We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
ANOTHER PROCEDURAL TRAP FOR THE UNWARY
It’s because we’re human… or maybe because we all have the attention span of a gnat. But everybody’s interested in substance; no one cares about procedure.
Substantive law is interesting: does a gun in the closet of a marijuana farmer support an 18 USC 924(c) mandatory 5-year consecutive sentence? If you break into a building housing both a pizza joint and a beauty parlor, and pilfer both stores, is that a single burglary or two for Armed Career Criminal Act cases? The issues are understandable, fact-laden and, frankly, interesting.
But who cares about the niceties of whether a Rule 60(b) motion after denial of a 28 USC 2255 petition is a legitimate claim about the integrity of the post-conviction proceeding or a second-or-successive 2255? About whether an appeal/post-conviction waiver in a plea agreement encompasses a motion for sentence reduction? Talk about counting angels on the head of a pin! This stuff is, as a judge once intoned at us during a less-than-effective cross-examination, is te-ee-ee-dious.
OK, it’s tedious. But’s also very consequential. Consider the world of post-judgment motions. Most everyone knows that filing a motion under Rule 60(b) of the Federal Rules of Civil Procedure to try to resurrect a 2255 motion is fraught with procedural peril. After the 2005 Supreme Court decision in Gonzalez v. Crosby, a Rule 60(b) motion may well be considered a second-or-successive 2255, unless it is narrowly focused on a defect in the 2255 proceeding itself.
But how about a Rule 59(e) motion? F.R.Civ.P. 59(e) lets the loser file a motion to alter or amend the judgment within 28 days after the judgment. One of the benefits of a timely-filed 59(e) motion is that it stops the clock running on the time to file a notice of appeal. It is almost a no-brainer: file a 59(e), and you can buy a lot of time before the appeal is due.
John Uranga is a Texas state prisoner. States, like the Feds, all have procedures for post-conviction challenges to criminal convictions. John filed his state petition, and was shot down. He appealed through the state court system and lost at every step.
When that happens, a state prisoner has the right to file a motion in U.S. district court under 28 USC 2254. This sort of gives a state prisoner a second bite of the apple, although the standard for a federal court reversal of a state court denial is pretty high. John was in the U.S. District Court for the Northern District of Texas on his 28 USC 2254 motion, and – just like he had in the state system – the District Court ruled against him. After he lost his 2254 proceeding, he filed a 59(e) motion, arguing that the court should have considered an amendment he had filed to the 2254 motion before ruling against him.
Last week, the 5th Circuit made the business of filing a 59(e) motion a lot riskier. Pointing out that a 59(e) can be a second-or-successive post-conviction motion just as easily as can be a Rule 60(b) motion, the Court held that if it decides the motion is “a timely filed motion to alter or amend the judgment under Federal Rule of Civil Procedure 59(e), then the deadline for filing a notice of appeal would be tolled until the entry of the order disposing of that motion. However, a purported Rule 59(e) motion that is, in fact, a second or successive Section 2254 application is subject to the restrictions of the Antiterrorism and Effective Death Penalty Act and would not toll the time for filing a notice of appeal.”
John was lucky: the appellate court said his 59(e) motion was legit. But there’s a caution here for inmates filing 2254s and 2255s: a 59(e) motion is not necessarily a time-stopper.
Uranga v. Davis, Case No. 15-10290 (5th Cir., Jan. 12, 2018)
– Thomas L. Root
