All posts by lisa-legalinfo

10th Circuit Says Right to § 2255 Hearing Just Requires Solid Claim, Not An Overwhelming Proof – Update for September 3, 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.

SAYIN’ IT DON’T MAKE IT SO

aintso190903Over 50 years ago, the Supreme Court made it clear in Machibroda v. United States that a hearing should be held whenever a post-conviction motion under 28 USC § 2255 does not “conclusively show that the prisoner is entitled to no relief.”

Yet, § 2255 more than a half century later, hearings remain as rare as hen’s teeth, as district courts routinely contort themselves and the record to deny 2255s based on tissue-thin justifications.

The 10th Circuit last week gave district courts a well-needed wake-up call that a defendant is not proven conclusively wrong simply because a defense lawyer’s affidavit says so.

Larry Herring filed a 2255 claiming his trial attorney had been ineffective for not filing a notice of appeal after Len asked him to do so. His former attorney responded with an affidavit saying that he had told Larry that he did not do appeals, and had given his client a list of lawyers to contact. The lawyer stated emphatically that “I was never asked by Mr. Herring to file an appeal on his behalf.”

Citing that affidavit and arguing that the court told Lenny at sentencing about his appeal rights, the Government argued that Len’s complaint was meritless. The district court agreed.

justsayin190903Last week, the 10th Circuit reversed, reminding courts that attorney affidavits contradicting the defendant do not justify denial: “When a district court refuses to grant an evidentiary hearing,” the Circuit ruled, “first, we ask whether the defendant’s allegations, if proved, would entitle him to relief… Here, we hold that, if true, the facts Herring alleged in his section 2255 motion to support his ineffective assistance of counsel claim would entitle him to relief. Therefore, the record does not ‘conclusively show’ that Herring is entitled to no relief, and, accordingly, the district court abused its discretion by failing to hold an evidentiary hearing to resolve Herring’s section 2255 motion.”

As for the argument that the district court advised Herring of his rights and defense counsel gave him some appellate attorneys’ names (none of whom he ever contacted), the 10th said, “Trial attorneys cannot outsource their constitutional obligation to advise their clients about filing an appeal nor their duty to make a reasonable effort to discover their clients’ wishes. Once the duty to consult is invoked by a defendant expressing interest in appealing, trial attorneys must properly advise their client and assess their client’s wishes before withdrawing from the case.”

Herring v. United States, Case No. 18-4023, 2019 U.S. App. LEXIS 25759 (10th Cir. Aug. 27, 2019)

– Thomas L. Root

Petition Your Way to Clemency – Update for August 30, 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.

ANOTHER ROUTE TO CLEMENCY (BUT NOT AN EASY ONE)

ulbricht190830Ross Ulbricht (known as “Dread Pirate Roberts” to his friends, or sometimes just “DPR” for short) is serving a life term at the sunny U.S. Penitentiary in Tucson for having set up an Internet dark-web marketplace called “Silk Road,” where drugs, guns and criminal acts were bought and sold for bitcoins. As of this week, his change.org petition seeking support for a request for a Presidential pardon has generated an unprecedented 200,000 online signatures.

The petition, which asks President Trump to grant Ross’s application for pardon, is sponsored by the inmate’s mother and sister. His mother told Bitcoinist.com, that her son “is a good person, an idealist, and a libertarian.” She said, “I didn’t think of him as someone who was interested in technology pers se, but he was interested in Bitcoin because he was a freedom guy. He worked on the Ron Paul [Presidential] campaign. He was very interested in Bitcoin as a means to monetary freedom for people.”

Whether 201,403 signatures (the count as of 8 am EDT today), including those of some from politicians and movie celebs, is enough to motivate President Trump to release DPR, a man convicted of drug trafficking on a massive scale, is impossible to predict.

dreadedpirate190830The change.org page, written by Ross’s mother, says, “My son, Ross Ulbricht, is a first-time offender serving a double life sentence without parole, plus 40 years, for a website he made when he was 26 years old and passionate about free markets and privacy. Ross―an Eagle Scout, scientist and peaceful entrepreneur―had all non-violent charges at trial. He was never prosecuted for causing harm or bodily injury and no victim was named at trial.”

Far be it from me to interfere with a mother’s loving narrative, but the facts in the Dread Pirate’s case were a bit uglier than that. The 2nd Circuit said in its decision denying Ross’s appeal:

[T]he facts of this case involve much more than simply facilitating the sale of narcotics. The district court found by a preponderance of the evidence that Ulbricht commissioned at least five murders in the course of protecting Silk Road’s anonymity, a finding that Ulbricht does not challenge in this appeal. Ulbricht discussed those anticipated murders callously and casually in his journal and in his communications with the purported assassin Redandwhite. For example, in connection with the first hit, he wrote to Redandwhite that “FriendlyChemist is a liability and I wouldn’t mind if he was executed.” In the course of negotiating the price for the killing, DPR claimed that “[n]ot long ago, I had a clean hit done for $80k,” but that he had “only ever commissioned the one other hit, so I’m still learning this market.” He then paid $150,000 in Bitcoins for the murder, and he received what purported to be photographic documentation if its completion. Ulbricht then wrote in his journal that he “[g]ot word that the blackmailer was executed,” before returning quickly to other tasks associated with running the site.

In negotiating the other four killings, Ulbricht initially resisted multiple murders. He instructed Redandwhite to “just hit Andrew [usernames Tony76 and nipplesuckcanuck] and leave it at that.” Redandwhite said he could do it for “150 just like last time,” but that he would not be able to recover any of DPR’s money if he killed only one person because he would have to commit the murder outside of the victim’s home or office where he stored his funds. Id. If Ulbricht wanted him to recover money, the self-professed assassin claimed, he would have to kill not only Tony76, but also his three associates. DPR responded that he would “defer to [Redandwhite’s] better judgment and hope[d] [to] recover some assets” from the hit. He then sent $500,000 in Bitcoins, the agreed-upon price for four killings, to Redandwhite. As the district court stated in discussing Ulbricht’s journal entries concerning these projected murders, his words are “the words of a man who is callous as to the consequences or the harm and suffering that [his actions] may cause others.”

The record was more than sufficient to support the district court’s reliance on those attempted murders in sentencing Ulbricht to life in prison.

don190830Under current interpretation, a mere solicitation to commit murder is not a crime of violence under United States v. Davis, but we would be hard-pressed to call Ross a “peaceful entrepreneur.” Our local herbal tea lady is a peaceful entrepreneur, unless she has ordered a hit on the Starbucks across the street.

Still, we’ll see what effect 200,000 online signatures have on President Donald Trump. Unless it’s reported on “Fox and Friends,” we suspect not much.

Bitcoinist.com, Petition for Clemency for Silk Road Founder Nears 200k Signatures (Aug. 19)

change.org, Clemency for Ross Ulbricht, Serving Double Life for a Website

United States v. Ulbricht, 858 F.3d 71, 131 (2nd Cir. 2017)

United States v. Davis, — U.S. —, 139 S. Ct. 2319, 204 L.Ed.2d 757 (June 24, 2019)

– Thomas L. Root

We’ve Got the Shorts – Update for August 29, 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.

THE SHORT ROCKET

Inmate has Right to Video at DHO

rocket190620The 4th Circuit held last week that an inmate defending himself in a disciplinary proceeding, where he could lose good time as a punishment, has a qualified right of access to BOP video surveillance evidence and the qualified right to compel official review of such evidence. The Court relied on Wolff v. McDonnell, a 1974 Supreme Court decision defining the extent of inmates’ procedural due process rights in disciplinary proceedings.

Lennear v. Wilson, 2019 U.S. App. LEXIS 25340 (4th Cir. Aug. 23, 2019)

Transgender Inmate Has 8th Amendment Right to Surgery

The 9th Circuit last week held that an Idaho state inmate had shown that he suffered from gender dysphoria (believed he was a different gender than his body reflected), that his need for surgery to change his gender was a serious medical need, and that prison authorities had not provided that treatment despite knowledge of his ongoing and extreme suffering and medical needs. The Court rejected the State’s position that there was a “reasoned disagreement between qualified medical professionals. The Court emphasized that its analysis was individual to the inmate plaintiff, “and rested on the record of this case.”

Edmo v. Corizon, Inc., 2019 U.S. App. LEXIS 25330 (9th Cir. Aug. 23, 2019)

Murder Most Foul… But Not Violent

violent170315The 9th Circuit last week also held that 2nd-degree murder (18 USC §§ 1111 and 1153) is not a crime of violence that can support an 18 USC § 924(c) conviction. The Court held that because 2nd-degree murder can be committed recklessly, it does not categorically constitute a “crime of violence” under the elements clause (924(c)(3)(A)), and under the Supreme Court’s June United States v. Davis decision, the crime likewise cannot constitute a crime of violence under the residual clause.

Begay v. United States, 2019 U.S. App. LEXIS 25196 (9th Cir. Aug. 22, 2019)

Serving Mankind Has Its Limits

The 2nd Circuit ruled last week that a supervised release condition that a defendant perform 300 hours of community service a year during supervision exceeded the Guidelines and was not reasonably related to any of the applicable purposes of sentencing listed at 18 USC § 3553(a), and involved a “greater deprivation of liberty than needed to effectuate the goals of sentencing.” The Court concluded that USSG §5F1.3 advised sentences to not call for more than 400 hours of community service as a condition of supervised release.

Hoodie reading 'Crime and community service'.What’s more, the community service, imposed on a defendant convicted of insurance fraud, was not reasonably related to any relevant sentencing factor and involved a greater deprivation of liberty than is reasonably needed to achieve the purposes of sentencing. The district court observed the defendant lived with his parents, has a young daughter, worked as an Uber and Lyft driver, and “was convicted of two serious crimes of fraud which adversely impacted the community at large.” But, the 2nd Circuit complained, the sentencing court did not explain how the defendant’s “particular circumstances‐‐his criminal history, his cooperation, the nature of his offense‐‐reasonably related to the need for community service.”

United States v. Parkins, 2019 U.S. App. LEXIS 24563 (2nd Cir. Aug. 19, 2019)

– Thomas L. Root

Ecclesiastes Was Right Where the BOP is Concerned – Update for August 27, 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.

THE OLD IS NEW AGAIN AS FORMER BOP DIRECTOR RE-ASSUMES HELM

nothingnew190827The supremely pessimistic and apochryphal author of Ecclesiastes in the Christian bible (Kohelet in the Talmud), King Solomon, complained in Chapter 1, Verse 9, that “The thing that hath been, it is that which shall be; and that which is done is that which shall be done: and there is no new thing under the sun.”

Welcome to the all-new BOP. 

As everyone knows by now, last Monday Attorney General William Barr unceremoniously fired interim BOP Director Hugh J. Hurwitz, replacing him with former BOP Director Dr. Kathleen Hawk Sawyer as interim director and former interim BOP Director Dr. Thomas R. Kane as interim assistant director.

Even before Epstein’s death, Justice Dept. officials reportedly expressed off-the-record frustration with senior BOP officials, but the management flaws found since high profile defendant Jeffrey Epstein killed himself at MCC New York Aug. 10 have angered DOJ leaders, including the attorney general, according to anonymous law enforcement officials quoted by the Washington Post.

hurwitz190827Robert Hood, a retired former warden at ADX Florence and a critic of BOP leadership, called Hawk Sawyer an “outstanding” choice. “After a lot of recent instability, Kathleen Hawk Sawyer brings stability and direction,” Hood said. “She’s been a warden, she’s been a trainer, and she means business. It’s breathtaking to hear that she’s back. It’s exciting for the staff, many of whom have only heard about her. They know she’s a nuts-and-bolts person and a very direct person to work with.”

Hood predicted that Hawk Sawyer, a psychologist, will move quickly to fix a major problem at the bureau — the number of senior positions that have gone unfilled or had their responsibilities delegated temporarily.

sawyer190827Hawk Sawyer is no newbie. She ran the BOP from 1992 to 2003, capping a career that began back in 1976 as a psychologist at FCI Morgantown. But it’s been 16 years since she last led the agency, and some say a lot has changed in the interim. Jonathan Smith, a prison rights attorney, says the BOP is “much more complicated than when she was last director, partially because the growth in population, partially because you see a much harsher and more punitive system.”

Smith told NPR that today’s BOP uses solitary confinement more frequently than it did in the past. He says the use of private prisons has skyrocketed, as has the privatization of services across the system. And perhaps most importantly, the federal prison population has jumped from 65,000 in 1992 to more than 177,000 in 2019.

NPR reported that during her tenure as BOP Director, Hawk Sawyer was thought of as a champion of rehabilitation, someone who pushed for education opportunities inside federal prisons.

Additionally, Hawk Sawyer has “a long track record advocating for ‘good-time credits’ as a way to motivate inmates to participate in programs for personal development,” according to the Washington Examiner. “She correctly realized that increasing good-time allowances could go a long way toward reducing the federal prison population and help maintain order in prisons too.”

With last year’s passage of the First Step Act, some of the changes to sentencing laws and good-time credits that Hawk Sawyer supported are now law. The reforms included in the First Step Act are based largely on state-level successes, including former tough-on-crime states, that have now instead become smart on crime — and soft on taxpayers.

inch190827Not everyone is excited by Hawk Sawyer’s appointment. A former AUSA turned defense attorney and former BOP official observed that in 2017 then-Attorney General Jefferson Beauregard Sessions III appointed Mark Inch, a retired Army major general, to run the system. After less than a year, General Inch – who tried to make changes within the BOP and to navigate a middle course, abruptly quit. Hawk Sawyer, a permanent replacement, was not named until this week, the authors complained,

 

when Barr appointed someone who previously served in the position for over a decade, and who contributed to the current problems plaguing the Bureau. This is not going to create systemic change. This reactive switch in leadership is pure optics. We need to ask this question: Why was General Inch, someone who tried to change the culture, ultimately replaced with a BOP veteran?

clusterfuck190827Regardless of one’s position on Hawk Sawyer’s appointment, there is general agreement that she faces an agency in disarray. “”Clusterfuck doesn’t begin to describe the current state of the BOP, and it dates far beyond the Trump administration,” David Safavian, deputy director of the American Conservative Union Foundation’s criminal justice reform center, told The Marshall Project this week. “Anyone who thinks BOP is a high performing organization has never been inside a federal prison.”

Part of the problem, according to Reason.com, is “that the BOP is its own secretive fiefdom. It’s incredibly hard for reporters, family members, and civil liberties groups to find out what goes on behind prison walls, much less hold officials accountable.”

Washington Post, After Epstein’s death, attorney general replaces leader at Bureau of Prisons (Aug 19)

The Huffington Post, Jeffrey Epstein Death Shines Light On Understaffed, Unaccountable Federal Prison System (Aug 15)

National Review, The Epstein Fiasco and the Flaws with Our Criminal-Justice System (Aug 22)

The Marshall Project, Epstein’s Death Highlights A Staffing Crisis in Federal Prisons (Aug 14)

Reason.com, Jeffrey Epstein Is Dead Because His Jailers Neglected Him. He’s Not the Only One. (Aug 15)

Washington Examiner, New Bureau of Prisons leadership should focus on rehabilitation (Aug 21)

Washington Examiner, AG William Barr must do more to fix dismal prison conditions (Aug 22)

The Hill, A better way to run the Federal Bureau of Prisons (Aug 22)

NPR, What’s Changed Since Kathleen Hawk Sawyer Last Headed Prison Bureau? (Aug 22)

– Thomas L. Root

Fair Sentencing Act Decisions Split the Courts – Update for August 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.

FAIR SENTENCING ACT LIMITATIONS ISSUE CREATING WIDE SPLIT IN FEDERAL COURTS

In my August 12th post, I noted the unfortunate 5th Circuit ruling in United States v. Hegwood. Hegwood held that a Fair Sentencing Act resentencing under § 404 of the First Step Act was a “limited resentencing,” and required the district court to apply all of the sentencing factors and law that applied at the original sentencing, except for a lower drug quantity offense level.

FSAsplit190826Ohio State University law professor Doug Berman noted in his Sentencing Law and Policy blog last week that an overlooked district court decision from the 6th Circuit, United States v. Payton, goes the other way on this “important and consequential” issue. Although predating Hegwood by a month, Payton provides a useful perspective on the issue from the other side.

The Payton court noted that a number of district courts have ruled that the First Step Act, read in conjunction with the provisions of 18 USC § 3582(c)(1)(B), does not authorize a full resentencing. “But a growing number of courts have found just the opposite,” the Court said,  “that the First Step Act vests the Court with broad discretion to resentence defendants considering the 18 USC § 3553(a) factors, including the case law and Guidelines in effect today.” The district court cited a number of district court decisions in support of its decision.

crackpowder160606The district court held that “the only way to impose a reduced sentence is to consider the § 3553(a) factors and Guidelines, including the defendant’s record in prison… This interpretation is in keeping with the purposes of the First Step Act which was enacted, in part, to: provide a remedy for individuals subjected to overly harsh and prejudicial penalties for crack cocaine offenses; decrease the number of people caged in our overcrowded prisons largely because of the War on Drugs; and save taxpayer dollars.”

Professor Berman said, “It seems to me quite possible that this issue could be the first (of many?) matters related to the implementation of the First Step Act that makes its way to the U.S. Supreme Court.”

United States v. Payton, 2019 U.S. Dist. LEXIS 110292, 2019 WL 2775530 (E.D.Mich. July 2, 2019)

Sentencing Law and Policy, Another perspective on the scope of First Step Act crack resentencing (Aug 20)

– Thomas L. Root

7th Circuit Gets Metaphysical (Inadvertently) – Update for August 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.

FRAUD OR FORGETFULNESS?

In classical Greek. the word “αλήθεια” (we American-speakers would say “aletheia”) means truth.  In Greek mythology, the waters of Lethe (“λήθη” for you purists) induced one into a state of forgetfulness. Literally, aletheia is defined as the opposite of the state of forgetfulness.

dontforget190823Heavy stuff, huh? Not for a number of district courts that require inmate filers of civil cases to list every case they have ever been involved in. The information is collected to determine inmate compliance with the “three strikes” rule of 28 USC § 1915(g), which prohibits a prisoner from bringing a civil case if he or she has had three prior civil actions or appeals dismissed as “frivolous, malicious, or fail[ing] to state a claim upon which relief may be granted…” The rule was adopted as part of the Prison Litigation Reform Act in 1996, a measure intended to reduce the amount of prisoner litigation clogging federal courts.

In the district courts demanding the disclosure, a prisoner who fails to list all of his or her prior cases, or provides incorrect information when listing them) is subject to having the suit dismissed because of “fraud on the court.”

The problem is that over years, inmates can forget details, lose legal papers, and just plain overlook cases. Last week, the 7th Circuit told district courts that fraud is not necessarily the opposite of truth. Sometimes, as the Greeks observed, the opposite of truth may just be forgetfulness.

forgetfulness190823The Circuit said that district judges must decide whether a prisoner’s omissions are intentional and material before throwing out inmate lawsuits. “In the PLRA context as elsewhere, it is essential to distinguish between a negligent, reckless, or even willful act, on the one hand, and a fraudulent act on the other. A finding of fraud opens a litigant to additional and heightened penalties and thus requires a showing of fraudulent intent.”

Greyer v. Illinois Dept. of Corrections, Case No. 18-1459 (7th Cir. Aug. 13, 2019)

– Thomas L. Root

Kansas U.S. Attorney Found in Contempt as Leavenworth Scandal Heats Up – Update for August 22, 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.

US ATTORNEY TAKES IT ON THE CHIN IN KANSAS EAVESDROPPING CASE

In a scathing order issued last week, a federal judge found the Kansas US Attorney’s Office in contempt of court for its pattern of misrepresentations, obfuscation and lack of cooperation during an investigation into a growing scandal over government eavesdropping on attorney-client conversations at a privately-run prison in Leavenworth.

eavesdrop190822A ruling by Kansas federal judge Julie Robinson capped a three-year probe looking at prosecutors’ unauthorized access to recordings of confidential phone calls and meetings between defense attorneys and their clients. Judge Robinson found that USAO Kansas prosecutors determined on their own that they could listen to the recordings, tainting a number of criminal cases along the way. At least three defendants in Kansas have had their sentences vacated or their indictments dismissed as a result of the scandal. More than a hundred others have filed petitions for similar relief.

The 188-page ruling accuses AUSAs of lying to defense counsel and the court, using video recordings of attorney-client meetings “to attempt to gain a strategic advantage over a defendant…” and then, despite court orders, destroying the “hard drives that could have provided information about access to the recordings.”

angryjudge190822In a companion case, Judge Robinson rejected arguments that defendants should not be allowed to challenge the USAO’s eavesdropping. The government claimed that plea waivers prohibited raising any prosecutorial misconduct except under the 5th Amendment. Judge Robinson wrote, “Petitioner clearly claims that the government’s misconduct deprived him of his Sixth Amendment right to effective counsel by intentionally intruding into his attorney-client relationship absent a legitimate justification. The government’s argument that waiver applies because prosecutorial misconduct can only arise in the context of the Fifth Amendment is simply a misstatement of constitutional law.”

At the same time, the judge dismissed the government’s argument that the defendant should have raised the issue on direct appeal: “The factual basis for Petitioner’s 6th Amendment claims was not reasonably available to him at the time of his direct appeal, due in large part to the government’s strategy of delay, denial, and deflection in the… case and its handling of attorney-client recordings…”

Kansas City Star, Judge holds federal prosecutors in contempt in Kansas (Aug. 15)

Findings of Fact and Conclusions of Law, United States v. Carter, Case No. 16-20032 (D.Kan. Aug. 13, 2019)

Memorandum Opinion and Order, United States v. Phommaseng, Case No. 15-20020 (Aug. 13, 2019)

– Thomas L. Root

Sentence Reduction and Davis Decisions Continue Apace – Update for August 20, 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.

A COUPLE OF 3582(c)(2) DECISIONS… AND A HANDFUL OF DAVISES

The 9th Circuit issued two decisions last week affecting 18 USC § 3582(c)(2) sentence reductions, one good, one not so good.

... and he's getting a better sentence reduction deal than you are.
… and he’s getting a better sentence reduction deal than you are.

United States v. Hernandez-Martinez: Some people seeking 2-level reductions in their drug sentences under the 2014 Guidelines Amendment 782 were denied because at sentencing, their courts had varied downward from their Guidelines sentencing ranges, and even the new 2-level reduction would have been above their original sentence. But if a defendant had a downward departure for helping the government, the 2-level reduction remained available, regardless of how sweet the original sentence might have been.

A number of defendants have argued that the 9th’s decision in United States v. Padilla-Diaz, which upheld the limited exception for substantial assistance departures as consistent with both the governing statutes and constitutional requirements, was irreconcilable with the Supreme Court’s later decision in Hughes v. United States. Last week, the 9th Circuit shot down 23 defendants making the claim.

The 9th held that Hughes only held that a sentence imposed under a Federal Rule of Criminal Procedure 11(c)(1)(C) plea agreement is “based on” the defendant’s Guidelines as long as that range was part of the framework the district court relied on in imposing the sentence or accepting the agreement. Because the intervening Hughes decision did not conflict with Padilla-Diaz, Padilla-Diaz’s conclusion still binds the Circuit to prohibiting 2-level reductions for defendants with downward variances below the amended sentencing range.

In United States v. Sainz, the defendant filed for the 2014 sentence reduction, and the government did not oppose it. The district court, however, ruled that the defendant’s plea agreement waived the right to seek relief under § 3582(c)(2). The 9th held that if the government does not raise the plea agreement as a defense, the issue is forfeited. The district court may not raise the issue itself.

Meanwhile, several cases applying the Supreme Court’s June 2019 United States v. Davis decision came down last week:

kidnapping190820In United States v. Brazier, the 7th Circuit held that kidnapping did not categorically match the “elements clause” of 18 USC § 924(c), because it may be accomplished without force, by “inveigling” or “decoying” a person without a threat of force, and by holding the person simply by locking him or her in a room, again without threat of violence. Because Davis invalidated the “residual clause” of 18 USC § 924(c), a kidnapping conviction could no longer support a § 924(c) consecutive sentence.

In the 5th Circuit United States v. Jones case, defendants were convicted of RICO and drug crimes, and add-on § 924(c) offenses. The jury verdict did not specify which crimes were relied on as the underlying counts for the § 924(c) convictions. Because Davis held that conspiracies to commit violent crimes (such as a RICO conspiracy) could not support a § 924(c) count, the case had to be remanded for the jury to decide whether the remaining drug offenses could support the § 924(c) convictions.

Finally, the 3rd Circuit followed the lead of the 11th, and ruled that five petitioners seeking to raise Davis issues on their 18 USC § 924(c) convictions were allowed to file second-or-successive 28 USC § 2255 motions doing so.

United States v. Hernandez-Martinez, Case No. 15-30309 (9th Cir. Aug. 13, 2019)

United States v. Sainz, Case No. 17-10310 (9th Cir., Aug. 12, 2019)

United States v. Brazier, Case No. 17-2269 (7th Cir. Aug. 12, 2019)

United States v. Jones, Case No. 18-30256 (5th Cir. Aug. 12, 2019)

In re Matthews, Case No. 16-2273 (3rd Cir. Aug. 14, 2019)

– Thomas L. Root

Unwelcome Spotlight Shines on the BOP – Update for August 19, 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.

MEDIA CRANKS UP HEAT ON BOP IN WAKE OF EPSTEIN SUICIDE

abandonprison170501The Justice Dept. last Tuesday reassigned the warden at MCC New York, where Jeffrey Epstein hanged himself nine days ago, and placed on leave two Bureau of Prison staff who had been monitoring Epstein’s unit at the time. The shakeup came as the MCC fell under intense scrutiny, with critics calling the suicide “emblematic of a neglected, understaffed and dysfunctional federal prison system.”

A day earlier, Attorney General William P. Barr decried “serious irregularities” at the MCC and criticized the BOP’s “failure” to keep Epstein secure.

USA Today said that the suicide “has cast a jarring spotlight on the nation’s largest prison system plagued for years by dangerous staffing shortages, violence and widespread sexual harassment of female officers.”

Noting the BOP’s efforts to fill up to 5,000 vacancies and its lack of a director since Mark Inch resigned a year ago, Eric Young, national president of the federal prison workers union, said, “We’ve got a serious problem.”

The Houston Chronicle reported that Epstein’s suicide is “the latest black eye for the U.S. Bureau of Prisons, the jail’s parent agency that already was under fire for the October death of Boston gangster James “Whitey” Bulger… Taken together, the deaths underscore ‘serious issues surrounding a lack of leadership’ within the BOP, said Cameron Lindsay, a former warden who ran three federal lockups, including the Metropolitan Detention Center in Brooklyn.”

shu160201Other outlets reported that “major irregularities” in the MCC Special Housing Unit contributed to Epstein not being monitored properly. Those stories were followed by reports that the irregularities were primarily due to COs “working extreme overtime shifts to make up for staffing shortages the morning of his apparent suicide,” according to Politico. A BOP source was quoted as saying that the SHU was staffed with one guard working a fifth straight day of overtime and another who was working mandatory overtime.

The New York Times reported that one of the SHU guards that day was not a full-fledged correctional officer, and neither guard had checked on Epstein for several hours before he was discovered.

By the middle of last week, the focus was on BOP staffing levels. The Marshall Project reported that the Epstein suicide “followed steep and persistent staffing shortages that exceeded the rate of decline in the federal prison population… The federal prison system lost 12% of its workforce from the start of the Trump administration through the end of 2018. Administration officials have argued that the staff drop, which resulted partly from a hiring freeze, was mitigated by a reduction in the number of federal prisoners. But… over a two-year period between Sept. 2016 and Sept. 2018, the bureau lost 10% of its employees. In that same period, the total number of federal prisoners dropped by just over 5%.”

CNN reported that the BOP continues to rely on “augmentation,” using non-correctional officers in CO positions to cover staff shortages, noting that Congress has repeatedly asked the BOP to give up augmentation, even while denying it enough budget to hire more COs. The Hill complained that “it is the failure of leadership inside the permanent Justice Department bureaucracy — one that has served multiple presidents, Republican and Democrat — to fully address the resources and cultural deficiencies” that has resulted in the staffing crisis at BOP.

Schadenfreude aside, it is rare that media attention and Congressional hand-wringing results in changes in the BOP that positively affects staff or inmates.

Washington Post, Justice Dept. reassigns warden of jail where Epstein died, puts two staffers on leave (Aug. 13)

USA Today, Jeffrey Epstein suicide casts spotlight on federal prison system riven by staff shortages, violence, sexual harassment (Aug. 12)

Houston Chronicle, Federal New York lockup draws new scrutiny in Epstein death (Aug. 12)

Politico, Jeffrey Epstein’s guards were working extreme OT shifts (Aug. 12)

The Marshall Project, Epstein’s Death Highlights A Staffing Crisis in Federal Prisons (Aug. 14)

The New York Times, In Short-Staffed Jail, Epstein Was Left Alone for Hours; Guard Was Substitute (Aug. 12)

The Hill, Deadly déjà vu: Epstein’s prison death was decades in the making (Aug. 13)

– Thomas L. Root

I’m-a Gonna Mail Myself to You – Update for August 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.

IT’S ALL ON YOU, MAN

mail190816When Mario Dunham was convicted, his lawyer withdrew without filing a notice of appeal. Mario’s conviction became final on November 16, 2015. His 28 USC § 2255 motion, complaining that his lawyer failed to file a notice of appeal, appeared at the courthouse one year and two weeks later.

Of course, the deadline for a § 2255 motion under 28 USC 2255(f)(1) would have been November 16, 2016. Mario’s mailing envelope had a Nov. 28 postmark. Nevertheless, the district court gave Mario a chance to provide he had mailed it on time.

The Bureau of Prisons offers a “legal mail” system (which it calls “special mail“) to inmates for communications with lawyers, courts and legislators. The legal mail is not inspected by the BOP staff, and the date of delivery to the prison officials for mailing is noted, and becomes a filing date honored by the court system.

Mario did not use legal mail for his § 2255 motion, I suspect because legal mail would have revealed he mailed it well after the court deadline. Obviously, he could not gin up evidence that he had mailed it when he said he had, having nothing more that his naked assertion that he had put it in the housing unit mailbox by November 16th, and somehow the prison did not get that load of mail out for two weeks or so. The district court did not buy it, and last week, the 5th Circuit rejected Mario’s argument as well.

backintime190816The 5th held that the burden to prove a § 2255 motion was mailed on time always falls on the petitioner. The prisoner’s own statement that he mailed it on time is not good enough. This is why documents sent to the court should always go legal mail. Beyond that, a careful petitioner will always keep one eye on how he or she would prove timely mailing if something goes missing. Being sure the Corrections Officer handling legal mail logs the mailing and asking him or her to note what is being sent (such as “2255 motion” or “objections to report”) or something that would help prove a timely filing of whatever is being sent, is always a good idea. The BOP is supposed to log such things, but being sure it’s done right is only prudent.

giphyIn Mario’s case, the court had not just fallen off the turnip truck. It compared the § 2255 filing with all of the other filings Mario had made in the proceeding, and noted that all of them were postmarked within a day or two of the date Mario had written on the filings. The only exception was the § 2255 motion, postmarked 14 days after the date Mario had written in on the signature page.

The Court’s implication that Mario had backdated the petition is pretty clear.

United States v. Duran, Case No. 17-30428, 2019 U.S. App. LEXIS 23717, 2019 WL 3729586 (5th Cir., Aug. 8, 2019)

– Thomas L. Root