73 The Alabama Lawyer 244 (2012). THE APPELLATE CORNER.

• Author: By Marc A. Starrett

Alabama Bar Journal

2012.

73 The Alabama Lawyer 244 (2012).

THE APPELLATE CORNER

THE APPELLATE CORNER By Marc A. Starrett Marc A. Starrett is an assistant attorney general for the State of Alabama and represents the state in criminal appeals and habeas corpus in all state and federal courts. He is a graduate of the University of Alabama School of Law. Starrett served as staff attorney to Justice Kenneth Ingram and Justice Mark Kennedy on the Alabama Supreme Court, and was engaged in civil and criminal practice in Montgomery before appointment to the Office of the Attorney General. Among other cases for the office, Starrett successfully prosecuted Bobby Frank Cherry on appeal from his murder convictions for the 1963 bombing of Birmingham's Sixteenth Street Baptist Church.

Decisions of the United States Supreme Court-Criminal

Federal Habeas Corpus Procedure; Sua Sponte Review of Petition's Timeliness

Wood v. Milyard, No. 10-3335, 2012 WL 133255S (Apr. 24, 2012] As is the case with federal district courts, the federal appellate courts may sua sponte consider the timeliness of a habeas petition under the Antiterrorism and Effective Death Penalty Act ("AEDPA"]. However, the Tenth Circuit Court of Appeals abused its discretion in finding the petition untimely in this case, because the State of Colorado explicitly waived that statute of limitations defense.

Search and Seizure; Search of Detainee upon Incarceration

Florence v. Bd. of Chosen Freeholders of County of Burlington, 132 S. Ct. 1510 (2012]

A detainee-here, a man held following a traffic stop due to an outstanding bench warrant-may be "strip-searched" upon entry into a jail's general population, regardless of the seriousness of offense resulting in that incarceration. Concerns raised by amici regarding the invasiveness or potential abuse resulting of such searches were rejected as "not implicated on the facts of this case" and thus deemed "unnecessary" for the Court's consideration.

Sentencing; Consecutive Federal and State Sentences

Setser v. U.S., 132 S. Ct. 1463 (2012]

The federal district court did not abuse its discretion in ordering the defendant's federal sentence to run consecutively with a state court sentence.

Ineffective Assistance of Counsel; Plea Negotiations

Lafler v. Cooper, 132 S. Ct. 1376 (2012]

The Court affirmed the Sixth Circuit Court of Appeals' decision that a state defendant's trial counsel rendered ineffective assistance under Strickland v. Washington, 466 U.S. 668 (1984). Trial counsel advised the defendant, charged with assault with intent to murder and other related offenses, to reject a proposed plea agreement on the erroneous grounds that the prosecution could not prove his intent because he shot his victim below the waist. The Court rejected the Court of Appeals' judgment, however, to the extent it ordered specific performance of the rejected agreement. The Court instead directed the state to reoffer the proposed plea agreement, and, if the defendant accepts the offer, the trial court may then accept or reject the plea agreement.

Ineffective Assistance of Counsel; Plea Negotiations

Missouri v. Frye, 132 S. Ct. 1399 [2012] In another Strickland/plea agreement case, the Court held that the defendant's trial counsel rendered ineffective assistance by failing to communicate the prosecution's plea offer before the offer expired. It remanded for the state court to review whether, under state law, the agreement could have been canceled by the prosecution or rejected by the trial court.

Federal Habeas Corpus Procedure; Ineffective Assistance of Counsel in Post-Conviction Proceedings; Cause for Procedural Default

Martinez v. Ryan, 132 S. Ct. 1309 [2012] The Court held that ineffective assistance of counsel during state court...