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Petitions of the week

In New Mexico prison killing, a lingering question over jurisdiction

A courier drops off a package at the Supreme Court

The Petitions of the Week column highlights a selection of cert petitions recently filed in the Supreme Court. A list of all petitions we’re watching is available here.

Five years ago, the Supreme Court ruled that pleading guilty to a crime does not prevent a defendant from arguing that the law criminalizing their conduct is unconstitutional. This week, we highlight cert petitions that ask the court to consider, among other things, an issue that decision left open: Under what circumstances can someone found guilty at trial, instead of in a plea deal, attack the constitutionality of the law under which they were convicted?

Javier Mollina was murdered in a New Mexico prison by Carlos Herrera, Daniel Sanchez, and Anthony Ray Baca. All four allegedly belonged to Syndicato de Nuevo Mexico, a prison gang. Herrera, Sanchez, and Baca were convicted of violating a provision of the Violent Crimes in Aid of Racketeering Act, which makes it a federal crime to commit murder to (as relevant here) enhance their position in a criminal or racketeering “enterprise” engaged in interstate commerce – in this case, SNM.

After the trial was over, Herrera and his co-defendants argued that their convictions were invalid because VICAR exceeds Congress’ power to regulate interstate commerce. The law criminalizes conduct with no effect on interstate commerce, they argue, merely because of its connection to a gang whose activities have economic ramifications across state lines. A federal district court rejected their challenge and upheld the convictions.

On appeal, the government countered that the defendants had waived their right to challenge VICAR’s constitutionality by not making the argument before trial.

The U.S. Court of Appeals for the 10th Circuit agreed. Although the federal rules governing criminal procedure allow criminal defendants to challenge a federal court’s authority to hear their case at any time, they must object to any “defects” in the prosecutor’s case before it goes to trial. In the 10th Circuit’s view, the challenge by Herrera and his co-defendants to VICAR’s constitutionality falls into the latter category because, if successful, it would mean only that the government could not prosecute them under the law, not that the court lacked the power to decide their case at all.

In Herrera v. United States, the three men ask the justices to reinstate their constitutional challenge. When federal officials hale someone into court and obtain a conviction against them under an unconstitutional law, that is a jurisdictional defect, they argue, not a problem with the government’s case. They insist that questioning the constitutionality of the statute under which they are ultimately convicted is precisely the type of argument that criminal defendants should not have to raise before they stand trial.

A list of this week’s featured petitions is below:

Herrera v. United States
Issue: Whether, under Federal Rule of Criminal Procedure 12, petitioners were permitted to bring a facial constitutional challenge to their statute of conviction under the commerce clause in Article I, Section 8 of the Constitution by filing a post-trial motion rather than a pretrial motion.

K.M. v. Adams
Issue: Whether the Individuals with Disabilities Education Act’s requirement that administrative remedies be exhausted before a judicial challenge under the act may be brought is jurisdictional, or rather a claim-processing rule that must be raised as an affirmative defense that may be waived.

Department of Agriculture Rural Development Rural Housing Service v. Kirtz
Issue: Whether the civil-liability provisions of the Fair Credit Reporting Act unequivocally and unambiguously waive the sovereign immunity of the United States.

Fox v. Campbell
Issues: (1) Whether the Fourth Amendment standard for evaluating unreasonable force claims established in Graham v. Connor or the Fourteenth Amendment standard for evaluating actions of law enforcement announced in County of Sacramento v. Lewis applies when law enforcement shoots but misses the intended target and an unknown occupant of the residence; (2) whether the U.S. Court of Appeals for the 6th Circuit departed from this court’s precedents by denying qualified immunity to petitioner and concluding that respondents were seized when petitioner fired shots but missed; (3) whether, if the Fourth Amendment standard applies, the 6th Circuit properly applied this court’s decision in Graham in concluding that petitioner was not entitled to qualified immunity when he fired shots in self-defense and not to apprehend a suspect; and (4) whether the 6th Circuit erred in determining that it was clearly established by precedent not from this court that respondents had been seized and petitioner used excessive force in violation of the Fourth Amendment.

Foster v. Wearry
Issues: (1) Whether preparing witnesses to bolster existing evidence intended for use at the criminal trial, after probable cause has been determined, is a function “intimately associated with the judicial phase of the criminal process” and “in presenting the State’s case” such that absolute immunity applies under Imbler v. Pachtman and its progeny; and (2) whether the absolute immunity that applies to prosecutors for conduct under the “functional approach” embraced in Imbler extends to law enforcement officers performing the same conduct while assisting in the prosecution of the criminal charge.

Recommended Citation: Kalvis Golde, In New Mexico prison killing, a lingering question over jurisdiction, SCOTUSblog (Mar. 25, 2023, 12:28 PM),