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Wright Was Wrong About Mathis – Update for September 26, 2019

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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.

6TH CIRCUIT REFUSES MATHIS CLAIM IN 2241 PETITION

Congress intended that all post-conviction federal conviction and sentence claims be heard only in a § 2255 motion. But 28 USC § 2255(e) contains a “saving clause” that lets a prisoner file a 28 USC § 2241 habeas corpus petition when the § 2255 motion “is inadequate or ineffective to test the legality of his detention.”

wrong190930Prisoner Bill Wright believed that after the Supreme Court decided Mathis v. United States, his predicate Maryland drug conviction was no longer a “serious drug offense” that qualified him for a 15-year Armed Career Criminal Act sentence. He had already filed and lost a § 2255 motion well before Mathis was decided, so he filed a 28 USC § 2241 petition under the § 2255(e) saving clause.

Last week, the 6th Circuit agreed that under post-Mathis analysis, the Maryland conviction did not count toward ACCA, and that Bill should not have been given a 15-year mandatory minimum sentence. But the substance did not matter, because procedurally, Bill was out of luck.

The 6th said that a “prisoner who has already filed a § 2255 motion and cannot file another one cannot access § 2241 just because a new Supreme Court case hints his conviction or sentence may be defective. Rather, the prisoner must also show that binding adverse precedent (or some greater obstacle) left him with no reasonable opportunity to make his argument any earlier, either when he was convicted and appealed or later when he filed a motion for post-conviction relief under § 2255. Otherwise, § 2255 is simply not inadequate or ineffective to test his claim.”

dictum160805In Bill’s case, the Circuit said, there was not a prior 4th Circuit holding that the Maryland drug conviction was or was not a “serious drug offense,” even before Mathis. Only one case had ever considered the Maryland statute, and there the court merely assumed it was a “serious drug offense.” The 6th said that such dictum, something other the actual holding in the case, was not binding precedent. What’s more, Mathis was nothing new. It clarified how to categorize prior convictions, but even the Supreme Court said in the decision that “for more than 25 years, we have repeatedly made clear that application of ACCA involves, and involves only, comparing elements” and “our precedents make this a straightforward case.”

The 6th said Bill did not qualify for the § 2255(e) “saving clause,” no matter how right he was on the merits of his claim.

Wright v. Spaulding, 2019 U.S. App. LEXIS 28325 (Sept. 19, 2019)

– Thomas L. Root

Sisyphus Keeps Pushing – Update for September 25, 2019

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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.

NOTHING HAPPENS FAST – PART 2

Complaining about how long it takes district courts to act on 28 USC § 2241 habeas corpus petitions and 28 USC § 2255 motions is even more common that complaining about BOP’s sloth in updating records. And the complaints are just as effective, which is to say, not very.

delay190925

Most of the people who hang around a prison law library can tell you that habeas corpus is supposed to happen quickly. They cite 28 USC § 2243’s requirement that the judge “shall forthwith award the writ or issue an order directing the respondent to show cause.” And they quote the 1963 Supreme Court decision in Fay v. Noia that habeas corpus is intended to “provide a prompt and efficacious remedy for whatever society deems to be intolerable restraints.”

But what is “prompt and efficacious?” It turns out, the courts define “prompt” in geologic terms. Last week, the 4th Circuit denied a petition for writ of mandamus filed by Mustafa Muhammad.

Mandamus is a wonderful device. A writ of mandamus is an order issued by a court directing an official to take some action which is not discretionary. Or, as in this case, mandamus is an order of a higher court directing a lower court to take such a non-discretionary action. Mandamus cannot direct the lower court to grant or deny a pending action, but it can order the judge to do something.

Mustafa filed his § 2255 motion in 2016. It has been awaiting a district judge’s decision since January 2017. He filed a petition for mandamus with the U.S. Court of Appeals last February, asking that court to order the district court to act one way or the other on his § 2255 motion. The petition apparently convinced the lower court to act, because it finally denied the § 2255 motion two months ago, 34 months after he filed it.

Still, it is troubling that the district court did not act for five months after the mandamus action was filed, and the 4th took a whopping seven months to act on a petition asking it to order that a dilatory lower court finally take action. Oh, the irony.

Last week, the 4th also denied mandamus to Rick Chestnut, a prolific civil action and habeas filer (PACER shows he has filed over three dozen cases in the last five years). Rick filed a § 2241 petition in March, complaining about irregularities in a disciplinary hearing. When he had gotten no response from the district judge by the first week of June, he filed a mandamus petition with the 4th Circuit.

nuclear190925Although the district court has passed six months without even asking the government to answer, the Circuit said, “We find the present record does not reveal undue delay in the district court.” The language is curious, suggesting that there is some kind of delay that is “due.” This seems to be at odds with the 28 USC § 2243 “forthwith” standard, not to mention Fay v. Noia’s “prompt and efficacious” language.

Mandamus has always been the “nuclear option” for people whose post-conviction § 2241s and § 2255s are languishing. I have never favored it, because it is reasonably to anger the very judge who is to be deciding the merits of your case. Mandamus is a filing that is the legal equivalent of tattling on the teacher’s pet to the teacher. It usually irritates the teacher’s pet – who immediately finds out you ratted him or her out – and hardly ever gets favorable results from the teacher.

In re Muhammad, Case No. 19-1210 (4th Cir. Sept. 19, 2019)
In re Chestnut, Case No. 19-1595 (4th Cir. Sept. 20, 2019)

– Thomas L. Root

Sisyphus Had Nothing on Us – Update for September 24, 2019

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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.

NOTHING HAPPENS FAST – PART 1

sisyphus190924Remember that Greek guy who kept rolling the rock up the hill, only to have it roll back down, and then he’d have to do it again? Yeah, that Sisyphus character… Legal combat with the Bureau of Prisons over the agency’s glacial pace in updating sentences to add the additional 7 days-a-year good time credit is something like that.

Last December, the First Step Act amended the wording of 18 USC 3624(b)(1) to correct a Congressional oversight. Congress had always intended that federal inmates get 54 days per year good-conduct credit, but it had written the statute so badly that the BOP was able to interpret 54 days to really mean 47 days. No fooling. The First Step Act was to fix that.

onecar190924But trust Congress to screw up a one-car parade… even the “fix” was messed up. Congress meant that inmates would immediately retroactively receive seven extra days for every year they had served in their sentences, the be only 47. But the statute was unclear, and the BOP took the position that the extra seven days would only be effective on July 19th (180 days after the statute passed).

Even that hasn’t worked. Since July 19th, I have been bombarded with emails from inmates that the BOP has yet to correct their sentences to add the extra seven days per year. The BOP complains that the process is labor-intensive, and it’s moving as fast as it can.

Attempts to address the problem judicially has thus far come to naught. Case in point: Tim Greene, doing a long sentence for bank robbery, was due to be released August 9th. But with the additional 7 days a year, his release date would be moved back to March 29. He filed a habeas corpus petition in the Northern District of Texas last February, arguing that he was due the extra good time right away, and should be released at the end of March.

The District Court dismissed the petition as premature, because July 19th had not yet come around, and Tim appealed. By now, it was early June. He filed his brief, a motion for expedited consideration, and a request for conditional release. But nothing happened fast. The government filed its brief a month later, and Tim replied on July 18. The next day, the BOP kicked him out the door, which is exactly what would have happened had Tim done nothing.

nothing190924Last week, the 5th Circuit finally ruled. It held the BOP was right that the extra goodtime only became effective on July 19, making Tim’s petition premature. Because Tim got out July 19, the requests for expedited consideration and conditional release were dismissed as moot.

There are undoubtedly habeas cases in the pipeline over the BOP’s failure to update release dates by applying the extra goodtime, a failure that messes with release plans and halfway house/home confinement placement. But as Tim’s case – which took seven months start to finish – shows, nothing happens fast.

Greene v. Underwood, 2019 U.S. App. LEXIS 28512 (5th Cir. Sept. 20, 2019)

– Thomas L. Root

President’s Focus on Immigration Reflected in Increased Federal Prosecutions – Update for September 23, 2019

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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.

TRUMP’S FOCUS ON IMMIGRANTS REFLECTED IN NEW SENTENCE DATA

The US Sentencing Commission’s 3rd Quarter Preliminary Fiscal Year 2019 Data, released last week, shows that the Dept. of Justice has responded to President Trump’s preoccupation with illegal immigrants. Immigration cases increased from 34.7% to 37.7% (an increase of almost 9%, for the math-challenged), but drug prosecutions fell 1.2% and fraud cases fell 0.8%. Immigration offenses were only 30.5% of total prosecutions in 2017, meaning that in the last two years, the use of federal criminal law resources to prosecute (and imprison) illegal immigrants has increased by over 22%.

Piechart190923If DOJ’s pace of prosecutions in 2019 continues through the end of the fiscal year next week, federal criminal cases will have increased by about 4.3% over last year. Of course, this assumes that the rate of prosecutions remains the same throughout the year, but if the assumption holds, it is clear that reduction of mass incarceration is a Congressional concern, and not so much one for the Executive Branch.

There is a glimmer of good news, however. The average federal sentence continues to fall, from 44 months in FY 2018 to 43 months in the first three quarters of FY2019. In 2017, half of all defendants received sentences of under 21 months and half received sentences of more than 21 months. So far in FY 2019, half of all defendants got sentences under 18 months, and half got over.

U.S. Sentencing Commission, Quarterly Data Report (Sept. 17, 2019)

– Thomas L. Root

Dope Smokers Knew They Were Drug Users (and Dog Bites Man) – Update for September 18, 2019

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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.

6TH CIRCUIT SAYS KNOWING STATUS IN REHAIF IS ENOUGH

A couple of marijuana aficionados (we’ll call ’em Cheech and Chong), were arrested smoking pot in a car with a couple of guns present. They were convicted of being unlawful drug users in possession of a firearm under 18 USC § 922(g)(3).

cheech190918A little-appreciated portion of § 922(g), the so-call felon-in-possession-of-a-firearm statute, is that it does not just prohibit convicted felons from possessing a gun. It also prohibits a laundry list of other people from possessing one as well: wife-beaters, people who are nuts, people who have been slapped with a civil protection order, illegal aliens, people on the lam, people who were thrown out of the Army, and dope-smokers. Really. Read the statute.

Cheech and Chong appealed, and while that appeal was pending, the Supreme Court handed down Rehaif v. United States, which held that a § 922(g) conviction requires that a defendant knows that he is in a class of people prohibited from possessing firearms, and that he knowingly possesses the gun. Cheech and Chong raised Rehaif in the Court of Appeals, arguing the government had not shown they knew they were unlawful users of a controlled substance, and even if they did, the government had not shown they knew they shouldn’t have the gun.

On plain error review, the 6th Circuit affirmed the conviction. The record was full of Cheech’s and Chong’s Facebook posts bragging about “smoking dope wit da demons” and “getting high and drunk da whole day.” The Court of Appeals said, “The jury heard that the defendants were arrested with marijuana, posted pictures of themselves using marijuana, commented about using marijuana, and posted a video of them smoking marijuana… The defendants dispute this evidence, but not on the ground that they were unaware the substance was marijuana, or unaware they were ‘unlawfully’ using it.”

marijuanahell190918But Cheech and Chong argued that even if they knowingly used marijuana, Rehaif required that the Government prove each defendant ‘knew he was prohibited from possession [of a firearm] because he was an unlawful user of a controlled substance’.” The Court admitted, “it is at least plausible that they were unaware that they were prohibited from possessing firearms under a subsection of 18 U.S.C. § 922(g) due to their regular and repeated drug use,” but held that Rehaif “did not graft onto § 922(g) an ignorance-of-the-law defense by which every defendant could escape conviction if he was unaware of this provision of the United States Code.” The Circuit said Rehaif requires that “the Government must prove . . . that a defendant knew he belonged to the relevant category of persons barred from possessing a firearm.”

United States v. Bowens, 2019 U.S. App. LEXIS 27488 (6th Cir. Sept. 12, 2019)

– Thomas L. Root

Congress Bought the Gun. Now How About Some Ammo? – Update for September 17, 2019

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MORE FIRST STEP MONEY NEEDED, GROUPS SAY

More funds are needed to implement the First Step Act, a coalition of 14 criminal justice reform organizations told the Senate Appropriations Committee last week, as the Committee begins consideration of the Dept. of Justice budget for the next fiscal year that begins on October 1.

money160118Reformers want the Bureau of Prisons to get the full $75 million annual appropriation that was authorized in the law. DOJ has asked for much less First Step Act money, and so far has not formally asked congressional appropriators to raise the total, Inimai Chettiar of the Justice Action Network (JAN), one of the groups that is pressuring for a higher allocation, told The Crime Report.

“We cannot leave it to the Department of Justice to reallocate existing funds to implement these reforms — spreading thin the already limited resources within the Bureau of Prisons,” the groups told Sen. Jerry Moran (R-Kansas) and Sen. Jeanne Shaheen (D-New Hampshire), the chairman and ranking member of the subcommittee overseeing DOJ spending.

In a separate letter, JAN expressed concern about the proposed DOJ risk assessment tool, called PATTERN, which is currently in final review. PATTERN includes a number of “static and dynamic risk factors” to assess a prisoner’s risk of recidivism. JAN complained that the system has too few dynamic factors, which will make it harder for inmates to make changes that will lower their risk factors.

JAN called for more “dynamic” factors to be incorporated into PATTERN to assess and effectively monitor changes in prisoners’ risks and needs throughout their sentences.

The Crime Report, Reform Groups Seek More First Step Act Funding (Sept. 12)

– Thomas L. Root

7th Circuit Oks 2241 Filings for Mathis ACCA Claims – Update for September 16, 2019

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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.

7TH CIRCUIT DOES NOT REQUIRE TILTING AT WINDMILLS

“Tilting at windmills,” taken from Cervantes’ classic “Don Quixote,” is typically used to suggest engaging in an activity that is completely futile.

quixote190916Engaging in a hopeless venture is more common than you think. A lot of post-conviction defendants trying to raise Mathis claims – that prior offenses are not violent or overbroad controlled substance crimes using the categorical approach – have run into a procedural brick wall. Mathis provides procedural guidance on how to interpret statutes. It does not announce a new constitutional rule, and it does not narrow the application of a substantive criminal statute to make prior conduct no longer criminal. People trying to file Mathis § 2255 motions have been frustrated, and people filing § 2241 petitions for habeas corpus have often found the going rough.

Last week, the 7th Circuit tackled the issue, ruling that Mathis was “an intervening case of statutory interpretation” that “opens the door to a previously foreclosed claim.” Todd Chazen, who is in a federal prison within the 7th Circuit, filed a petition for habeas corpus under 28 USC § 2241, arguing that under Mathis, his prior conviction for Minnesota third-degree burglary no longer counted for his Armed Career Criminal Act sentence. He was right: under both 7th and 8th Circuit law, the second- and third-degree Minnesota burglary statute had been held to no longer count for ACCA purposes.

The government, however, argued that when Todd filed his § 2255 motion six years ago, he could have made the same argument, even though Mathis had not yet been decided. The Circuit disagreed:

“In 2013—at the time Chazen first moved for post-conviction relief under § 2255—”the law was squarely against” him in that it foreclosed the position he currently advances—that Minnesota burglary is not a violent felony under the Act.

“We also conclude that Mathis can provide the basis for Chazen’s § 2241 petition… Our precedent has focused on whether an intervening case of statutory interpretation opens the door to a previously foreclosed claim. Mathis fits the bill. Mathis injected much-needed clarity and direction into the law under the Armed Career Criminal Act… It is only after Mathis — a case decided after Chazen’s § 2255 petition that the government concedes is retroactive — that courts, including our court and the 8th Circuit, have concluded that Minnesota burglary is indivisible because it lists alternative means of committing a single crime…

notiltquixote190916“In these circumstances, where the government has conceded that Mathis is retroactive and Chazen was so clearly foreclosed by the law of his circuit of conviction at the time of his original § 2255 petition, we conclude that Chazen has done enough to satisfy the savings clause requirements.”

In other words, if the Circuit law is settled, you don’t have to tilt at windmills in your § 2255 motion. If the interpretation of the statute changes later, you can take advantage with a § 2241 petition.

Chazen v. Marske, 2019 U.S.App.LEXIS 27142 (7th Cir. Sept. 9, 2019)

– Thomas L. Root

He Might Have Known About the Felon-Gun Thing – Update for September 13, 2019

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SOME THINGS PROVE THEMSELVES

resipsa190913There’s a doctrine we all had to learn in first-year law school torts class known as “res ipsa loquitur.” That’s Latin (which the law uses a lot because when things are obscure, you can charge clients more when you have to explain them), and translates as “the thing speaks for itself.”

In last June’s Rehaif v. United States decision, the Supreme Court explained the elements that the government has to prove for a felon-in-possession conviction under 18 USC § 922(g)(1), elements which everyone had been getting wrong for years. Samir Benamor was on direct appeal of his felon-in-possession conviction when he raised the Rehaif argument, maintaining that the government had not proven that he knew he was a felon prohibited from possessing firearms.

Because Sammy had not raised the issue in the trial court, the 9th Circuit ruled he had to show plain error under Federal Rule of Criminal Procedure 52(b). I seriously doubt the Circuit was right about applying Rule 52(b), but it did, and it concluded that Sam was out of luck.

There was no doubt that the district court plainly erred by not instructing the jury that it had to find that Sammy knew he was a felon ineligible to possess a firearm. But the “plain error” standard also requires proof that but for the error, the outcome of the proceeding would have been different. One of Sammy’s priors was for being a felon in possession of a gun. The Court sort of thought that that conviction spoke for itself.

gunb160201The 9th Circuit said, “At a minimum, the prior conviction for being a felon in possession of a firearm proved beyond a reasonable doubt that Defendant had the knowledge required by Rehaif and that any error in not instructing the jury to make such a finding did not affect Defendant’s substantial rights or the fairness, integrity, or public reputation of the trial.”

Yeah, you’d think that having been convicted of being a felon in possession of a gun once before would have alerted Sammy that he was a convicted felon prohibited from having a gun. As the law might say, that “res” probably “ipsa loquiturs.”

United States v. Benamor, 2019 U.S. App. LEXIS 26793 (9th Cir. Sept. 5, 2019)

– Thomas L. Root

4th Circuit Strikes Blow Against Lousy Prison Medical Care – Update for September 12, 2019

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4TH CIRCUIT HOLDS OFFICIAL’S KNOWLEDGE OF POLICIES AND DENIAL OF GRIEVANCES CAN ESTABLISH 8th AMENDMENT DELIBERATE INDIFFERENCE

hepc190912The 4th Circuit handed down a fascinating 8th Amendment opinion last week that established a prison’s obligation to treat hepatitis C, as well as expanding on the universe of officials subject to 8th Amendment claims.

For those of you who dozed through high school government class, the 8th Amendment prohibits cruel and unusual punishment. The Courts have defined that over the years to include the deliberate indifference of prison officials to serious medical needs of inmates.

Carl Gordon, a Virginia state inmate, had hepatitis C. The Virginia prison system had a policy of not treating hep C in people eligible for parole or close to the door, purportedly because they might leave in the middle of treatment, which posed a risk to their health. Carl was eligible for discretionary parole in 2008, despite the fact his actual “out” date was in 2028, 20 years later. He repeatedly filed administrative grievances demanding treatment for hepatitis C and warning of the deadly effects of the disease if left untreated.

The prison health director, who was familiar with the Virginia policy on hep C treatment, kept denying Carl’s grievances, telling Carl simply to go to sick call (despite the fact the director knew that at sick call, Carl would be refused hep C treatment because of the policy).

Finally, this “dog chasing its tail” saga reached federal court.

dogtail190912“By the very nature of the health director’s position,” the Circuit said, “he was personally involved in reviewing and enforcing the policy that prevented Carl Gordon from receiving HCV treatment… And the health director’s consistent failure to revise the Guidelines to remove the parole-eligibility exclusion constitutes personal involvement in the denial of HCV treatment for Gordon… it is inconsistent with the 8th Amendment for a prison official to withhold treatment from an inmate who suffers from a serious, chronic disease until the inmate’s condition significantly deteriorates.”

Gordon v. Schilling, 2019 U.S. App. LEXIS 26676 (4th Cir. Sept. 4, 2019)

– Thomas L. Root

Spray Paint and Violence – What is Physical Force Against Property? – Update for September 11, 2019

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10TH CIRCUIT ADDRESSES WHEN FORCE AGAINST PROPERTY IS VIOLENT

giphyOne twist in 18 USC § 924(c)’s definition of “crime of violence” is that, unlike 18 USC § 16(b) or the Armed Career Criminal Act, the use of physical force under § 924(c) can be either against a person or his property. For a offense to be a “crime of violence,” it must require violent physical force. But when is force against someone’s property “violent physical force?”

Aaron Bowen was convicted of witness intimidation and brandishing a gun while doing so, in violation of 18 USC § 924. The witness intimidation statute, 18 USC § 1513, required that one retaliate against a witness by causing bodily injury to a person or by damaging the person’s property. Aaron filed a post-conviction motion under 28 USC § 2255 arguing that after Johnson and Davis, witness intimidation was not a crime of violence, and cannot support a § 924(c) conviction.

Last week, the 10th Circuit agreed. It first joined other circuits in holding that Davis is retroactive for § 2255 purposes. Because Davis declared § 924(c)’s residual clause unconstitutional, Aaron’s witness intimidation conviction could only support a § 924(c) conviction if it required violent physical force against a person or property.

paintcar190911

The 10th concluded that one could damage property without using violent physical force. It suggested, for example, that “although spray-painting another’s car damages that person’s property, we cannot conclude that the mere fact that it damages property means that it requires ‘violent force’.” Because the statute was not divisible between injuring people and damaging property, and because damaging property does not require violent force, the statute is not a crime of violence. Thus, Aaron’s § 924(c) conviction was thrown out.

United States v. Bowen, 2019 U.S. App. LEXIS 26554 (10th Cir. Sept. 3, 2019)

– Thomas L. Root