They Pardoned Him, But Only After A Little Medical Neglect – Update for September 1, 2026

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J6 BOP PRISONER GETS PARDON, THEN SUES FCI ELKTON FOR LOUSY MEDICAL CARE

A retired Pennsylvania firefighter who threw a fire extinguisher that hit two police officers during the Jan 6, 2021, attack on the US Capitol has sued FCI Elkton for failing to treat his numerous medical ailments. The BOP’s medical nonfeasance, according to the plaintiff, eventually led to surgery and chronic pain.

Robert Sanford was one of more than 1,500 people President Trump pardoned for crimes committed during the Jan 6 attack.

Sanford was sentenced in 2023 to four years and four months in prison for throwing the fire extinguisher at officers defending the Capitol while calling them “traitors.” He was released in October 2024 after the BOP filed a compassionate release motion asking his sentencing judge to release him about 19 months early on a 52-month sentence because of Sanford’s undisclosed “terminal medical condition.” The court filing redacted the medical condition.

After his release, Trump pardoned him and 1,499 of his closest friends, all fellow rioters.

Sanford’s lawsuit says Sanford was physically fine when he arrived at the prison. In early 2024, he developed worsening back pain that went untreated despite multiple requests for medical care, the lawsuit says. He filed the suit in the Eastern District of Pennsylvania, but it was transferred to Cleveland.

A doctor prescribed a steroid in May 2024, but it did not help, according to the lawsuit. In July, Sanford reported that the pain was so severe that he struggled to walk. Later that month, he returned to the doctor in a wheelchair and was again prescribed steroids. The wheelchair was replaced with a cane, the lawsuit says.

He returned to the doctor, who accused him of faking his illness. Sanford was then thrown into the SHU, according to the lawsuit.

After an X-ray on Aug 1, he was diagnosed with arthritis in his hip and hip impingement syndrome, the lawsuit says. He fell while using a walker the next day. Despite his pleas for help, he was not seen by prison doctors for four days.

Doctors then sent him to a nearby hospital, where they found that he had serious blood clots, a badly fractured hip and lung cancer, according to the lawsuit.

Seriously hurting but accused of faking it?  Who’s ever heard of such a thing happening at the BOP?

Sanford v, FCI Elkton, Case No 4:26-cv-02034-S (ND Ohio, filed May 18, 2026)

~ Thomas L. Root

Smith Takes BOP Job and Shoves It – Update for August 31, 2026

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SMITH PACKS IT IN AFTER A YEAR AT THE BOP

Bureau of Prisons Deputy Director Joshua Smith, pardoned for a drug offense that happened 30 years ago, abruptly announced last Monday he was leaving the agency without giving a reason.

After his release from prison a quarter century ago, Smith built a Knoxville-based service company into a multimillion business while using it and a foundation he started to give recently released inmates employment and support in staying out of trouble.

In a post from his personal X account, Smith thanked President Trump for the chance to serve as BOP’s second in command, an opportunity available because Trump pardoned him for in 2021:

Three decades ago, I walked through the gates of a federal prison as an inmate. Years later, after receiving a presidential pardon, I was given the opportunity to walk back through those gates as Deputy Director of the Federal Bureau of Prisons, serving the very President that gave me that pardon. For that, I will always be grateful to President Donald J. Trump.

By all accounts, Smith’s leadership at the BOP was unconventional. He became part of BOP Director William K. Marshall III’s leadership team that pushed an agency Walter Pavlo described last week as “known for incremental change” toward a different management philosophy. “During their time together,” Pavlo said of Marshall and Smith, “the Bureau changed how it selected leaders, challenged its longstanding relationship with the union representing BOP employees, began rewriting decades-old policies, secured significant funding to address deteriorating prisons, created teams to attack infrastructure and operational problems and announced the closure or restructuring of several institutions.”

Smith traveled across the country to dozens of prisons – some visits being unannounced – and hosted a BOP-centric podcast called “Transparency Talks.” Smith helped transfer or replace about 70 pct of BOP executive staff — including several top wardens — and focus on leadership development. “At the end of the day,” he said, “bureaucracy is bureaucracy. I hope what I was able to do was at least start a fire there.”

Smith had a tense relationship with some of BOP employees. A BOP employee union rep at FCI Hazelton said, “The deputy director of the Federal Bureau of Prisons, with a criminal history of his own, has stepped down from the post.” American Federation of Government Employees Local 420 Steward Jason Shaffer said Smith’s appointment was “a slap in our face. To have an inmate who was once housed in our prison who was running the U.S. Bureau of Prisons has devastated our country and greatly affected the staff who have worked hard for the BOP.”

Smith would not say why he resigned, but he said he didn’t need the job.

CBS News, Bureau of Prisons No. 2 official who was pardoned for drug crimes abruptly departs (August 25, 2026)

Forbes, Josh Smith Abruptly Leaves Bureau Of Prisons After Year Of Changes (August 25, 2026)

WV Metro News, FCI Hazelton workers applaud resignation of BOP deputy director, former inmate (August 25, 2026)

~ Thomas L. Root

Wheels on the Bus – Update for August 28, 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.

ALONG FOR THE RIDE

Writing in Forbes last week, prison consultant Walter Pavlo argued that courts’ expanded use of ordering self-surrender after federal sentencing rather than remanding prisoners into custody for delivery to prison would benefit both prisoners and the government.

The federal government operates the Justice Prisoner and Alien Transportation System, which moves inmates from jail to prison and between prisons, among other duties, with annual operating costs of up to $80 million. “When a low-risk defendant who could have voluntarily surrendered is instead remanded at sentencing,” Pavlo wrote, “the government assumes responsibility for housing, healthcare, guarding and transporting that person through this system until he reaches his designated BOP institution.

Until the prisoner is actually moved, his or her detention cost is borne by the U.S. Marshals Service, which spent about $2.2 billion on housing prisoners in 2025, with an average daily detention cost of $121 per prisoner

Beyond that, Pavlo contends, a designated BOP institution is built around serving a sentence. There can be work assignments, education, vocational training, recreation, treatment and, depending upon eligibility and location, programs such as the Residential Drug Abuse Program and release preparation. A detention center or county jail usually lacks meaningful programming because prisoners come and go randomly.

Pavlo, as usual, makes good sense. Nevertheless, too many judges who remand do so even when the prisoner has been on presentence release without problem. Without any incentive to make a remand decision with efficiency and economy in mind, courts’ remand orders often seem to be capricious rather than reasoned.

Forbes, Federal Judges Waste Taxpayer Money By Remanding At Sentencing (August 18, 2026)

~ Thomas L. Root

New Gun Restoration Rule Sends DOJ Fox to Guard the Henhouse – Update for August 27, 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.

DOJ ADOPTS FINAL GUN RIGHTS RESTORATION RULE

The Dept of Justice last week published a final rule adopting a procedure for restoring gun rights for people convicted of certain nonviolent felonies.

It’s a victory for the government’s goal of being the gatekeeper on 2nd Amendment rights. It’s a loser for everyone else.

The process will be restrictive and vigorous, coming with a long list of “presumptive disqualifiers.” Those include a conviction at any time in the past for a host of crimes of violence, for brandishing a gun, for witness tampering, or if you’re subject to sex offender registration (to name just a few). There is a 10-year wait for people convicted of drug offense or prior misdemeanor crimes of domestic violence. Gun rights won’t be restored if your conviction is less than five years old or you’re still locked up or on supervised release.

The application requires copies of prior criminal judgments, indictments, plea agreements and a state criminal history for the past 25 years. You must provide contact information for three character references, none of whom is prohibited from possessing a gun. Finally, you have to submit electronic fingerprints.

The program will be run by the Office of Pardon Attorney, a fact which does not provide comfort that decisions on gun rights – given that OPA as recently as July 1st had a 20,000-document backlog of petitions for clemency –  will be made quickly.

A curious and not-very-promising provision of the program is that it will be open on September 25 for six weeks only to “invited candidates.”  No one seems to have explored who the “invited candidates” might be, but given the Administration’s track record of favoring people with money, celebrity status and connections, the chance that the program may be flooded with favored applicants is real. Mel Gibson got his rights back, but there are plenty of MAGA-loving people with money or status in line behind him.

On November 4, the program will open to the public for 5,000 candidates. On January 4, 2027, the process will open to additional candidates, with a $30 processing fee required for the first time.

If your application is denied, you will have the right of judicial review.

Associated Press hopefully reported that the program is a victory for Second Amendment advocates who have long pushed for nonviolent people with felony convictions to be given a pathway to regain their legal right to own firearms.” It quoted Blanche as saying, “The Second Amendment is not a second-class right, and the federal government should not permanently deprive Americans of a constitutional right without regard to whether they pose a danger to public safety,” Blanche said in a statement. The attorney general said the new process will protect “public safety while giving deserving Americans a real path to restoration.”

However, the program may be a fig leaf that lets the Administration avoid a Supreme Court showdown over the 2ndAmendment and 18 USC 922(g) while deciding for itself whose 2nd Amendment rights will be honored and whose will be ignored. If § 922(g)(1) is unconstitutional as applied to some people despite their convictions, setting up a discretionary government process whereby the unconstitutionality may be corrected in the future is hardly comforting. The government may as well set up a panel to decide that you can exercise your 1st Amendment rights to make statements or publish flyers after you submit to a bureaucratic review process.

If a conviction is insufficient to strip 2nd Amendment rights from the start, an argument that you should be convicted of a § 922(g)(1) offense anyway because you didn’t petition the government to give you what you always were constitutionally entitled to is scary.  

Look at Ray Luna.

Ray was convicted of a drug possession felony. Much later, he was caught with a gun and charged as an 18 USC § 922(g) felon in possession. The District Court dismissed the indictment, holding that disarmament over a mere possession conviction – even a felony one z– violated Ray’s 2nd Amendment rights.

The government – the same government that will grant or deny you your 2nd Amendment rights – appealed to the 5th Circuit, arguing that it had information that Ray had really been trafficking drugs, despite the fact that he had not been charged with or convicted of that. Even if he had not, the US Attorney contended, drug possession was analogous to colonial-era laws regulating trafficking in tobacco. This week, the 5th agreed with the District Court and threw out the indictment:

[W]e consider only whether Luna’s predicate felony supports disarmament… For the purposes of assessing [a defendant’s] predicate offenses under § 922(g)(1), we may consider prior convictions that are ‘punishable by imprisonment for a term exceeding one year… Against the government’s request to ‘account [for] [the defendant’s] entire record, which is necessary to properly assess the extent of his violent conduct,’ we reject such an invitation and instead confine our inquiry to [the defendant’s prior] conviction—the only predicate § 922(g)(1) offense—based on the rule of orderliness.

Calvin, remember that time you laid out Susie Derkins with the snowball when you were both in 1st grade? If you’re convicted of a nonviolent white-collar crime 40 years in the future, you can bet the DOJ will resurrect the Derkins incident as proof that you should be denied possession of grandpa’s antique .22.

Some 2nd Amendment protection: Sending the foxes to guard the 2nd Amendment henhouse.

Federal Register, Application for Relief From Disabilities Imposed by Federal Laws With Respect to the Acquisition, Receipt, Transfer, Shipment, Transportation, or Possession of Firearms (August 20, 2026)

Associated Press, Justice Department creates a new pathway to restore gun rights for some convicted of felonies (August 17, 2026)

United States v. Luna, Case No. 25-40272, 2026 U.S. App. LEXIS 25846 (5th Cir. Aug. 24, 2026)

~ Thomas L. Root

Non-Buyer’s Remorse – Update for August 25, 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.

ACTIONS SPEAK LOUDER THAN WORDS

Derek Fields was indicted for kidnapping, for being a felon in possession of a gun, and a host of other violent offenses stemming from holding a man hostage for a ransom.

In a 28 USC § 2255 habeas corpus motion after his conviction, Derek claimed that during jury selection, his lawyer had passed him a plea offer from the Government, told him it was a 37-year plea deal, and instructed him to “just read it.” His lawyer offered no other information or advice, Derek said, so he rejected the offer. Derek argued that “but for” his lawyer’s “deficient advice[,] there is a reasonable probability [that he] would have pleaded guilty and been sentenced to less jail time.”

Derek said that if his lawyer had explained the benefits of taking the plea deal, he would have signed it. The district court didn’t buy it and denied the § 2255 motion. Last week, the 7th Circuit agreed.

To earn the right to an evidentiary hearing on his § 2255 motion, the Circuit ruled, Derek had to establish prejudice. This kind of prejudice means that “it is reasonably probable that but for the incompetent advice of his attorneys, he would have accepted the government’s plea offer and pleaded guilty; and it is reasonably probable that the judge would have imposed a lower sentence.”

The problem was that Derek had already gone through two prior lawyers and a number of plea discussions, and their notes showed that he “had no inclination for a plea agreement.” In response to a government pre-indictment plea offer the Government had made, Derek told his lawyer it didn’t “make[] a difference whether it is 30 years or 33 years, or 37 years,” since any of those were “a lifetime sentence because his mother will be gone, his grandmother will be gone, and his kids will be grown.” The 7th found that Derek “remained steadfast about rejecting any plea offers despite [his lawyer’s] repeated warnings about the likely outcome of a trial.” The appellate court ruled that “[t]his consistent refusal to take a plea agreement is evidence that [Derek] did not suffer prejudice due to [his attorney’s] failure” to explain the 37-year offer” because he wouldn’t have taken it anyway.

Derek said in his § 2255 motion that he would have taken the deal if his lawyer had explained it, but he nowhere “explained why [his lawyer’s] repetition of the same points would have made a difference, nor does he connect this broad allegation to the specific 37-year plea offer at issue here. As a result, Fields’s declaration does not rebut the undisputed and detailed record evidence that he would have refused any offer contemplating 37 years’ imprisonment.”

The lesson here is that actions speak louder than an after-the-fact claim that the movant would have taken the offer if only… A § 2255 movant must explain why the plea offer he claims his lawyer did not disclose or explain was different from any prior offers he might have turned down.

Fields v. United States, Case No. 24-2913, 2026 U.S. App. LEXIS 24725 (7th Cir. Aug. 17, 2026)

~ Thomas L. Root

Goodbye and Good Riddance to Pardon Attorney… But Nothing’s Likely to Change – Update for August 24, 2026

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PARDON ATTORNEY ED MARTIN RESIGNS

US Pardon Attorney Ed Martin, a staunch ally of President Donald Trump who clashed with other officials and senators over his undisciplined handling of investigations, is leaving his post, President Trump said in a social media post last Friday.

“The departure caps Martin’s short, contentious career at the Justice Department, where he served as the interim US attorney for DC. and, most recently, as the department’s top pardon attorney,” the Washington Post reported on Saturday, helping to determine who should receive pardons from the president.

Martin, who represented several January 6th rioters before Trump’s second term, was originally appointed by Trump to serve as US Attorney for the District of Columbia, one of the highest-profile US Attorney positions in the government.

But Trump withdrew the nomination after Martin’s performance as interim US Attorney was so contentious that he lacked enough support even in a Republican-led Senate to win confirmation.

 Trump then named Martin to the dual position of head of the DOJ’s so-called Weaponization Working Group and US Pardon Attorney. He replaced Pardon Attorney Elizabeth Oyer, who was fired because she refused to support restoration of gun rights to actor Mel Gibson, disqualified under 18 USC 922(g)(9) as a result of a 2011 domestic violence misdemeanor conviction.

But Martin was too much even for the Trump-selected DOJ top bosses, who were “put off by Martin’s aggressive and unorthodox style,” according to the Post. Last February, Martin was fired from his Weaponization Work Group role and stripped of most of his DOJ responsibilities. He was exiled to the Northeast Washington Pardon Office, some distance from Justice Department headquarters.

At the time, rumors suggested he would resign as Pardon Attorney within a few weeks, but it took six months instead.

Under Martin, Trump pardoned a number of people who donated to his campaign or affiliated entities, were allies, or otherwise had been convicted of offenses that Trump saw as innocuous (such as tampering with diesel engine emissions). At the same time, predictions of widespread general commutations – such as the rumored 250 pardons on the nation’s 250th birthday – never materialized.

A report issued last Friday by Rep Jamie Raskin (D-MD), the top Democrat on the House Judiciary Committee, accused Trump of running a “sprawling pay-to-play clemency industry that has emerged around [the] White House.” The report alleges that Trump has sidelined the traditional DOJ Office of Pardon Attorney process and replaced it with a “pay-to-play” system in which wealthy applicants use political contributions, Trump family business ties, and well-connected Trump insiders to obtain presidential pardons and commutations.

Raskin said:

Donald Trump has taken one of the most solemn constitutional powers of the presidency and turned it into a bustling marketplace for insider political influence and unjust personal enrichment. ‘Pardons, Inc.’ has a simple business model: wealthy white-collar criminals and drug traffickers hire Trump insiders, pour money into his political operation or cultivate his family’s financial interests, and suddenly the doors of the White House swing open for a pardon, commutation, and forgiveness of all fines and financial restitution owed. Meanwhile, thousands of imprisoned Americans without elite MAGA connections who show genuine contrition, have paid restitution to their victims and are seeking mercy sit endlessly in limbo.

Goodbye, Ed. We baked you a cake...

Not that this is surprising. Martin has always described his philosophy as ‘No MAGA left behind’ and has used his office to privilege clemency applications from the Oath Keepers, the Proud Boys, and the two men convicted of plotting to kidnap Michigan Governor Gretchen Whitmer,” the report stated.

The OPA traditionally has been opaque, painfully slow, and very conservative in recommending prisoners for clemency. But at least it was honest. Don’t expect any replacement Pardon Attorney for Ed Martin to return the office to a meaningful or forthright role in the pardon or commutation process.

Washington Post, Ed Martin leaving Justice Dept. after tumultuous tenure that alienated colleagues (August 21, 2026)

The Hill, Controversial attorney Ed Martin leaving Justice Department (August 21, 2026)

House Judiciary Committee Democrats, Pardons, Inc.: How Trump and His Clemency-for-Cash Racket Let White-Collar Criminals and International Drug Dealers Walk Free and Dodge Billions in Restitution Owed to Their Victims (August 21, 2026)

~ Thomas L. Root

Contraband Augments Some Officer Incomes – Update for August 21, 2026

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SO WHERE DOES ALL THAT CONTRABAND COME FROM?

As contraband seems sometimes to oberwhelm the federal prison system, management cracks down on visiting, incoming mail, inmates, and even drones.  All of those are vextors for some incoming contraband.  But the mosr efficient and foolproof route for smuggling swag into a joint remains correctional officers.

At FCC Lompoc, a correctional officer and his wife pled guilty on August 5th to smuggling contraband 13 times over a period of several months to an inmate in exchange for $6,650. The CO delivered the contraband, while his wife collected the payments.

Meanwhile, a BOP CO in South Carolina was indicted last week for accepting over $60,000 in bribes to deliver contraband to inmates. A federal grand jury in Florence handed up charfes of bribery, money laundering and possession of marijuana with intent to distribute.

Bureau of Prisons employees themselves… whoever would have guessed?

KSBY, FCC Lompoc correctional officer and wife plead guilty in prison drug scheme (August 5, 2026)

WMBF, Federal prison officer in Marlboro County accused of accepting more than $60,000 in bribes (August 13, 2026)

~ Thomas L. Root

Prisons, Prisoners, and Money – Update for August 20, 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.

SPENDING MORE ON LESS

USA Facts last week issued a fact sheet on the BOP, reporting that the agency spent a net total of $9.13 billion in fiscal year (FY) 2025, a full 20% of the Dept of Justice’s budget. Only the FBI ($11.2 billion) spent more.

Since 1980, BOP spending has increased about 550% while overall Federal spending has increased 200%. Meanwhile, the number of federal employees working for the Bureau of Prisons has decreased 10.6% since 2012.

In a Substack article, former DOJ official Jonathan Wroblewski argued in favor of the BOP’s decision to close FCC Beaumont Low, FCI Big Spring, FCI La Tuna, the women’s satellite camp at FMC Lexington in Kentucky, FCC Petersburg Low in Virginia, and already-vacant FCI Taft in California (with camps at Morgantown and Duluth being converted into low-security prisons). The BOP has said the decision is borne of necessity due to “longstanding infrastructure and staffing challenges” and a deferred-maintenance backlog that now exceeds $4 billion.

Wroblewski argues that it’s more than that. The Government’s “Smart on Crime” policy adopted in 2013, aimed at reducing the number of BOP prisoners, has reduced the BOP population by about 30%. Yet,

[d]espite the success of the initiative, there is one thing I have found disturbing. Even with 65,000 fewer prisoners than back in 2013, the Bureau of Prisons operates more prisons today than it did when Smart on Crime was announced — roughly 126 institutions now, against about 120 then. Fewer prisoners, more prisons. The system shed nearly a third of its population and somehow expanded its physical footprint. Part of the explanation is timing; facilities authorized and financed during the long boom kept opening after the population had already begun to fall. But most of it is plain institutional inertia. A prison, once built and staffed, becomes a constituency unto itself — jobs, contracts, a fixture of the local economy, a web of interests that does not dissolve simply because the beds have emptied. So the BOP did what bureaucracies do: it spread a shrinking population thinner and thinner across a growing, aging inventory of buildings.

The $4 billion maintenance backlog is, in part, the bill for keeping all of them open. This is why closing prisons is not a betrayal of the reform. It is its completion. The argument we made in 2013 was that money sunk into unnecessary incarceration is money stolen from more effective public safety… Every dollar BOP spends heating, patching, and minimally staffing an institution it no longer needs is a dollar it cannot spend on the officers it is desperate to hire, on the treatment and reentry programming the First Step Act promised, or on the upkeep that keeps its remaining prisons safe and decent.

In Real Clear Politics, Mark Levin and Khalil Cumberbatch of the Council on Criminal Justice echoed the sentiment: “Closing these facilities is the fiscally conservative move, and the real prize is not just the savings. It is what those savings can buy: stronger staffing and better programming at the prisons that remain… Every dollar not spent maintaining an empty 90-year-old prison is a dollar available to recruit and retain officers, while thousands of correctional posts sit vacant, and to expand the programs that can’t accommodate all prisoners striving to earn credits toward release.”

Of course, the BOP is proceeding with plans for a new prison in Letcher County, Kentucky, and President Trump has not publicly abandoned his billion-dollar plan to reopen Alcatraz Island as federal maximum-security prison (although, mercifully, there have been no rumblings about it since last spring). How those plans square with the BOP’s need for less and to repair what it has is unclear. But then, clarity in spending is not something this government is known for.

USA Facts, What does the Bureau of Prisons do? (Aug 6, 2026)

Substack, The Prisons We No Longer Need (Aug 2, 2026)

Real Clear Politics, Closing Federal Prisons: A Winning Hand (Aug 15, 2026)

~ Thomas L. Root

Amici Line Up to Support First Step Habeas Right – Update for August 18, 2026

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AMICUS BRIEFS SUPPORT USING HABEAS CORPUS TO ENFORCE FIRST STEP

In a post back when the summer lay ahead of us with such promise, I reported that the Supreme Court had granted review in Maxwell v. Thomas. Maxwell seeks to resolve a circuit split over whether an inmate can bring a 28 USC § 2241 habeas corpus claim against the Bureau of Prisons when the First Step Act time credits being denied to him would only give him more time in halfway house or home confinement.

Because some circuits view halfway house and home confinement as a mere change in prison designation while the prisoner remains in the custody of the BOP, they have held that habeas corpus – which they hold must seek release from BOP custody altogether – is unavailable to prisoners who are denied FSA credits to which they are otherwise entitled under 18 USC  § 3632 or denied use of those credits for halfway house or home confinement otherwise allowed under 18 USC § 3624(g)(2). The Supreme Court has granted review in Maxwell to resolve the split among the circuits.

Last week, a blizzard of amicus briefs, from everyone from the National Association of Criminal Defense Attorneys to members of Congress, were filed in Maxwell supporting use of habeas corpus to enforce the right to FSA credits.

Rep Jamie Raskin (D-MD) – the ranking member of the House Judiciary Committee – filed a brief supporting use of habeas corpus to enforce the right to FSA credits. Raskin told the Court that Government Accountability Office “audits have unfortunately documented BOP’s systemic failures to properly apply time credits for prisoners participating in recidivism reduction programs and to track prisoners’ eligibility for transfer to pre-release custody. These failures do not merely inconvenience individual prisoners; they undercut the heart of the incentives-based programs that Congress believed would promote the rehabilitation of prisoners and reduce recidivism. Habeas relief is therefore an important backstop to enforce the system of incentives and rewards on which the success of the First Step Act’s programs hinges. A decision by this Court recognizing the availability of habeas to enforce prerelease transfer would further Congress’s historic, bipartisan objectives in the First Step Act of 2018: promoting rehabilitation and reducing recidivism.”

On the Senate side, Minority Leader Richard Durbin (D-IL) and Judiciary Committee member Senator Cory Booker (D-NJ) argued in an amicus brief that the Supreme Court had previously observed, “Congress clearly knows how to use mandatory language when it so desires [and] [t]he First Step Act’s system of earned time credits for federal prisoners is a perfect example. Congress eliminated the Bureau’s discretion about awarding earned time credits when statutory prerequisites have been met. The text and structure of the statute make this abundantly clear.”

Given that FSA passage was President Trump’s initiative and that it passed with a bipartisan supermajority, the amicus briefs explaining Congress’s intent and disappointment with BOP performance thus far are a helpful addition to the record.

Maxwell v. Thomas, Case No 25-5930 (cert granted June 1, 2026)

Amicus Brief of Rep, Jamie Raskin, Case No 25-5930 (August 12, 2026)

Amicus Brief of Senators Richard Durbin and Cory Booker, Case No 25-5930 (August 12, 2026)

~ Thomas L. Root

How 2255 Motions Get Decided (And How to Write Them) – Update for August 17, 2026

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After almost two weeks off on vacation – and having enjoyed four grandkids, two leg injuries and one concussion – we’re back.

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

4TH CIRCUIT DECISION IS THOUGHTFUL PRIMER ON 2255 LITIGATION

Curt Flood faced a life sentence when indicted in 2003. His lawyers kicked around the idea of a plea agreement with the government, but an impasse quickly became apparent: the government would come off the life sentence only if he cooperated. Curt told them that he had no interest in doing that.

Curt went to trial instead and, after he lost, he was sentenced to life. In 2011, after the Supreme Court decided Missouri v. Frye and Lafler v. Cooper – two cases that defined a prisoner’s right to effective representation where a plea offer was concerned – Curt filed a motion under 28 USC § 2255.

After 14 years of fits and starts, the 4th Circuit last week upheld the denial of his § 2255 motion. The decision is a primer on how § 2255 motions are judged at different levels of review, as well as guidance on what a prisoner must claim to succeed and should be required reading for everyone who intends to file one.

Under Rule 4 of the Rules Governing § 2255 Proceedings, a district judge must first decide whether the motion and the trial court record “conclusively foreclose[] relief” despite the 2255’s claims. For example, if a 2255 claim was that the prisoner never signed his plea agreement, the court could safely dismiss the § 2255 motion without further ado by looking at the document and the transcript of the change-of-plea hearing. If, on the other hand, the record does not contain a signed plea agreement and the prisoner was not asked whether he had seen and agreed to its terms, Rule 8 would require the court to order additional briefing and the collection of evidence. Based on that additional record, the court may find that an evidentiary hearing is needed.

The standards by which the 2255 claims are reviewed at each stage have always seemed squishy. What is “conclusively?” And what standard applies to a court’s decision to hold an evidentiary hearing after Rule 8 briefing? Last week’s 4th Circuit decision addressed those questions, comparing Rules 4 and 8 to civil litigation and providing structure to 2255 proceedings that should benefit serious movants.

“When we review a district court’s denial of a § 2255 motion at the Rule 4 stage,” the Circuit ruled, “we are guided by the principles governing review of a [Fed.R.Civ.P.] 12(b)(6) dismissal. So we ‘accept a petitioner’s well-pleaded allegations as true,’ and ask whether the record conclusively forecloses relief notwithstanding those allegations. And when a district court denies a § 2255 motion at the Rule 8 stage—after receiving additional briefing and evidence, but without holding an evidentiary hearing—’we treat the district court’s decision like a grant of summary judgment.’ So we will affirm a district court’s denial of relief without a hearing when the record leaves ‘no genuine dispute as to any material fact.’ Fed.R.Civ.P. 56(a). In so doing, we do not weigh evidence or make credibility determinations. And at both the Rule 4 and Rule 8 stages, we draw all reasonable inferences in the movant’s favor.”

The 4th’s opinion illustrates why a 2255 movant has to ensure that his or her argument is consistent. Curt claimed in his § 2255 motion that his attorneys were ineffective because “they failed to seek a plea agreement… [and] “never even engaged in plea discussions.” But in the same filing, he acknowledged that when the government approached his lawyers about a plea, they met with the prosecutors to discuss it. “In those discussions, the government made clear ‘that in order to receive an offer, Mr. Flood would have to proffer’,” and Curt had already told his attorneys that he would never do so.

However Flood frames counsel’s alleged deficiency, the claim fails. Read as a charge that counsel ‘never even engaged in plea discussions,’ it founders on the record: By Flood’s own admission, his counsel met with the prosecutors and learned that the government’s terms required cooperation. Read instead as a charge that counsel, having met with prosecutors to discuss a plea, should have done something more or pressed harder, it identifies no act or omission that fell outside the wide range of reasonable professional assistance. ‘Try harder’ or ‘do more’ is not a Strickland theory… Absent some specification of counsel’s deficient acts or omissions, the record and filings conclusively show that Flood is not entitled to relief.

Oliver Wendell Holmes, Jr., once said, “The language of judicial decision is mainly the language of logic.” A 2255 movant should spend extra time ensuring that his or her evidence and arguments tell a coherent and substantial story.

United States v. Flood, Case No. 23-7032, 2026 U.S. App. LEXIS 24462 (4th Cir. Aug. 13, 2026)

~ Thomas L. Root