Justices Close Session With Forlorn Dissents

     WASHINGTON (CN) - After months of silence from the Supreme Court with respect to their denials of certiorari, five justices capped off the term with some dissents and explanations.
     With respect to one denial, Justice Stephen Breyer likened a petitioner's situation to that of the recently decided case of Trevino v. Thaler.
     Though the court had given Carlos Trevino a shot at habeas relief last month, it found Thursday that there is no precedent to relieve Elrick Gallow, who is serving a 30-year term for kidnapping and battery.
     Gallow has claimed that he received ineffective assistance of counsel both at his criminal trial and during his first state postconviction proceeding.
     The inmate allegedly relied on bad legal advice to plead guilty, and "his trial counsel was subsequently disbarred," Breyer wrote, joined by Justice Sonia Sotomayor. "When Gallow, represented by a different attor­ney, filed for state postconviction relief, his new attorney failed to bring forward 'any admissible evidence' to sup­port his claim of ineffective assistance of trial counsel. Namely, in state court Gallow's habeas counsel repeatedly neglected to subpoena the trial counsel, which led the state court to reject the counsel's affidavit on state evidentiary grounds. This meant that Gallow was left with a claim that had virtually no evidentiary support."
     Breyer added that "a claim without any evidence to support it might as well be no claim at all."
     "In such circumstances, where state habeas counsel deficiently neglects to bring forward 'any admissible evidence' to support a substantial claim of ineffective assistance of trial counsel, there seems to me to be a strong argument that the state habeas coun­sel's ineffective assistance results in a procedural default of that claim," he continued. "The ineffective assistance of state habeas counsel might provide cause to excuse the default of the claim, thereby allowing the federal habeas court to con­sider the full contours of Gallow's ineffective-assistance claim."
     The 5th Circuit blocked Gallow's attempt for habeas relief in August 2012, and the Supreme Court refused Thursday to grant Gallow a writ of certiorari.
     Breyer said, however, that there may have been room for the 5th Circuit to consider the affidavit and testimony supporting Gallow's claim.
     "I recognize that no United States Court of Appeals has clearly adopted a position that might give Gallow relief," he added. "But I stress that the denial of certiorari here is not a reflection of the merits of Gallow's claims."
     Two other justices had harsh words for their colleagues with respect to their orders to resentence Pennsylvania inmate Ricardo Marrero.
     The court remanded Marrero's case Thursday in light of its decision last week in Descamps v. United States.
     In Descamps, the justices reluctantly ordered a lighter sentence for a repeat offender because he was convicted under a California law that is too generic.
     Justice Samuel Alito, joined by Justice Anthony Kennedy, noted that applying this case to Marrero shows "that the court's elaboration of its 'modified categorical' approach has completely lost touch with reality."
     Marrero had been sentenced under the Armed Career Criminals Act in part because his record includes a past conviction for simple assault under Pennsylvania law. The Supreme Court deemed that statute too generic to support "career criminal" sentencing, however, because it applies to a defendant who "attempts to cause or intentionally, knowingly or recklessly causes bodily injury to another."
     Alito and Kennedy countered that the court need only look to Marrero's statement in pleading guilty for evidence that the defendant admitted to "intentional or at least knowing conduct and not simply reckless conduct."
     "In sending this case back to the Third Circuit for a second look, this court is apparently troubled by the pos­sibility that petitioner was convicted merely for reckless conduct, and it is of course true that he did not say expressly that he intentionally or knowingly grabbed Mrs. Marrero by the neck or that he intentionally or knowingly attempted to drag her up a flight of stairs," Alito wrote. "The court may be entertaining the possibility that what petitioner meant was that he grabbed what he believed to be some inani­mate object with a neck - perhaps a mannequin named Mrs. Marrero - and attempted to drag that object up the steps. In that event, his conduct might have been merely reckless and not intentional or knowing.
     "The remand in this case is pointless. I would deny the petition and therefore dissent."
     Justice Clarence Thomas wrote the final dissent Thursday, saying the court should have taken up a dismissed wrongful death action filed by the mother of a slain service member.
     Eric Lanus, a U.S. Coast Guard fireman's apprentice, had been found dead in his bedroom at Naval Air Station Key West. Lanus had apparently left the stove on when he went to bed, and the heat ignited a fire that eventually engulfed the ground floor of the apartment.
     The 11th Circuit had affirmed dismissal of Linda Lanus' suit under the Feres doctrine, a tenant of the Federal Tort Claims Act that bars lawsuits brought by soldiers against the United States and its employees for military service-related injuries.
     Justice Thomas said he would grant the petition to reconsider Feres' exclusion of claims by military personnel from the scope of the FTCA.
     "In Feres, the court held that 'the government is not liable under the [FTCA] for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service,' Thomas wrote. "There is no support for this conclusion in the text of the statute, and it has the unfortunate consequence of depriving servicemen of any remedy when they are injured by the negligence of the government or its employees. ... At a bare minimum, it should be reconsidered."
     Thomas said taking up Lanus' case would have done just that.