.” (Kagan dissent at 10; Jackson dissent at 1).
Guest Post: SCOTUS leaves the Indian Child Welfare Act intact, for now
Haaland et al. v. Brackeen et al., USSC No. 21-376, 143 S.Ct. 1609 (June 15, 2023), affirming in part, reversing in part, and vacating and remanding 994 F.3d 249 (5th Cir. 2021); Scotusblog page (including links to briefs and commentary)
This is a guest post by Attorney Matthew Giesfeldt of the Madison Appellate office, who is also the SPD’s Family Defense Practice Coordinator.
The Indian Child Welfare Act, or “ICWA,” is a federal law enacted in response to concern that nontribal public and private agencies were removing Native American children from their homes to non-tribal placements at “an alarmingly high percentage[.]” Slip op. at 2. Wisconsin codified ICWA as state law in 2009. Wis. Stat. § 48.028. Under both the federal and state statutes, agencies that place children out of the home (such as local child-protection agencies) must adhere to stricter requirements to remove a tribal child than they must follow to remove a non-tribal child. For example, tribes may intervene in child placement cases, and agencies seeking to remove tribal children from tribal homes must engage in “active efforts” to help the parents and prevent the removal. Wis. Stat. § 48.028(4)(e)2.
In these consolidated cases, the biological parents and each foster parent couple seeking to adopt agreed that a tribal child should be adopted by nontribal parents, but a tribe intervened in opposition to the others’ plans. The parents filed a federal suit challenging ICWA, which three states joined. In one of the cases, the adoption was denied based upon the tribe’s intervening objection, though in the other two cases the tribe ultimately abandoned its objection, allowing the adoption to go through. Slip op. at 6-8.
The Court addressed four separate constitutional challenges to ICWA:
Legal innocence is not enough
Jones v. Hendrix, 143 S.Ct. 1857, 599 U.S. __ (June 22, 2023); Scotusblog page (containing links to briefs and commentary)
The Court, in a 6-3 opinion authored by Justice Thomas, holds that the savings clause in 28 U.S.C. 2255(e) bars a prisoner from using an intervening change in the interpretation of a federal criminal statute to circumvent AEDPA’s restrictions on successive Section 2255 motions by filing a habeas petition under Section 2241.
SCOTUS holds that State must prove subjective awareness of threatening nature of statements to sustain criminal prosecution
Counterman v. Colorado, USSC No. 22-183, 6/27/2023; Scotusblog page (with links to briefs and commentary)
In a case with possible implications for Wisconsin law, SCOTUS holds that in a criminal prosecution involving “true threats,” the State must prove the person “consciously disregarded a substantial risk that his communications would be viewed as threatening violence.”