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In a case of importance to state and federal prisoners who claim they have been unjustly convicted or sentenced, the U.S. Supreme Court has agreed to decide whether a convicted South Florida drug dealer should be allowed to argue to a judge that he deserves a new trial. Michael Donald Dodd, jailed since his arrest in 1993, thinks he should get a new day in court based upon a 1999 Supreme Court ruling that fundamentally changed the way juries decide cases like his. Before Dodd can argue his case, though, the high court must decide whether he filed his challenge before the one-year time limit for doing so had expired. The question before the justices is technical. When did the one-year statutory limitation on filing such motions start to run — on the day the Supreme Court ruled in 1999, or three years later when that ruling was determined to be retroactive to cases like Dodd’s? A victory for Dodd, who takes the latter position, would lead to a fresh examination by the courts of whether he is actually guilty of the key charge that he was convicted of: engaging in a continuing criminal enterprise. More broadly, though, a Dodd win would give all prisoners more time to seek justice after the Supreme Court issues such watershed rulings. Assistant Federal Public Defender Janice L. Bergmann, Dodd’s Fort Lauderdale-based counsel, will argue to the justices on Dodd’s behalf in March on a date that’s yet to be set. Her boss, Federal Public Defender Kathleen M. Williams of Miami, will accompany her to Washington, D.C. Lower courts, including Miami U.S. District Judge Federico A. Moreno and the 11th U.S. Circuit Court of Appeals in Atlanta, have dismissed Dodd’s claim as time-barred. But those rulings are the minority opinion among the nine U.S. appellate circuits that have weighed in on the matter. Had Dodd’s claim been heard in the 3rd, 4th, 6th, 7th or 9th Circuit — respectively in Philadelphia, Richmond, Cincinnati, Chicago and San Francisco — it would have been deemed timely and heard on the merits. “The government has conceded that my client didn’t get the jury instruction on the matter that he was entitled to,” Bergmann said. “They have not conceded whether that would have made any difference.” Conflict in the courts arose out of what Dodd’s petition calls “the convoluted language” of the statute of limitations provisions contained in the Antiterrorism and Effective Death Penalty Act of 1996. The resulting schism in the nation’s U.S. appeals courts, acknowledged by both sides, prompted even the Department of Justice — while arguing vigorously in support of the 11th Circuit’s determination as to when the time limit began to run — to urge the justices to take the case to clear up the confusion about how much time prisoners should have to file such challenges. The Supreme Court does not explain why it accepts or rejects cases on appeal, but the deep circuit split was apparently the basis for their decision early last month to grant Dodd’s petition for a writ of certiorari. A three-attorney team led by acting U.S. Solicitor General Paul D. Clement represents the Justice Department. The other team members are Assistant Attorney General Christopher A. Wray and DOJ attorney Elizabeth A. Olson. A spokesman for the Justice Department declined comment. But Fort Lauderdale, Fla., appeals specialist and Nova Southeastern University law professor Bruce S. Rogow said the case is illustrative of the “cramped view” taken by politicians and judges as to how prisoner petitions should be treated. “In the long run, wouldn’t it be better to accept all the claims on the merits? Most are probably without merit and could be quickly addressed,” Rogow said. “Instead, compliments of Congress, the courts torture themselves with trying to figure out when time limits run.” Section 2255 of the U.S. Code allows prisoners to file motions attacking their convictions or sentences on constitutional or other grounds — such as prosecutorial misconduct — that are outside the record of their case. Dodd, without benefit of an attorney, filed his motion in April 2001, arguing his Sixth Amendment and due process rights were violated because his trial jury was not instructed by Judge Moreno that it had to reach unanimous agreement on each of the drug violations that comprised the continuing criminal enterprise charge. Dodd, described by the government as a leader of the Spangler Posse, a far-flung Jamaican drug gang based in New York in the late 1980s and early 1990s, was convicted in 1995 of participating in a continuing criminal enterprise, marijuana conspiracy and 16 counts of using a passport obtained by a false statement. He was acquitted on a cocaine conspiracy count. Dodd was given 30 years in prison, a sentence driven by a 20-year mandatory minimum term for CCE. Dodd’s motion was rooted in a Supreme Court decision issued two years earlier in Richardson v. U.S. In that ruling, the court held that in order to convict someone of CCE, a jury must unanimously agree not only that a defendant engaged in a continuing series of violations, but also that he actually committed each of the alleged individual violations necessary to make up the series of crimes. The jury that convicted Dodd made no such specific findings about the CCE violations, court papers say. By the time Richardson was decided in 1999, Dodd’s direct appeal proceedings were over and he no longer had counsel. According to Dodd’s petition, Dodd had intended to file his 2255 motion by himself soon after Richardson was decided, but was “thwarted” when he was transferred out of his regular federal prison cell in Talladega, Ala., and “away from his legal files” to South Florida in response to a government subpoena. Dodd was returned to Talladega in September 2000. He filed his pro se motion attacking his conviction seven months later. In October 2001, now retired Miami U.S. Magistrate Charlene Sorrentino recommended to Moreno that Dodd’s motion be dismissed as untimely. Moreno agreed, and on April 16, 2004 was upheld by 11th Circuit appeal judges Gerald Bard Tjoflat, Stanley Marcus and R. Kenton Musgrave, a visiting judge from the U.S. Court of International Trade. Dodd, who gained representation by the public defender’s office during the appeal, asserts in his Supreme Court petition that the 11th Circuit sought to reason out Congress’ intent about the statute of limitations in a selective way that allowed it to “legislate judicially the policy result it desired.” Still, the 5th Circuit in New Orleans has taken the same position. Appeals judges on the 2nd Circuit in New York and the 8th Circuit in St. Louis have expressed agreement with their southern brethren in nonbinding opinions. The split that the Supreme Court will now resolve centers on the circuits’ differing interpretations of murky wording in the law that tried, but failed to define when the one-year limitation period should apply for filing 2255 motions. Dodd’s petition argues that if the 11th Circuit’s rule is allowed to stand, it will trigger a flood of unnecessary motions from large numbers of prisoners seeking to protect their possible interests whenever the court issues potentially sweeping rulings that may or may not apply to them. “The problem with the 11th Circuit’s ruling is that it sets up a kind of procedural maze, almost like a Catch-22,” Bergmann said. Bergmann explained that motions filed within a year may proceed, but until the Supreme Court’s ruling establishing a new right is made retroactive — a legal process that can take years — petitioners aren’t eligible to obtain any actual relief. And even if the potentially helpful Supreme Court decision is later found to be retroactive, petitioners could be out of luck. Judges in the interim would likely have declared their motions untimely and the “arcane” rules that govern the filing of 2255 motions would preclude filing a subsequent legal attack, Bergmann said. “This is a one-shot deal,” she said. To Rogow, it is repugnant that prisoners’ arguable claims of innocence could go unheard because of the arbitrary demands of the legal process as currently endorsed by the 11th Circuit. “The bottom line here is meanness,” said Rogow. “All is justified in the name of finality. But finality is not as important as fairness.”

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