Pubdate: Sun, 20 Jan 2008
Source: Charlotte Observer (NC)
Copyright: 2008 The Charlotte Observer
Contact:  http://www.charlotte.com/observer/
Details: http://www.mapinc.org/media/78
Author: Michael Doyle, McClatchy Newspapers
Bookmark: http://www.mapinc.org/find?199 (Mandatory Minimum Sentencing)

INMATE'S PETITION MAY ALTER SENTENCING

Ex-S.C. Drug Dealer Has High Court Re-Examining Guidelines on Felonies

WASHINGTON -- Keith Burgess is an admitted former S.C. drug dealer 
and that rarest of jailhouse lawyers: a successful one.

A 30-year-old high school dropout who later earned his GED, Burgess 
persuaded the Supreme Court to hear his appeal. Working with a fellow 
inmate, he handcrafted a heartfelt petition that could change how 
some criminals are sentenced.

"He has accomplished what tens of thousands of attorneys across the 
country have not been able to," said Stanford Law School professor 
Jeffrey Fisher, who now represents Burgess. "I told him he should 
really be proud of himself." The Supreme Court will consider 
arguments and render a decision later this year. Burgess admits that 
he sold 240 grams of crack in a parking lot outside a Florence, S.C., 
shopping mall.

He contests his 156-month sentence, however. His case turns on 
whether a prior one-year prison term counts as a felony that triggers 
a lengthy sentence after his second conviction.

Just getting this far was, for Burgess, a one-in-a-thousand shot at 
best. Literally. He filed his Supreme Court petition last year as an 
"in forma pauperis" case so that he wouldn't have to pay the court's 
standard $300 filing fee. In forma pauperis, a Latin phrase meaning 
"in the form of a pauper," is a legal exemption granted by judges to 
poor people so that they don't have to pay court costs. Burgess 
reported having $0 in assets.

During the court's 2006-07 term, 7,186 in forma pauperis petitions 
were considered. Of these, the court accepted seven for review. 
During the 2005-06 term, the court heard one out of the 6,533 in 
forma pauperis petitions considered.

Fisher and his students at Stanford's Supreme Court Litigation Clinic 
are now finishing a brief in Burgess' case, due Tuesday. Fisher's 
oral argument in late March will be his eighth formal appearance 
before the court, where he previously clerked for Justice John Paul 
Stevens. In other words, it's familiar territory for Fisher. For 
Burgess, it's a world apart.

A Florida native, Burgess moved to South Carolina with his family 
after his father took off. He eventually served one year on state 
drug charges. Following his release, he was attending community 
college when he was arrested on federal charges. He pleaded guilty, 
and prosecutors said he offered them "substantial assistance."

Nonetheless, prosecutors cited his previous jail term in seeking a 
20-year mandatory minimum sentence. The judge opted instead to jail 
Burgess for 156 months (13 years).

Burgess argues that state law hadn't specifically defined his initial 
crime as a felony, so it shouldn't count in sentencing. The Bush 
administration says it should count, because felonies are customarily 
defined as crimes punished by sentences of one year or more.

Different appellate courts disagree on the question, causing the kind 
of circuit court split that can prompt Supreme Court review. But "the 
conflict is extremely limited," Solicitor General Paul Clement 
cautioned in a legal brief. "This issue does not arise often ... and, 
in any event, this conflict is of very recent vintage."

Burgess and his inmate legal assistant, Michael Ray, countered 
emotionally. "Try selling this argument to the poor souls like the 
Petitioner, who are today sitting in federal custody with twenty-year 
mandatory minimums hanging over their heads," the inmates wrote.

Fisher, who was appointed after the court accepted Burgess' petition, 
acknowledged that "there was no way an experienced lawyer" would have 
written so fervently. But perhaps, Fisher said, it was precisely this 
human voice that persuaded the justices to give Burgess another day 
in court. Excerpt from the written argument In their petition to the 
Supreme Court, Keith Burgess (the Petitioner) and an inmate law 
clerk, Michael Ray, respond to a brief filed by the Bush 
administration (the Respondent). They argue that had Burgess been 
sentenced in the District of Columbia instead of South Carolina, he 
would not have faced a minimum 20-year term.

"Hindsight being 20-20, we are here before the Supreme Court today, 
seeking to right this injustice, not only for the Petitioner, but for 
the fair and equal treatment for all of those criminal defendants who 
come after him. ... "In the interest of the preservation of justice, 
review of this case is certainly warranted at this time. It is 
crystal clear, that had this Petitioner been fortunate enough to pass 
through the District of Columbia, versus the District of South 
Carolina, the twenty-year enhanced penalty would not have applied. 
The Respondent justifies this calamity by stating simply that not 
enough folks are effected for it to really matter, therefore the 
Petitioner is simply subject to the fallout, due to his being in 
(literally) the wrong district, at the wrong time. This argument must fail." 
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