Pubdate: Fri, 18 Jan 2008
Source: State, The (SC)
Copyright: 2008 The State
Author: Michael Doyle, McClatchy Newspapers
Bookmark: (Mandatory Minimum Sentencing)


Inmate Wins Himself a Hearing With Emotional Request

WASHINGTON -- Keith L. Burgess is a one-time South Carolina 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 L. Fisher, who now represents Burgess. "I told him he should 
really be proud of himself."

The Supreme Court will consider arguments and render a final decision 
later this year.

Burgess admits that he sold 240 grams of crack cocaine in a parking 
lot outside a Florence 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.

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 the poor 
so that they don't have to pay court costs. Burgess reported having 
assets totaling $0.

During the court's 2006-2007 term, 7,186 in forma pauperis petitions 
were considered. Of these, the court accepted only seven for review. 
During the 2005-2006 term, the court heard one out of the 6,533 in 
forma pauperis petitions considered.

The justices can grow weary of repeated in forma pauperis petitions. 
Former Black Panther leader and convicted murderer Ruchell Cinque 
Magee, for instance, submitted so many petitions from his cell at 
Corcoran State Prison near Fresno, Calif., that the Supreme Court 
eventually forced him to start paying full costs.

But, sometimes, these petitions can turn the law in new directions.

Last year, for instance, an impoverished ex-con named Bruce Brendlin 
in California's Sacramento Valley won a unanimous court decision 
ensuring that car passengers enjoy the Fourth Amendment's protections 
against illegal search and seizure.

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, a Duke University 
and University of Michigan Law School graduate with an academic 
pedigree common among Supreme Court attorneys. For Burgess, it's a world apart.

Convict Won't Be There for Case

After starting off at Estill Federal Correctional Institution, a 
medium-security prison west of Charleston, Burgess has been relocated 
to a federal facility in Brooklyn. He won't be getting time off to 
see the Supreme Court arguments.

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. After 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.

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, since 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 R. Ray, countered emotionally.

"Try telling that argument to the poor souls like the petitioner, who 
are today sitting in federal custody with 20 year mandatory minimums 
hanging over their head," 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. 
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