Federal Criminal Justice Reform… Maybe in Small Steps – Update for November 12, 2026

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

BOP REFORMS ISSUES FSA HABEAS RESOURCE

A nonprofit named BOP Reform reports that it has a tracker listing time-credit and prerelease-placement rulings, organized by district and circuit, with links to the rulings. While I have not yet explored it in detail, it appears to be an excellent resource;  Your people can find it at

https://bopreform.org/first-step-act-habeas-tracker-by-district/

WHAT THE BLUE TSUNAMI MAY WASH ASHORE

Unless you were living under a rock last week, you noted the unprecedented midterm election results that flipped both the House and Senate, putting Democrats in control.

The “Blue Tsunami” that swept Democrats into power on November 3 will likely mean more prominent debates on criminal justice issues over the next two years, although with crime rates down, it may be a lower legislative priority.

Both the Senate and House Judiciary Committees will have new leadership. In the House, Rep. Jamie Raskin (D-MD) is likely to replace the do-nothing Rep. Gym Jordan (D-OH) (the newly-selected House Minority Leader) and whose committee produced very little legislation on criminal justice while being focused on punishing Trump’s enemies.

In the Senate, Sen Sheldon Whitehouse (D-RI) is in line to replace Chairman Chuck Grassley (R-IA), a staunch Trump supporter but a forward thinker on criminal justice reform. Grassley and the retiring Sen Richard Durbin (D-IL), while political adversaries, joined forces on pushing the First Step Act through the Senate and have co-sponsored a number of other measures that have not made it to a vote.

Among other issues, Whitehouse is likely to support legislation authorizing more lawsuits against federal law enforcement agencies for abuses by officers.  Another important issue for Democrats is the Bureau of Prisons.  This year, four House Democrats demanded that the BOP address the agency’s “persistent, unsafe conditions” and “pervasive shortage of critical staff,” driven partly by corrections officers quitting in favor of higher-paying jobs at Immigration and Customs Enforcement.

The Democrats’ questions on prisons followed a ProPublica investigation finding that BOP workers were being lured away by the $50,000 starting bonus and higher pay at ICE.

The new Speaker of the House will likely be Hakeem Jeffries (D-NY), one of the principal backers of the FSA in the House in 2018.

Writing in his Sentencing Law and Policy blog last week, Ohio State University law professor Doug Berman said,

For many reasons, I doubt the new Democratic governing majorities will prioritize criminal justice issues early in the new Congress. But I am hopeful (though not really optimistic) that any number of “small” sentencing reforms could provide the basis for bipartisan legislation in the next two years. In particular, I like to imagine reform bills which have previously gotten broad bipartisan support in the recent past — such as the EQUAL Act which would fully eliminate the crack/powder sentencing disparity in federal law and the proposal to statutorily prohibit the use of acquitted conduct in federal sentencing — could and should be able to garner broad support in the next Congress.

Criminal Justice Journalists, Will Democratic Victories Change Criminal Justice Policy? (November 4, 2026)

Propublica, “We’re Broken”: As Federal Prisons Run Low on Food and Toilet Paper, Corrections Officers Are Leaving in Droves for ICE (November 2025)

NPR, Hakeem Jeffries is poised to become the first Black speaker of the House (November 4, 2026)

EQUAL Act (118th Cong, S. 1062)

Prohibiting Punishment of Acquitted Conduct Act (119th Cong., S. 3483)

~ Thomas L. Root

Second Chances – Update for November 10, 2026

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

NEITHER FISH NOR FOWL

Except in a few narrow circumstances, the Antiterrorism and Effective Death Penalty Act of 1996, bars prisoners from filing a 28 USC § 2255 petition for post-conviction relief when an earlier petition has already been denied. One of these exceptions is when such a claim relies on “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.” The other is if newly-discovered facts underlying the claim show “by clear and convincing evidence that, but for constitutional error, no reasonable fact finder would have found the applicant guilty of the underlying offense.”

State prisoners may file a similar federal habeas corpus petition under 28 USC § 2254. The standards for being allowed to file a second § 2254 or § 2255 petition are essentially the same.

Sometimes, however, the basis for the second habeas corpus is neither fish nor fowl.

In 2007, Dexter Johnson was sentenced to death for his role in a double murder. Five years before his conviction, the Supreme Court held in Atkins v Virginia that executing people with intellectual disabilities violates the 8th Amendment. At his trial, Dex’s expert concluded, however, that under the diagnostic standards at the time the defendant was close to being intellectually disabled but not quite there.

After conviction, Dex filed a 28 USC § 2254 habeas petition and argued that Atkins should extend to people with mental illness. He was denied.

But a few years after that, the American  Psychiatric Association, publishers of The Diagnostic and Statistical Manual of Mental Disorders issued the 5th edition (known as DSM-5).The DSM is the bible of psychiatry, and its definitions of mental disorders – including intellectual disability – are for all intents and purposes determinative in the legal world. 

The catch was this: under the DSM-4 standard (the predecessor edition), Dex fell a little to the smart side of the IQ level that marked intellectual disability. However, DSM-5 changed the standard accepted by psychiatric professionals. Under the DSM-5 standard, Dex was intellectually disabled, meaning that executing him would be unconstitutional.

The problem is that a changed medical standard is neither a new rule of constitutional law nor a new fact relating Dex.  DSM-5 is not a legal decision, and Dex’s IQ remains what it was when he committed the crime. The issue, then, is whether the new standard qualifies Dex to file a second § 2254.

When Dex filed the second § 2254, the district court agreed that it was a claim that was previously unavailable. The 5thCircuit agreed.  Texas came to the Supreme Court.

Last week, the Supreme Court heard oral arguments.

Justice Elena Kagan suggested that the DSM-5 effectively created “a kind of Atkins I and an Atkins II” – first, a rule barring the execution of people with intellectual disabilities, followed by a “substantive standard” defining what it means to be intellectually disabled. She described the Atkins standard as akin to a rule with a “big gap in it” where “the DSM comes and plugs it in and it becomes part of the legal standard.”

Justice Clarence Thomas asked whether, under Dex’s argument that a change in the DSM changed the Atkins holding, “Does Atkins ever stop being a new rule?” Schepers responded that Atkins “remains new now.”

Writing in SCOTUSBlog, Nora Collins said, “Perhaps the most noticeable takeaway from oral argument was how subdued the justices were. The chief justice did not ask any questions, and no justice appeared to take up Johnson’s request in his brief that the court”  DIG the case.  A DIG would make the 5th Circuit decision in Dex’s favor final.

Guerrero v. Johnson, Case No 25-1003 (argued November 6, 2026)

SCOTUSBlog, Justices consider when a constitutional rule is “previously unavailable” to prisoner (November 6, 2026)

Washington Examiner, Supreme Court grapples with allowing death row inmate’s second bid to avoid execution (November 4, 2026)

~ Thomas L. Root

‘Our Bad,’ Government Tells SCOTUS While Trying to Scuttle Habeas Case – Update for November 9, 2026

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GOVERNMENT TRIES TO TORPEDO SCOTUS HABEAS ARGUMENT

During Supreme Court oral arguments in Maxwill v. Dinis last week, the Solicitor General suggested for the first time that the petitioner – who had filed a 28 USC § 2241 habeas corpus petition claiming the BOP had miscalculated his First Step Act credits – was going to halfway house in January anyway. That meant the case was about to be moot, the SG argued.

The argument left Justices vexed that the government was only now arguing that the case, which was fully briefed and argued, should be dismissed as improvidently granted (known in SCOTUS-speak as a “DIG”).

Justice Ketanji Brown Jackson responded that the Supremes had already decided to address Maxwell’s issue when it granted certiorari five months ago. “What is concerning me about your DIG argument is that it sounds like we are relitigating certiorari,” Jackson said.

She suggested the Court could issue a narrow ruling based on Maxwell’s specific circumstances, rather than using “this case to define every circumstance in which habeas is appropriate.”  That result would deprive other prisoners of badly-needed high court guidance on the use of 2241 habeas.

The narrow question, Justice Jackson said, is whether a prisoner is able to bring a habeas claim that “he’s being unlawfully detained because he’s entitled to placement in a halfway house if his good-time credits had been calculated properly.”

Maxwell’s claim is that habeas corpus is not limited to petitions seeking immediate release from all forms of custody, but instead can be used where a prisoner is being deprived of less restrictive custody, such as from an institution to a halfway house or home confinement. Such prerelease custody is still BOP custody, but it’s much closer to freedom.

In Supreme Court briefing, the government agreed with petitioner Maxwell, but then at last week’s oral argument, suddenly veered into its mootness claim, telling the justices that if they reverse and remand Maxwell with an order that the district court hear the habeas, it will likely become moot before it can be decided.

“So, even if it’s not moot here, it’s going to be moot down there [in the lower court] real quick, is what you’re telling us?” Justice Neil Gorsuch asked.

“Absolutely, yes,” the government replied.

The DOJ attorney acknowledged under questioning that the government had not raised that argument when the Supreme Court granted review of the case last spring.

“That was our bad,” Assistant to the Solicitor General Kevin J. Barber told the justices.

Justice Sonia Sotomayor complained that Barber was now trying to “win on an argument that you failed to raise on cert.”

“There’s just no reason for this court to have buyer’s remorse on this case,” Maxwell’s attorney responded.

Justice Gorsuch later told Barber, “I haven’t heard ‘my bad’ before at the podium. Good on you.”

Maxwell v. Dinis, Case No. 25-5930 (argued November 2, 2026)

Law360Pulse, ‘Our Bad’: Feds’ First Step Act Argument Surprises Justices (November 2, 2026)

Courthouse News Service, Feds fumble push to squash prisoner transfer to halfway house at SCOTUS (November 2, 2026)

~ Thomas L. Root

Rutherford Claims Another Victim – Update for November 6, 2026

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NO RIZZ FOR RIZO

“Rizz,” for those readers who have just awakened from a 20-year nap, is a colloquial noun, used when describing possession of charisma. As a verb, rizz can be used to describe using charisma to attract someone, as to “rizz up” a person.

Abel Rizo, who has been doing 468 months for a conspiracy to rob drug dealers since 1997, had multiple 18 USC § 924(c) convictions, with the second one adding 240 months to the sentence.

His original sentence included concurrent 168-month terms for his drug convictions and concurrent 60-month terms for the Hobbs Act offenses. The firearm convictions, however, added consecutive terms of 60 months and 240 months, producing the aggregate 468-month sentence.

The 2018 First Step Act changed the treatment of multiple § 924(c) convictions obtained in one prosecution so that the second or subsequent counts in the same case carried the same minimums as the first one. Abel filed a motion for compassionate release under 18 USC 3582(c)(1)(A), arguing that he would only have gotten 60 months for the second 924, making his sentence disparately long under compassionate release Guideline 1B1.13(b)(6).

The district court agreed. It found that Rizo had served more than ten years and that the 15-year difference on the second firearm count constituted a gross disparity. It also found that he was no longer dangerous and that the factors in 18 USC 3553(a) favored relief favored cutting his aggregate sentence to 288 months. Rizo was released on December 6, 2024.

The government appealed, arguing that 1B1.13(b)(6) was beyond the Sentencing Commission’s authority to adopt. While the appeal was pending (and Able was at home), the Supreme Court decided Rutherford v. United States, which held that 1B1.13(b)(6) was unlawful (essentially buying the position that the government had raised on appeal of Abel’s release).

The 11th Circuit held that it could hear the government’s appeal because the sentence-reduction order was final and the government presented a cognizable claim that the reduced sentence violated federal law. On the merits, the court applied the Supreme Court’s intervening Rutherford decision to reverse the sentence reduction grant.

The District Court’s favorable findings that Abel was not dangerous and the § 3553(a) factors could not cure the loss of a legally permissible extraordinary and compelling reason. The dangerousness and sentencing factor considerations are basic requirements for a compassionate release, but no matter how favorable they may be to a defendant, they do not make up for the failure of the threshold statutory condition that an extraordinary and compelling reason exist for compassionate release.

The 11th did not need to reassess Rizo’s rehabilitation, weigh the seriousness of his offenses, or decide whether fifteen years was a sufficiently substantial disparity. Rutherford had already made the disparity basis of 1B1.13(b)(6) legally unavailable. The size of the disparity could not change that conclusion.

So two decades after the offense and two years of successful supervised release, it looks like Abel is going back to prison for another 15 years. To the extent that an opinion can have rizz, this one definitely does not.

United States v. Rizo, Case No 24-11349, 2026 U.S.App. LEXIS 32775 (11th Cir. October 27, 2026)

~ Thomas L. Root

FCC May Lift Cellphone Prison Jamming Ban – Update for November 3, 2026

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LONDON CALLING, BUT NOT ON A CELLPHONE

London may be calling, as The Clash told us in its classic punk album nearly a half century ago, but if the government has its way, no one inside with a cellphone will be doing the same.

The BOP has for years wanted to use cellphone jammers to shut down the use of such phones inside federal prisons. Federal law (as interpreted by the Federal Communications Commission) prohibited any transmitter that was not intended to send communications without interfering with other devices. Because the very nature of a jammer is to interfere with other devices instead of sending communications, one agency of government was telling another agency of government that jammers were prohibited.

Prison jamming technologies are routinely used by correctional agencies around the world. New Zealand and Australia have employed jammers for more than a decade. The BOP conducted an early test of brute force jamming (which broadcasts multifrequency hash that disrupts all cell frequencies) in February 2010 and a limited field test of micro-jamming technology (which disrupts only a few frequencies in a much smaller area) at FCI Cumberland.  Maryland, in January 2018.

The FCC has been granting Special Temporary Authority on a case-by-case basis to the BOP since them for testing purposes.

Prison jamming may be moving into the mainstream. FCC Chairman Brendan Carr announced last Wednesday that the FCC will vote November 19 on final rules that would allow prisons to jam contraband cellphones. Carr said the rules would allow, but not require, state and local correctional facilities to use cellphone jamming technology to combat contraband devices.

Once the rule change is in place, “corrections officials can apply to the FCC, outline how they’re going to do their jamming,” Carr said. “They’ll get approval from the agency, and they’ll be able to get going.” Institutions will have to prove that their decision will not create harmful interference outside designated geographic areas.

“This isn’t going to be a silver bullet at the end of the day but is a tool that has been denied law enforcement and corrections officials for too long,” Carr said.

KATV, FCC Chairman Brendan Carr joins Tim Griffin to announce vote on jamming prison cellphones (October 28, 2026)

Arkansas Advocate, FCC moving forward on rule to allow prison cellphone jamming (October 28, 2026)

Urban Institute, Cell Phone Jamming Technology for Contraband Interdiction in Correctional Settings (June 2023)

~ Thomas L. Root

It’s Now November… and Nothing’s Happening (Except Maxwell) – Update for November 2, 2026

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NOTHING NEW ON NOVEMBER 1

November 1st is a date with almost mythical status among federal prisoners, the day – according to rumor – that all sorts of new laws become effective, the front gates swing open, and everyone goes home.

The only magic that November 1 brings is that it’s the date on which Sentencing Guidelines amendments become effective. The 2026 Amendments – which change § 2B1.1 loss tables, pump up fentanyl punishment, and simplify multiple count adjustments – ARE NOT RETROACTIVE. This means that even if one of the few changes would benefit your Guidelines score, if you’re already sentenced, there’s no going back.

 Oh, yeah. There are no changes to the methamphetamine laws, either.

SCOTUS FSA HABEAS CASE GETS ARGUED TODAY

Maxwell v. Dinis, perhaps the most important post-conviction case of this Supreme Court term, will be argued today. Maxwell considers a federal inmate’s ability to use the habeas statute, 28 USC § 2241, to contest the Federal Bureau of Prisons’ placement decisions under the First Step Act, in this case, a refusal to accelerate the inmate’s transfer to a halfway house or home confinement due to earned time credits under 18 USC § 3632.

The FSA permits prisoners to earn time credits for completing programming that reduces recidivism. An inmate’s first 365 credit days reduce his or her sentence by up to a year.  Any leftover credits entitle the prisoner to extra time in a halfway house or home confinement.

Time in halfway house and on home confinement is still time in BOP custody. Thus, it is distinct from time on supervised release, a separate portion of the sentence that begins after imprisonment ends and is overseen by the US Probation Office.

Bill Maxwell has been serving a white-collar sentence of 20 years. His BOP record was spotless, and he completed a large number of programs that earned him FSA credits. He got crosswise with the BOP over whether it had properly counted all of his credits, complaining that he was being shorted by about 42 months.

Bill filed a petition for habeas corpus under 28 USC § 2241, seeking a court order that he be given his extra credits. The District Court dismissed the petition because it said Max had not exhausted his remedies. The 5th Circuit affirmed the dismissal but for different reasons. All Bill was asking for was designation to halfway house or home confinement, and those are placements still under BOP custody. The 5th Circuit has a bright-line rule that habeas relief under § 2241 is unavailable unless grant of the requested relief would entitle the inmate to quicker release from BOP custody. That rule doomed Bill’s petition.

Supreme Court precedent leaves it unclear that a federal inmate can use habeas corpus to challenge conditions of his confinement, such as an inmate’s placement in solitary confinement or in a maximum-security facility. When state inmates have brought such claims, the court has said that they may raise those only under 42 USC § 1983, not via habeas. That statute lets people challenge the constitutionality of actions by state and local officials, but not federal officials.

However, in the 2023 Jones v. Hendrix decision, the Supreme Court held that habeas remains available as a procedural mechanism for a federal prisoner to challenge “the legality of his detention” without attacking “the validity of his sentence.” What Bill is trying to do – contest the BOP’s refusal to apply time credits under the FSA to accelerate his transfer to a halfway house or home confinement – can be described as challenging the legality of his detention inside a low-security facility instead of pre-release custody. In 1973, the Supreme Court held in Preiser v. Rodriguez that a state prisoner must use a habeas petition – and not 42 USC § 1983 – to challenge the state denial of good-conduct time credits.

Bill is arguing that habeas relief is available for claims seeking to “reduce the prisoner’s level of custody” (quoting Justice Antonin Scalia’s concurrence in the 2005 case Wilkinson v. Dotson. He also points out that if he can’t use a 28 USC § 2241 habeas petition, he has no other alternative. SCOTUS has severely limited plaintiffs’ abilities to bring a civil-rights suit under Bivens v Six Unknown Named Agents of the Federal Bureau of Narcotics, for example, and federal law has no analog statute to 42 USC § 1983 permitting similar suits against federal. Even the Administrative Procedure Act (5 USC 551 et seq) is unavailable because 18 USC § 3625 makes it inapplicable to most BOP matters.

The government agrees with Bill that a § 2241 habeas action should be available to him to challenge the BOP denial of FSA credits for pre-release placement, although it clearly does not think the use of habeas should be as expansive as Bill does. Because the government has taken Bill’s position, more or less, the Supremes have appointed a lawyer to play devil’s advocate, and argue that the 5th Circuit is right. (This is usual practice at SCOTUS, intended to be sure all sides of the issue are aired).

The lawyer supporting the 5th Circuit’s standard argues that habeas relief should only be available if the inmate’s claim implies that actual physical detention must be shortened, if he or she is entitled to earlier release on bail or parole; or if the sentencing court ordered the prisoner to serve a sentence in a place it lacked jurisdiction to send him or her.

SCOTUSBlog said, “It is unclear whether the justices will find the amicus’ proposed circumstances appealing. But the amicus’s sustained attacks on the difficulties in applying Maxwell’s and the government’s position may well attract their interest.”  Regardless, the first post-Jones review of the parameters of § 2241 should either greatly benefit inmates or be the death knell for § 2241.

Maxwell v. Dinis, Case No. 25-5930 (Oral argument November 2, 2026)

SCOTUSBlog.com, Court to consider federal inmate’s ability to use habeas to accelerate transfer to a halfway house or home confinement (October 28, 2026)

~ Thomas L. Root

Supervised Release By The Numbers – Update for October 29, 2026

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NEW SUPERVISED RELEASE REPORT SUGGESTS FAILURE IS BAKED IN


The US Sentencing Commission has released a Supervised Release Revocations Data Report covering last fiscal year that suggests that a disturbing number of former inmates are sent back to prison for technical violations.


The Report, released last week, examined over 9,000 supervised release revocations from Fiscal Year 2026 (which ended September 30th) that ended in prison time. Its troubling findings support what many commentators have believed for years, that supervised release is too rigid, too punitive, and too focused on setting up former inmates for failure.


Nearly 40% of all violations are for drug use or refusal to submit to drug testing. Only 7% of violations are for new criminal conduct, with the next biggest category – 5.4% – being for not showing up at the Probation Office when told to.  One out of four people whose supervised release is revoked had a Criminal History I – the lowest criminal history category reserved for saints and virgins – when originally sentenced.


The most common term of supervised release being revoked is three years, and the target of revocation, on the average, has been on supervised release for 24 months before revocation is brought.


Among people revoked for new criminal conduct – so-called Grade A violations – three out of four are revoked for drug, gun or assault crimes.


Walter Pavlo noted in Forbes last week, “The USSC has recently emphasized that supervised release should be individualized and that judges should consider alternatives to imprisonment when violations occur. It has also recognized that keeping people under supervision longer than necessary can divert limited probation resources away from individuals who need more intensive oversight.”


The Commission has repeatedly noted in its Supervised Release Primer and in a recent Quick Reference Sheet on early termination that it is no longer necessary to show unforeseen, extraordinary or exceptional circumstances to justify early termination. It’s enough to complete one year while keeping your nose clean.


Unfortunately, the Supervised Release Revocations Data Report suggests that avoiding entanglement for minor technical violations is not easily done.


US Sentencing Commission, Supervised Release Revocations Data Report (October 2026)


US Sentencing Commission, Primer: Supervised Release (July 2026)


Forbes, USSC: Thousands Return To Fed Prison For Violating Supervised Release (October 19, 2026)


~ Thomas L. Root


	

	
	




	
	

		
A Pair of Promising Post- Conviction Cases – Update for October 27, 2026

		

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HECK V. HUMPHREY EXTENDS FTCS DEADLINE


The 1994 Supreme Court decision in Heck v. Humphrey held that a prisoner cannot sue civilly for an unconstitutional conviction or sentence until the conviction or sentence has been invalidated by a criminal court. It’s always been a bludgeon for inmate pro se litigators. However, a 4th Circuit case decided last week suggests that Heck applies expansively to prison discipline and that it can be a double-edged sword.


While doing federal time in 2017, Donte Parrish sued under the Federal Tort Claims Act, alleging that he was wrongfully charged with a Prohibited Act and placed in segregated confinement for the killing of another inmate. He sat in the SHU (Special Housing Unit, known as “The Hole”) for several years while the FBI investigated, before deciding not to pursue it. Afterward, the BOP found Donte committed a different offense he had never been charged with.


When an appeal finally sent the case back to the DHO, a new officer conducted a fresh hearing on the two charges in the original 2009 incident report. On January 25, 2017, the new DHO found that “no prohibited act was committed” and expunged the incident report.  By then, Donte had spent about eight years in the SHU.


An FTCA suit has to be brought within six months of denial of the inmate’s administrative claim. Donte’s claim was denied October 7, 2016, meaning that he had to sue by April 7, 2017.  He did not file until a month later than that, May 3, 2017.


The Circuit held that Donte’s tort claims were governed by Heck v. Humphrey. Thus, Donte’s did not accrue until January 25, 2017, at the earliest, when the record for the charges against him was expunged. Thus, the 4th ruled, Donte’s complaint filed in May 2017 was within the six-month statute of limitations set forth in 28 USC § 2401(b) and was therefore timely.


Heck v. Humphrey, 512 US 477 (1994)


Parrish v. United States, Case No 20-1766, 2026 U.S.App. LEXIS 31678 (4th Cir. October 19, 2026)




‘HE SAID, SHE SAID’ IN 2255 MOTIONS REQUIRE HEARINGS


Patrick Anderson pleaded guilty to a methamphetamine and fentanyl trafficking offense, and waived his right to appeal.  Later, he filed a pro se motion under 28 USC 2255, claiming that his lawyer was ineffective because he failed to file an appeal after Pat told him to do so.


The district court directed Pat’s trial attorney to file a declaration addressing Pat’s accusations. His lawyer denied everything.


The district court then denied Pat’s habeas corpus motion brought under 28 USC § 2255 without a hearing. The judge found that trial counsel’s affidavit “thoroughly contradicted” any claim that Pat directed his counsel to appeal. And because “both parties… already submitted… their respective versions of the events in question,” the district court ruled that “bringing them back into court to give testimony that will almost certainly parrot their briefing seem[ed] to be an unwarranted waste of judicial resources.” The district court thus held that it could “conclusively determine Anderson’s credibility: without holding an evidentiary hearing.


Last week, the 9th Circuit reversed.


The 9th held that, faced with conflicting sworn statements from Pat and his trial counsel on a dispositive issue, the district court should have held a hearing to assess each person’s credibility, and abused its discretion by failing to do so before denying Pat’s motion. Disagreeing with the government’s argument that this is a rare case in which credibility can be “conclusively decided” without a hearing, the panel wrote that Pat’s allegations are not “so far outside the bounds of reason” that they are “impossible to believe.”


The panel ruled, “At bottom, when faced with two conflicting statements—one from Anderson claiming he told his trial counsel to appeal, and one from trial counsel claiming otherwise—the district court could not conclusively credit trial counsel’s version without the benefit of an evidentiary hearing.”


This is the kind of thing that happens too often in § 2255 hearings. The Supreme Court ruled almost 65 years ago in Machibroda v. United States that 2255 movants’ plausible claims weren’t to be disbelieved without a hearing, but that holding is pretty much honored in the breach. It is heartening for an appeals court to remind trial courts that prisoners aren’t to be automatically disbelieved because they’re prisoners and lawyers aren’t to be automatically believed just because they’re lawyers.


United States v. Anderson, Case No 24-2385, 2026 U.S.App. LEXIS 31696 (9th Cir. October 19, 2026)


Machibroda v. United States, 368 US 487 (1962)


 


~ Thomas L. Root
	

	
	




	
	

		
Supreme Court Bucks Trump Bid to Dissolve Transgender Stay – Update for October 26, 2026

		

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SCOTUS DENIES BOP STAY OF ITS TRANSGENDER POLICY


The Supreme Court last Wednesday prevented the Federal Bureau of Prisons from denying certain gender-transition medical treatments for transgender inmates at federal prisons while the lawsuit over the issue works its way through the courts.


Two conservative justices, Samuel A. Alito Jr. and Clarence Thomas, said they would have granted the administration’s emergency request to stop the treatments while the litigation is pending.


In response to President Trump’s January 2025 Executive Order, the BOP adopted new policies to prohibit inmates from receiving the care. In March 2025, a group of inmates filed a class-action lawsuit accusing the government of failing to follow the Administrative Procedure Act before changing the prison policy, claiming that the agency provided no reasoned explanation for its decision.


The BOP adopted the policy in February, roughly one year after it issued two memoranda to implement the Executive Order that had been signed by President Donald Trump on the first day of his second term. That EO directed the Attorney General to “ensure that no Federal funds are expended for any medical procedure, treatment, or drug for the purpose of conforming an inmate’s appearance to that of the opposite sex.”


The BOP said that it adopted its February 2026 policy “independently of” Trump’s January 2025 Executive Order. In connection with the 2026 policy, the BOP also included an extensive administrative record and a 43-page memorandum in which it attributed the change from its prior policy to, among other things, “the latest scientific information.”  Its earlier policies, the BOP said, had relied on recommendations by the World Professional Association for Transgender Health, but it now deems WPATH’s standards “unreliable” and “unpersuasive.”


Finally, the BOP expressed concerns that providing access to procedures such as gender-transition surgeries could subject transgender prisoners to “attacks,” “raise fairness concerns,” and “breed resentment among other inmates.”


The lawsuit disputes the government’s argument that the treatments are not supported by the most recent science. The plaintiffs also note that prison officials in past administrations had not raised safety concerns regarding inmates receiving the care.


The Supreme Court’s denial of a stay means that, for now, as many as 1,000 federal prisoners who have been diagnosed with gender dysphoria will continue to receive gender transition treatments.


New York Times, Supreme Court Blocks Trump From Denying Gender-Transition Care to Federal Prisoners (October 21, 2o26)


SCOTUSBlog, Justices leave lower court order in place preventing Trump administration from implementing transgender inmate policy (October 21, 2o26)


Washington Post, Supreme Court allows gender transition care for federal prisoners for now (October 21, 2o26)


~ Thomas L. Root









	

	
	




	
	

		
Criminal Law Busywork at Supreme Court – Update for October 22, 2026

		

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LAST WEEK AT THE SUPREME COURT


Maxwell v. Dinis (formerly Maxwell v. Thomas):      A few months ago, I reported on petitioner William Maxwell’s claim in the Supreme Court that he should be allowed to challenge the BOP’s refusal to place him in prerelease custody by applying his First Step Act time credits in a petition for habeas corpus under 28 USC § 2241. (The 5th Circuit ruled otherwise, holding that habeas “is not the proper vehicle” for such a claim, which instead should be brought in “a civil rights suit under Bivens”).


Since then, the Government has informed SCOTUS that it “agrees with petitioner that that holding is incorrect and has therefore filed a brief supporting vacatur of the judgment below.”  Last week, the Court granted the Government’s request for divided argument, a procedure that lets the Solicitor General use part of Bill’s argument time to make its own arguments in favor of his position.


The Court has appointed a private attorney to advocate for the side that the Government would usually argue.  An argument date has not yet been set.


Maxwell v. Dinis, Case No. 25-5930 (divided argument granted, October 13, 2026)




Beaird v. United States: Beaird asks whether a sentencing court must defer to the sentencing Guidelines commentary. The precise issue is whether the enhancement for having a gun with a “large capacity” magazine must follow the Guideline commentary defining such a magazine as being 15 rounds or more.


At oral argument last week, the Supreme Court seemed disinclined to tinker with the 33-year-old Stinson v. United States holding that Guidelines commentary that “interprets or explains a guideline is authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline.” This is despite the fact that there is a substantial argument that the 2019 Kisor v. Wilkie holding – that limited the rule that courts defer to agency interpretation of its own ambiguous regulations – pretty much undid the Stinson holding.


Only Justice Neil Gorsuch seemed open to revisiting Stinson and Kisor in light of the 2025 Loper Bright holding that invalidated the rule that courts had to defer to how agencies interpreted statutes and rules.  SCOTUSBlog reported that “none of the other justices seemed particularly interested in adopting such a position.”


This is another case where the Government sided with the petitioner, arguing with Beaird that, principally because the guidelines are now advisory, Stinson–style deference to the commentary should no longer apply. As the oral argument suggested, the fact that both parties argue for one position is no guarantee that the Supremes will roll over and accept it.


SCOTUSBlog, Court unlikely to alter deference to sentencing guidelines commentary (October 16, 2026)


Beaird v. United States, Case No. 25-5343 (argued October 13, 2026)




Berry v. United States:    As anyone who ever filed a post-conviction 28 USC § 2255 motion knows, a district court denial is not appealable unless the appellate court grants a certificate of appealability (COA). A COA should be a low bar – a holding that the issue presented is reasonably debatable by judges or otherwise significant enough to let the movant continue with an appeal.


As the National Association of Criminal Defense Attorneys puts it, a COA is thus “the gateway to both appointment of counsel and an appeal on the merits—and by extension to a meaningful appellate process that can develop well-reasoned circuit splits on difficult legal questions.”


Corey Berry lost his § 2255 motion, and then filed an application for COA pointing out that the 11th Circuit’s holding that he had to prove his sentence did not rely on the elements clause of 18 USC § 924(c) was contrary to the holdings of seven other circuits. Thus, he said, the issue was clearly debatable. The 11th disagreed, denying his COA.


Last week, the Supreme Court granted review, focusing on whether a COA should be granted when the issue the petitioner seeks to raise on appeal has been resolved against him by binding circuit precedent but has been decided in his favor by another circuit.


It’s been a decade since SCOTUS last decided a COA case (Buck v. Davis).  A new decision that balances granting COAs of merit with appellate court efficiency is long overdue.


Berry v. United States, Case No. 25-7026 (cert. granted, October 13, 2026)


~ Thomas L. Root