http://www.scotusblog.com/wp/todays-orders-12/ The Supreme Court of the United States blog Thu, 26 Jun 2008 21:56:34 -0700 http://wordpress.org/?v=2.8.5 hourly 1 http://www.scotusblog.com/wp/todays-orders-12/comment-page-1/#comment-13923 gary myers Fri, 28 Dec 2007 19:21:22 +0000 http://www.scotusblog.com/wp/uncategorized/todays-orders-12/#comment-13923 In the Burgess v. US petition (granted Dec. 7), isn't there a somewhat ironic Anders issue. At least from the opinion, it looks like the statutory interpretation issue related to the ability of the defendant's prior conviction to be treated as a prior "felony" was raised only by an Anders submission. While defense counsel raised the question at sentencing, in the court of appeals he filed an Anders submission suggesting that any appeal was frivolous but noting the existence of the statutory interpretation question. Although a circuit split already surrounded that question, the Fourth Circuit, rather than ask for an advocate's brief on the issue, only asked the Government to respond and then decided the statutory question on its merits. Defense counsel then apparently continued to believe the issue was "frivolous" - the resulting cert. petition was filed pro se by the defendant. Thus - at least as it appears from the court of appeals' opinion - the statutory issue is now before the Supreme Court (based on a circuit split) without defense counsel below ever having provided any advocacy on the issue. I wonder if this has this ever happened before? In the Burgess v. US petition (granted Dec. 7), isn’t there a somewhat ironic Anders issue. At least from the opinion, it looks like the statutory interpretation issue related to the ability of the defendant’s prior conviction to be treated as a prior “felony” was raised only by an Anders submission. While defense counsel raised the question at sentencing, in the court of appeals he filed an Anders submission suggesting that any appeal was frivolous but noting the existence of the statutory interpretation question. Although a circuit split already surrounded that question, the Fourth Circuit, rather than ask for an advocate’s brief on the issue, only asked the Government to respond and then decided the statutory question on its merits. Defense counsel then apparently continued to believe the issue was “frivolous” – the resulting cert. petition was filed pro se by the defendant. Thus – at least as it appears from the court of appeals’ opinion – the statutory issue is now before the Supreme Court (based on a circuit split) without defense counsel below ever having provided any advocacy on the issue. I wonder if this has this ever happened before?

]]>