Seeking Smack down, new cert petition assails “minimal indicia of reliability” standard at sentencing
In this post more than seven years ago, I flagged a decision by the Supreme Court of Delaware, Smack v. Delaware, No. 601 (Del. Oct. 11, 2017) (available here), in which the court rules that a sentencing judge complied with due process when relying on information meeting a “minimal indicium of reliability” standard to resolve a disputed sentencing factor. Earlier this week, I was contacted by the defense attorney in that case, who is now bringing the defendant’s 2254 action to the US Supreme Court. I offered to here post the new Smack cert petition (which was filed last month and can be downloaded below), as well as the lawyer’s brief overview of the issue and his request for assistance:
Petitioner Smack advances that the Due Process Clause of the 14th Amendment requires that disputed facts raised at a state court sentencing hearing, and considered by a sentencing judge when imposing a sentence, must be proven by a preponderance of the evidence standard; essentially, Smack asserts that disputed facts must be demonstrated to be true and accurate based on a probability, being probably true. The Delaware state court sentencing judge held that “a minimal indicia of reliability” is the burden of proof to establish the disputed facts, allowing the judge to consider in addition to the six counts which Smack plead guilty to, all of the not-admitted, not-plead-to 74 counts of the indictment when issuing a sentence of 14 years of incarceration. This finding was upheld by the Delaware Supreme Court, the District Court for the District of Delaware, and the Third Circuit Court of Appeals.
Smack consistently argued at all stages that a trilogy of three United States Supreme Court cases provide the support for his position that the United States Constitution, through its 14th amendment, requires state sentencing courts to use the preponderance of the evidence standard as the burden of proof to resolve disputed facts raised in a sentencing hearing. Those three cases are McMillan v. Pennsylvania, 477 U.S. 79 (1986), Nichols v. United States, 511 U.S. 738 (1994) and United States v. Watts, 519 U.S. 148 (1997). Smack advanced in the certiorari petition that the U.S. Supreme Court’s recent decision in Andrew v. White, 145 S. Ct. 75 (2025) is a roadmap that helps one determine if a United States Supreme Court opinion that “relies on a legal rule or principle to decide a case, [whether] that principle is a ‘holding’ of the Court for purposes of AEDPA” to enable a court to determine if a principal is clearly established federal law. Smack noted that the instructive guidance in Andrew is extremely helpful in resolving the dilemma as Smack’s argument is a layered analysis that requires one to properly interpret the noted trilogy of cases to reach the conclusion that the preponderance of the evidence must be the burden of proof that a sentencing court must use to resolve disputed facts raised at a sentencing hearing and relied upon by the Court when determining a sentence. A compelling part of the Supreme Court’s reasoning in Andrew is that it recognizes that clearly established federal law satisfies the definition of clearly established “even though it arises out of a ‘thicket of . . . jurisprudence’ and lacks ‘precise contours’” and even if a specific case has not been previously relied upon to decide the question at hand as “general constitutional rule already identified in the decisional law may apply with the obvious clarity to the specific conduct in question.”
Counsel for Smack — attorney Christopher Koyste, a former assistant federal public defender who can be reached at ckoyste @ koyste.com — is looking for an organization or Law School that has a U.S. Supreme Court Clinic to enter an appearance within the next three weeks before the case is distributed for conference at the Supreme Court. Counsel does not mind letting the organization take the lead attorney position in the case so that the organization can perform the oral argument if case reaches that stage.
Prior related post: