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On his first trip to the U.S. Supreme Court, Courtland L. Reichman of King & Spalding won everything but relief for his client. All nine justices said on Monday that a federal appeals court wrongly treated claims that Reichman’s client, Robert Johnson Jr., was sentenced unfairly to 15 years in prison for a drug charge that normally calls for a seven-year sentence. Johnson received eight additional years on a federal drug conviction because of prior state charges that qualified him as a career offender. Several years later, Johnson got the state convictions vacated. But in a 5-4 decision that splintered the high court’s usually reliable liberal and conservative alliances, a majority held that Johnson waited too long to bring his otherwise justifiable arguments. That delay meant the court refused to throw out the extra years of the sentence. Reichman, an intellectual property lawyer who took Johnson’s case as a pro bono project, called the decision “a troubling indictment” of what happens when criminal defendants don’t have lawyers. The high court majority was aware that Johnson represented himself throughout key parts of his case. But, Justice David H. Souter added, “we have never accepted pro se representation alone or procedural ignorance as an excuse for prolonged inattention” to a case. Souter was joined by Chief Justice William H. Rehnquist and Justices Sandra Day O’Connor, Clarence Thomas and Stephen G. Breyer. Justices Anthony M. Kennedy, John Paul Stevens, Antonin Scalia and Ruth Bader Ginsburg dissented, with Kennedy writing that the majority decision was “without full appreciation for the dynamic of the criminal process and its demands on counsel.” The case is Johnson v. United States, No. 03-9685. NO LAWYER Reichman said the problem started in 1989 when Johnson pleaded guilty to drug charges in Cook County — without legal representation. Five years later, Johnson pleaded guilty to a federal cocaine-distribution charge. Despite being represented by an appointed lawyer, Johnson was sentenced to 15 years in prison — eight more than usual because the 1989 state convictions made him a “career offender.” Johnson appealed the sentence to the 11th U.S. Circuit Court of Appeals, arguing that his state conviction should be considered invalid because he did not have a lawyer at the time. The 11th Circuit in 1995 rejected the appeal but suggested in a footnote that if a state court vacated the 1989 convictions, Johnson could return to federal court to challenge his 15-year sentence. Representing himself from prison, Johnson in 1998 filed a state habeas corpus action against his state conviction. In 2000, the state habeas court agreed that Johnson should have had a lawyer and threw out the convictions that triggered his enhanced sentence. Four months later, Johnson brought a federal habeas corpus action challenging his federal sentence. It was denied by a district court. At this time Reichman, who said he sought appointments for pro bono cases as a civic duty and a way to improve his skills, and another King & Spalding lawyer, B. Warren Pope, began representing Johnson. Despite having professional help, Johnson lost a 2-1 decision of the 11th Circuit — with Judge Susan H. Black and visiting 3rd Circuit Senior Judge Walter K. Stapleton outvoting Senior Judge Paul H. Roney. At issue was how the court interpreted the 1996 Antiterrorism and Effective Death Penalty Act, which sharply limits the ways federal inmates can challenge their convictions and sentences. One section said that inmates had one year to file a habeas action from “the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.” The 11th Circuit majority rejected Johnson’s claim that the state court decision vacating his state convictions was a “fact” that could be discovered and begin the one-year during which he could bring a federal habeas action. Johnson v. United States, 340 F.3d 1219 (2003). SPLIT COURT At the Supreme Court, the justices agreed with Johnson that the state court decision vacating his previous convictions is the “fact” that starts the one-year clock. But Souter wrote for the majority that Johnson had to show “due diligence in seeking the order” from the state court — which Johnson did not do, because he waited 21 months from the time his federal conviction was finalized, the majority held. Kennedy’s dissent said that the due diligence requirement — as put forth by Souter and the majority — “cannot be found in the statute’s design or in its text.” Kennedy said the diligence requirement meant that Johnson had to be diligent once he found out about the state court’s decision to throw out his convictions, while Souter and the majority said Johnson should have moved more quickly after he was sentenced. Said Reichman of his client, “The point is he didn’t have a lawyer” until it was too late. State law does not entitle indigent convicts to a lawyer to challenge their convictions or sentences beyond an original direct appeal — which Johnson did not pursue for his 1989 conviction. The federal government was represented by the Department of Justice’s Office of the Solicitor General, but no comment could be obtained by press time. F. Maxwell Wood, the U.S. attorney for the Middle District of Georgia, which handled Johnson’s federal prosecution, said he understood the predicament Johnson was in. “But the courts are charged with drawing the line somewhere,” he added.

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