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

WHEN TOO MUCH IS MORE THAN ENOUGH

You pretty much only get one shot trying to convince your judge you were wrongly convicted in a habeas corpus motion under 28 USC § 2255 (except for a few circumstances not relevant here). But how about the “saving clause” in § 2255(e) which lets an inmate use another route to file habeas corpus when a § 2255 petition “is inadequate or ineffective to test the legality of detention?”

Roberto Beras, convicted of using his check cashing/money transfer business to launder millions in drug proceeds, figured § 2255(e) meant he could file a § 2241 petition for habeas corpus if the § 2255 no longer worked (because it had already been filed and denied in the 2nd Circuit, and two requests to file successive § 2255s denied as well).

Roberto figured the Supreme Court’s 2008 Cuellar v. United States decision was his ticket home. So even while his § 2255 motion was pending in New York, Roberto was filing § 2241 habeas corpus motions wherever he happened to be. In two petitions filed in U.S. District Court for the Northern District of Ohio, he claimed he was innocent under the Cuellar statutory interpretation decision, but the Northern District court disagreed, finding Roberto would have been found guilty even under Cuellar. When Roberto was transferred to a facility in the Western District of Louisiana, he filed the same claim again.

Last week, the 5th Circuit threw out Roberto’s latest § 2241 petition as an “abuse of the writ.”

The § 2255(e) “saving clause” permits an inmate to file a 28 USC § 2241 petition based on new interpretations of federal statutes – like Cuellar – when the claim was previously “foreclosed by circuit law at the time when it should have been raised” and when the “retroactively applicable decision establishes that the petitioner may have been convicted of a nonexistent offense.” But, the Circuit said, that wasn’t the issue here. Instead, Roberto’s § 2241 should be dismissed as “an abuse of the writ of habeas corpus.”

“Abuse of the writ” is a common-law based “body of equitable principles informed and controlled by historical usage, statutory developments, and judicial decisions.” Under 28 USC § 2244(a), the Circuit held, it can dismiss a successive habeas application as an “abuse of the writ” where the movant raises a claim in a subsequent petition that either was raised or could have been raised in an earlier petition.

The 5th said Roberto “has filed claims in at least four circuits and for nearly twenty years. To allow him to repeat the same claim – heard and denied by another circuit – would be to condone forum-shopping… Perpetual disrespect for the finality of convictions disparages the entire criminal justice system.”

Beras v. Johnson, Case No. 18-30684, 2020 U.S. App. LEXIS 33058 (5th Cir Oct 20, 2020)

– Thomas L. Root