Monday, January 07, 2008

Cert Denied in Pineda-Arrellano; What Now of Challenges to Almendarez-Torres in the Fifth Circuit?

Today the Supreme Court denied cert, without comment, in Pineda-Arrellano v. United States. As those of you who handle lots of illegal reentry cases know well, Pineda-Arrellano is the case in which a Fifth Circuit panel opined, in dicta, that a challenge to Almendarez-Torres no longer serves as a legitimate basis for appeal.

This is a disappointing development, as it leaves defense counsel in an untenable position. On the one hand, appointed counsel are obligated to pursue non-frivolous issues for a client who exercises his right to appeal, and a majority of the justices on the Supreme Court have said at one time or another that Almendarez-Torres was incorrectly decided and should be overruled. On the other hand, counsel who carry out this obligation have to worry about lost credibility at best, and sanctions at worst. We'll just have to see how things pan out from this point forward.

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