Jailed drug dealer gets a chance with the Supreme Court

McClatchy NewspapersJanuary 18, 2008 

Stanford Law School Professor Jeffrey L. Fisher is representing Keith Burgess in front of the Supreme Court.

MICHAEL JOHNSON / MCT

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, 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. 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 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.

Sometimes, the justices 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.

"It is my suspicion," Sacramento-based attorney Elizabeth Campbell advised the court, "that Mr. Brendlin may be currently living on the street."

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.

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. 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.

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.

McClatchy Newspapers 2008

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