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One Lost, One Still in Certiorari Limbo – Update for March 5, 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.

LAST WEEK’S SCORE IS 0-1-1 ON SCOTUS CERTIORARI

Two Supreme Court petitions for certiorari (which is how parties get the Court to take their cases for review) came up last week, leaving our score 0-1-1.

jenga190305The petition in United States v. Rivera–Ruperto, important to people with stacked 924(c) sentences, who were left behind by the First Step Act’s nonretroactivity, asked whether 160 years for a defendant who carried a gun to multiple government-staged drug buys could get 130 years’ worth of stacked 924(c) sentences complied with the 8th Amendment ban on cruel and unusual punishments. Despite a lot of interest in the criminal justice community that this argument be addressed (and the 1st Circuit’s remarkable en banc opinion asking SCOTUS to take up the issue), the Supremes denied certiorari last week without further comment.

Meanwhile, the government’s request for certiorari in United States v. Wheeler was relisted a second time, and yesterday appeared to be relisted yet again. As noted last week, Wheeler asks whether a prisoner whose 2255 motion challenging a statutory minimum was denied based on current circuit precedent may later seek habeas relief in a 2241 petition (allowed by the 2255(e) “escape clause”) on the ground that the circuit’s interpretation of the statutory minimum has changed. A relist does not mean that cert will be granted, but it increases the odds.

Beneath the surface in Wheeler there is percolating a mootness battle. The 4th Circuit refused to stay its decision in the case, instead issuing the mandate – which is the green light for the district court to apply its holding – nine months ago. Last week, the district court got around to resentencing defendant Gerald Wheeler, and reduced his sentence to time served. Gerry walked out the door a free man, having had whopping eight months cut off his 120-month sentence.

mootness190305In an inversion of what usually goes on at the Supreme Court – a defendant begs to be heard while the Dept. of Justice Solicitor General’s office argues the case is unworthy of review – the government filed a letter with SCOTUS last week arguing that “the grant of habeas relief to shorten [Gerald’s] term of imprisonment means that this case ‘continue[s] to present a live controversy regarding the permissibility of such relief.’”  Gerry’s lawyers, showing their irritation at the government’s conduct in the case, shot back that the Supremes should take a hard pass on this one:

The district court entered its written judgment on March 1, 2019, and Mr. Wheeler has filed a notice of appeal to challenge one aspect of the district court’s resentencing decision. During the course of those appeal proceedings, the government will have the opportunity to ask the en banc Fourth Circuit to reverse the panel decision… Given that the government recently—in the middle of this case—changed a two- decades-old position regarding its interpretation of § 2241, the opportunity for additional percolation in the courts of appeals would be beneficial for this Court’s ultimate review.

Now one might wonder why Gerry, now a free man (to the extent that anyone on supervised release is truly free) would have found anything to appeal in a “time served” sentence. No one involved in the case has Skyped me to explain this, but I suspect his lawyers, whose primary duty to their client was to get him out of prison, filed the notice of appeal in order to be able to do exactly what they have done: to argue that because the case is headed back to the 4th Circuit, the Supreme Court does not need to take it up at this time.

The Supreme Court neither granted nor denied certiorari on the case yesterday, suggesting yet another realist. The Court undoubtedly wanted to digest the dueling letters it received at the end of last week.

lovelawyerB170811My selfish view is that I would like the Supreme Court to settle the issue on the 2255(e) “escape clause,” going with the ten circuits that recognize the legitimate use of a 28 USC 2241 petition in cases like Gerald’s. But Gerald’s lawyers – the Federal Public Defender in the Western District of North Carolina – are doing some first-rate lawyering for their client. As a result, he awoke last Saturday in his own bed for the first time in almost a decade.

That’s what good criminal defense lawyering is all about.

Sentencing Law and Policy, After swift cert denial in Rivera-Ruperto, should I just give up hoping for an improved Eighth Amendment to check extreme non-capital sentences? (Feb. 25)

United States v. Wheeler, Case No. 18-420 (Sup.Ct.) petition for certiorari pending)

– Thomas L. Root

Could SCOTUS Decision in Haymond “Bring Down Supervised Release?” – Update for March 4, 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.

AN UNSURPRISING WIN AND A PROMISING ORAL ARGUMENT

The Supreme Court last week ruled that even if a defendant’s plea agreement includes an appeal waiver, defense counsel renders ineffective assistance of counsel by not filing a notice of appeal  if the defendant asks for one.

The decision – Garza v. Idaho – is not such a big deal. Every circuit that has considered the question, except for the 3rd and 7th, already follows the rule.

appeal181107Since the 2000 Roe v. Flores-Ortega decision, if a defendant asks defense counsel to file a notice of appeal, and the lawyer does not, it is considered ineffective assistance of counsel (which violates the 6th Amendment) regardless of whether the appeal had any chance of winning. Some courts, however, have wondered whether the Roe rule should apply where a defendant’s plea agreement waiving appeal rights. A few places, including Idaho, have held that in that case, failure to file a notice of appeal would be ineffective assistance of counsel only if the defendant could show a reasonable probability that he or she would have won on appeal.

easyappeal190304Last week, the Supreme Court disagreed. It noted that even a defendant waiving appeal retains the right to appeal limited issues (such as claiming defense counsel was ineffective for ever getting the defendant to sign the plea agreement to begin with). The Supremes said that filing the one-page notice of appeal is very easy (the notice does not even have to list the issues being appealed), and most defendants have a pretty ill-formed idea of what the issues should be before the transcripts are prepared. For those reasons, SCOTUS said, the Roe rule should apply for plea waivers: if your lawyer fails to file a notice of appeal after you ask him or her to, it is ineffective assistance of counsel, even where you waived your appeal rights.

Perhaps more significant, the Supremes heard oral argument last week that could bring down supervised release. The case question the constitutionality of 18 USC 3583(k), which requires convicted sex offenders to return to prison for at least five years if a judge finds they have committed certain crimes. The defendant in the case, Andre Haymond, served time for child porn, and was returned to prison after he violated supervised release. He argued that the law violates his right to have his sentence determined by a jury, rather than a judge, beyond a reasonable doubt.

Eight justices seemed likely to agree with him, even if it was not yet clear how they will remedy the constitutional violation. Several questioned the government’s view that a jury was not required to find the facts leading to a supervised release violation and more prison time. Much of the oral argument focused less on whether the law was unconstitutional and more on how to fix it.

supervisedleash181107Haymond is consequential to all of supervised release. As it is, while on supervised release, a defendant is subject to violation for a variety of technical, non-criminal conduct, and may be returned to prison if the court finds by a mere preponderance of the evidence that the defendant committed the violation. Haymond could upend this, extending the constitutional guarantees of Apprendi v. New Jersey and Blakely v. Washington (that people can lose liberty only upon admissions of guilt or findings of a jury beyond a reasonable doubt) to supervised release violations as well. In fact, Justice Samuel Alito – the only Justice in the government’s corner – complained during argument that a ruling for Haymond could “bring down the entire supervised release system.”

Statistics say one out of three people released on supervised release will be violated, making this case huge.

Ohio State University law professor Doug Berman said in his Sentencing Law and Policy blog that “there may now be eight Justices prepared to extend Apprendi/Blakely rights to supervised release revocation. Now we what to see just how big the ultimate opinion will be (and how loudly Justice Alito will complain about more procedural rights for criminal defendants).”

Garza v. Idaho, Case No. 17-1026 (Feb. 26, 2019)

United States v. Haymond, Case No. 17-1672 (argued Feb. 26)

Sentencing Law and Policy, Haymond seemingly to become major Apprendi progeny altering federal supervised release revocations (Feb. 26)

– Thomas L. Root

A Star is Born to Help the Dying – Update for February 28, 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.

IS COMPASSIONATE RELEASE THE SLEEPER STAR OF FIRST STEP?

compassion160208Ohio State law professor Doug Berman, whom I cite often, wrote in his Sentencing Law and Policy blog last week that he “considers the statutory changes to the so-called compassionate release provisions in federal law to be the ‘sleeper provisions’ of the First Step Act,” chiefly because for the first time, inmates may ask their sentencing courts directly for compassionate release (18 USC 3582(c)(1)) if the Federal Bureau of Prisons does not act within 30 days, or if – after going through the BOP’s administrative remedy process – the inmate is denied.

Since the BOP usually takes four months plus to grant compassionate release in the rare cases the agency did so, this provision is important. Maybe no more will die like Steve Cheatham did. Sick with cancer, he filed for compassionate release on Dec. 13. The BOP denied receiving it until Jan. 11. Desperate to get him home, Steve’s lawyer filed with Steve’s sentencing judge on Jan. 30. The court granted compassionate release the next day. Before Steve could be told the news that afternoon, he died at FMC Butner.

Prof. Berman hopes that the kind of failure seen in Steve’s case will end, and that compassionate release will become a tool to reduce mass incarceration. He wrote that

more than 5000 federal prisoners are in ‘care level’ 3 or 4 facilities… As the [Dept. of Justice Inspector General] explained to the USSC in his testimony three years ago, beyond the humanitarian value of allowing ill persons to receive treatment outside of prison facilities, releasing ill prisoners helps ‘reduce overcrowding in the federal prison system” and can “result in cost savings for the BOP” and in turn the federal taxpayer.

Even if we imagine only 10% of elderly and ill federal inmates are suitable candidates for compassionate release, we still could be looking at a means for releasing many thousands of federal prisoners in relatively short order.

Sentencing Law and Policy, Compassionate release after FIRST STEP: Should many thousands of ill and elderly federal inmates now be seeking reduced imprisonment in court? (Feb. 18)

New York Times, A New Law Made Him a ‘Free Man on Paper,’ but He Died Behind Bars (Feb. 15)

– Thomas L. Root

Not Technically Innocent Enough… – Update for February 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.

WHO YOU GONNA CALL?

violent160620Gurmeet Singh Dhinsa was convicted of racketeering and murdering a witness to keep him from talking to federal agents. Years later, he filed a 28 USC 2241 habeas petition under the “savings clause” in 28 USC 2255(e), arguing that under the Supreme Court’s 2011 Fowler v. United States decision the government had to show that the murder victim was “reasonably likely” to have communicated with a federal official had he not been murdered. Because it could not, Gurmeet said, he was innocent of the offense.

Last week, the 2nd Circuit dismissed Gurmeet’s petition for lack of jurisdiction. Under the “savings clause,” a court only has jurisdiction to hear the 2241 motion if “the remedy by motion is inadequate or ineffective to test the legality of his detention.” The showing required includes being able to prove a change in the law makes the prisoner actually innocent of the offense.

innocent161024The Circuit held Gurmeet had failed to show his innocence under Fowler, because his “extensive racketeering enterprise represents a type of criminal activity that is commonly investigated and prosecuted by federal officials.” Thus, the Court ruled, a juror could have reasonably found that Gurmeet’s two victims were “reasonably likely” to have called federal officials about federal crimes.

Because Gurmeet could not show actual innocence, the trial court correctly held he had failed to meet the requirements of the 2255(e) savings clause. The test is jurisdictional, meaning that the courts had no power to hear Gurmeet’s petition.

Dhinsa v. Krueger, 2019 U.S. App. LEXIS 4865 (2nd Cir. Feb. 20, 2019)

– Thomas L. Root

Timbs a Yawner at Supreme Court – Update for February 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.

‘DOG BITES MAN’ AT SUPREME COURT

Dogbite160314In journalism, a “dog bites man” story is one that is completely expected and ho-hum. The Supreme Court’s handed down a decision like that last week in Timbs v. Indiana, holding that the 8th Amendment’s ban on excessive fines applied to the states through the 14th Amendment.

SCOTUS did not find that Indiana’s forfeiture of Mr. Timbs’ $42,000 Land Rover for the sale of a couple of hundred dollars’ worth of heroin was excessive. Instead, the case was remanded for the trial court to figure that out. The Feds already operate under the 8th Amendment, which has had limited effect on federal forfeitures.

Ohio State University law professor Doug Berman noted in his Sentencing Law and Policy blog that during the Timbs oral argument, some Justices seemed to struggle with the notion that forfeiture of an SUV for selling drugs may violate the 8th Amendment, but forfeiture of a lifetime of liberty for possessing drugs does not.

Today, SCOTUS will hear oral argument in two significant supervised release cases, In Mont v. United States, a 6th Circuit case asking whether the supervised release term for one offense is tolled under 18 USC 3624(e) while a releasee is locked up in pretrial confinement for a new criminal case. In United States v. Haymond, SCOTUS will review a 10th Circuit decision that 18 USC 3583(k), which requires additional prison time for sex offenders who violate supervised release, is unconstitutional, because it imposes additional punishment based on new conduct for which the offenders have not been convicted beyond a reasonable doubt.

habeas_corpusUnited States v. Davis will decide whether 18 USC 924(c)(3)(B) is unconstitutional. SCOTUS has set April 17, 2019, for oral argument. Alas, the government’s request for certiorari in United States v. Wheeler, which was relisted for conference last Friday, was again relisted for March 1st. Wheeler asks whether a prisoner whose 28 USC 2255 motion challenging a statutory minimum was denied based on current circuit precedent may later seek habeas relief in a 28 USC 2241 petition (allowed by the 2255(e) “escape clause”) on the ground that the circuit’s interpretation of the statutory minimum has changed.

Sentencing Law and Policy, Why I am certainly hoping, but not really expecting, Timbs to end up being a big deal (Feb. 22)

Timbs v Indiana, Case No. 17-1091, 2019 U.S. LEXIS 1350 (Sup.Ct. Feb. 20, 2019)

Mont v. United States, Case No. 17-8995 (Supreme Court oral argument Feb. 26, 2019)

United States v. Haymond, Case No. 17-1672 (Supreme Court oral argument Feb. 26, 2019)

United States v. Davis, Case No. 18-431 (Supreme Court oral argument Apr. 17, 2019)

United States v. Wheeler, Case No. 18-420 (relisted for Supreme Court conference on March 1, 2019)

– Thomas L. Root

No One Much Cares About the ‘Seven Days’ Debacle – Update for February 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.

BAD NEWS, GOOD NEWS

fishbicycle190225The bad news: We have already reported in detail on the error in the First Step Act that accidentally tied the effective date for the additional seven-days-a-year good-conduct time for federal inmates to the effectiveness of the earned-time credits, a pairing that makes as much sense at relating a fish to a bicycle.

Although there has been a hue and cry from all of the usual advocate-suspects, no one has owned up to the blunder, let alone taken steps to fix it.

I’m not often right, but I predicted a month ago that Congress would be uninterested in doing anything to correct the sloppy drafting. This is because Congress, as an institution, addresses a problem once, happily concludes that the problem is all fixed, and then moves on to the next problem. Criminal justice and prison reform got their moment in the sun with passage of First Step. It will be a long time before Congress comes back to the issue. That is all the more true here, because the drafting gaffe will remedy itself in July, when the seven-day credits take effect.  Some prisoners who should be home now will surely suffer, but that’s hardly an effect that will fire the imagination of Congress, especially the Senate leadership. 

And more: Law professor Nora V. Demleitner, editor of the Federal Sentencing Reporter, complained last week in The Hill that new Attorney General William Barr is no reformer. “Congress should have demanded an attorney general committed to decreasing the federal prison population, improving re-entry, and limiting prison sentences for minor offenders… an attorney general committed to the spirit of the [First Step] Act. Instead it settled for someone who will interpret it as narrowly as possible and implement it grudgingly.”

retro160110The Good News: Speaking last week at a crime symposium, Koch Industries general counsel Mark Holden identified three priorities for the next federal prison reform legislation. Holden, who was point man for Koch Industries’ backing of First Step, said that congress first should apply First Step’s sentencing changes retroactively – the 18 USC 924(c) destacking provision, the reductions in mandatory minimums under the drug trafficking statute, and “safety valve” qualifications.

In addition, Holden called on Congress to codify the Supreme Court’s Brady v. Maryland ruling requiring prosecutors share all of the information that they have about the alleged crime with the accused at the outset the case, and to adopt a clearer and more stringent mens rea rule. Also, he urged the Trump administration to reform the executive clemency process and then to apply it to “create second chances for people who wouldn’t necessarily qualify for relief under the First Step Act.”

Meanwhile, a push is on to again make Pell Grants available for prisoners. Complaints that hard-work Americans were paying for criminals to go to college cauaed Congress to prohibit issuing prisoners Pell Grants, which provide students with financial need aid for college. Without Pells, the number of prison college programs plummeted from 772 to just eight by 1997.

In 2015, the US Dept of Education started a pilot program, allowing some colleges to use Pells to increase access to college courses in prison.

education180509Last week, a conservative magazine called on Congress to expand Pell grants to prisoners nationwide. “Such programming brings gains for both prisoners and public safety,” the American Conservative said, “rebuilds families, is fiscally prudent, and acknowledges the individual dignity of those in prison.”

It may happen. There has been bipartisan support for legislation to reinstate Pells for prisoners. Sen. Lamar Alexander (R-Tennessee), chairman of the Senate Education and Labor Committee, has hinted the change may be part of reauthorizing the Higher Education Act. “Most prisoners, sooner or later, are released from prison, and no one is helped when they do not have the skills to find a job,” Alexander said last year. “Making Pell Grants available to them in the right circumstances is a good idea.”

The Hill, Barr confirmation reveals shallowness of congressional commitment to justice reform (Feb. 19)

The Crime Report, The First Step Act: It’s Only a ‘First Step’ (Feb. 18)

American Conservative, Sending Our Prisoners to College (Feb. 21)

The Intercept, How The Federal Government Undermines Prison Education (Feb. 18)

– Thomas L. Root

Court Cannot Hear Government Dog Whistle – Update for February 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.

SUMMONING THE SPIRITS

In law school, a cynical but wise professor told me that whenever someone argued you were violating the “spirit of the law,” that necessarily meant that you were not violating the letter of the law.

Ed Raifsnider learned that the hard way last week. Like many people with plea agreements, he reasonably expected the government to keep its word by recommending an in-Guidelines sentence. The AUSA literally did that, but Ed said, “the Government effectively recommended an alternative sentence by strongly suggesting the district court should not follow its formal recommendation.”

dogwhistle190220That’s hardly unusual. The government does that all the time, telling the court things like, “We are obligated by the plea agreement to recommend an in-guidelines sentence,” which is a dog whistle if ever there was one, communicating to the sentencing court that the government will provide the picket signs for an angry mob if the judge does not hammer the defendant, despite anything the plea agreement may say to the contrary.

But the Court was not very sympathetic to Ed. It found no breach, holding that “we do not suggest the Government can never breach a plea agreement by implicitly recommending a different sentence than the one it is bound to recommend by the agreement, but we do not believe this line has been crossed here.”

If there’s a line somewhere, we’re still waiting to see it.

United States v. Raifsnider, 2019 U.S. App. LEXIS 4443 (8th Cir. Feb. 14, 2019)

– Thomas L. Root

A Toast to Ripeness: Supervised Release Follies – Update for February 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.

FUN AND GAMES WITH SUPERVISED RELEASE

A pair of decisions last week serve as a reminder to federal inmates that if they think prison is frustrating, just wait…

supervisedrelease180713More than one inmate lived in one federal district, but caught his or her case in another. That happened to Randy Pittman. When that happens, the BOP will release the inmate to the federal district in which the crime was committed, not the one in which the inmate lives, unless the inmate convinces the BOP to ask for a transfer of supervision.

With Randy’s prison term set to expire, he asked the district court to grant relocation of his supervised release under 18 USC 3605. There’s nothing unusual about such a request, and Randy justifiably saw no benefit to doing halfway house in Texas when he intended to live with his family in Georgia.

The district court denied his motion as premature because Randy was not yet on supervised release. Randy appealed, but last week the 5th Circuit threw the case out, holding it lacked jurisdiction.

The Circuit held that the district court’s denial of supervised release relocation as being premature was not a final order under 28 USC 1291. Randy argued that the harm he would suffer was real, because forcing him to enter a halfway house in the Texas would undermine his ability “to reintegrate into society.” After all, the halfway house was supposed to let him attain a stable residence, gainful employment, and to prepare for his reentry into society.”

The Circuit did not care. The district court said Randy’s motion was premature. “The best view is that,” the 5th said, is that “the denial of Pittman’s motion is simply not a final, appealable order.”

Of course, it seems that Randy’s harm was immediate, that being a term of halfway house in a place where getting a job, renting an apartment, opening a bank account and getting a current driver’s license made no sense. And it hardly served society either, telling a soon-to-be-released prisoner that he should engage in entirely futile attempts to reintegrate into a society 700 miles from his family. By the time Randy is on supervised release, the damage – an utterly stupid halfway house placement – would be done. The primary question of ripeness is whether the harm asserted has matured sufficiently to warrant judicial intervention. That should have made the issue here, even if it is a collateral order, reviewable.

nobeer180605For David Bell, who was on supervised release, the problem was that the district court has placed special conditions on him that he ““not consume or possess alcoholic beverages or beer, including 3.2% beer, at any time” and that he be at his “place of residence between the hours of 10:00 p.m. and 6:00 a.m., 7 days per week,” unless working.

Dave argued that these had nothing to do with his conviction for marijuana trafficking and money laundering, but the district court said

I’ve had too many defendants that go out and get to drinking, then they get intoxicated and then they go out and violate their supervised release.” As for the curfew, the court said, “And the same reason I put that curfew on there… [T]hey violate their probation, they’re out usually past midnight. They’re out on the prowl, and they get into trouble. They get drinking, then they’re out prowling the streets. Now, there’s no indication you do that. But I’m going to leave it on there because I’m not even going to give you the chance to be tempted by it.

Dave appealed, and last week, the 8th Circuit threw out the conditions. Supervised release conditions must 1 be reasonably related to the sentencing factors set forth in 18 USC 3553(a), involve no greater deprivation of liberty than is reasonably necessary for the purposes set forth in 3553(a); and be consistent with policy statements issued by the Sentencing Commission. What’s more, the sentencing court “must make an individualized inquiry into the facts and circumstances underlying a case and make sufficient findings on the record so as to ensure that the special condition satisfies the statutory requirements.”

The 8th Circuit noted it had previously vacated alcohol bans “where the defendant’s history or crime of conviction” did not support them. Drug convictions alone do not justify such restrictions, and “even repeated marijuana use and light alcohol consumption are not necessarily sufficient to establish dependency.”

supervisedleash181107Here, the Court ruled, the sentencing judge abused his discretion in imposing the condition prohibiting Dave from any alcohol consumption. “Rather than conducting an individualized inquiry into the circumstances of Bell’s alcohol use and drug dependence,” the appellate panel held, “the district court cited its general experience with prior offenders. In fact, the court admitted that there was no indication that Dave drank or prowled the streets.”

As well, the sentencing court abused its discretion in imposing a curfew. Rather than making individualized findings, the court referenced its general experience with offenders and admitted that there was “no indication” this experience pertained to Dave.

The 8th did not “see a reasonable probability that the court would have imposed the condition after an individualized assessment… It is unclear how the curfew is reasonably related to the protection of the public or Bell’s criminal history and rehabilitative and correctional needs given that the conspiracy involved distributing marijuana through the mail and laundering the proceeds.”

United States v. Pittman, 2019 U.S. App. LEXIS 4490 (5th Cir. Feb. 14, 2019)

United States v. Bell, 2019 U.S. App. LEXIS 4155 (8th Cir. Feb. 12, 2019)

– Thomas L. Root

Unintended Consequences – Does First Step Act Open Up 8th Amendment Argument? – Update for February 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.

DOES FIRST STEP OPEN WINDOW FOR 8TH AMENDMENT CLAIM ON HARSH GUN SENTENCES?

Ohio State University law professor Doug Berman asked this interesting question in a post on his Sentencing Law and Policy blog last week.

Prof. Berman noted that First Step Act Sec. 403, “described as a ‘clarification of Section 924(c),’ eliminates the required “stacking” of 25-year mandatory minimums for multiple 924(c) counts at the same time… Sadly, Congress did not make Section 403 of the First Step Act retroactive, and thus defendants previously subject to these extreme stacked sentences will get no direct relief from the new Act.”

Sentencestack170404In 2010, Wendell Rivera–Ruperto was paid by undercover FBI informants to serve as “armed security” at six fake drug deals, and received a 162-year sentence, of which 130 years were for his six stacked 924(c) convictions. In a 1st Circuit decision last year, Wendell was denied rehearing en banc despite one judge’s complaint that courts “have no choice but to approve mandatory ‘forever’ sentences… so long as they can hypothesize a rational reason for the legislature to have thought that the underlying criminal conduct was [so] serious…” The dissenting judge hoped for Supreme Court review.

SCOTUS has incorporated a proportionality analysis into the cruel and unusual punishment analysis required in capital cases. In Harmelin v. Michigan, the defendant asked the Court to extend the reach of that analysis to noncapital cases such as his life sentence for 650 grams of cocaine. Five Justices agreed that Harmelin’s sentence was not unconstitutionally cruel and unusual, but six Justices agreed that the Cruel and Unusual Punishment Clause bore some kind of proportionality analysis. Among those six, three supported a proportionality principle that deferred to legislative judgments, while three others supported a more searching proportionality analysis that would have struck down the mandatory life sentence.

cruel190218This Friday, the Justices will consider whether to review the case. “Notably, and not surprisingly,” Prof. Berman wrote, “the feds now say in opposition to cert that passage of the First Step Act reduces the important of the case: ‘future defendants in petitioner’s position will not be subject to mandatory consecutive sentences of at least 25 years [and the] question presented by his case therefore has diminishing significance’.” But “the fact that the 8th Amendment is supposed to take guidance from an ‘evolving standards of decency’ and be responsive to a ‘national consensus’ against a sentence, I strongly believe the enactment of the First Step Act primarily operates to make Wendell Rivera–Ruperto’s constitutional claim even more substantively potent.”

Justice Kennedy’s retirement last summer creates a window of opportunity for advocates to urge overturning (or cutting back) Harmelin’s 8th Amendment precedent. “Thus,” Berman said, “I am rooting super hard for the Justices to grant cert in Rivera–Ruperto.” Grant of cert in this case, which Berman calls “potentially the biggest non-capital Eighth Amendment case in a generation,” might open other stacking cases to 8th Amendment review.

Sentencing Law and Policy, Doesn’t the FIRST STEP Act add juice to Eighth Amendment challenge to extreme stacked 924(c) sentence in Rivera-Ruperto? (Feb. 10)

Rivera-Ruperto v. United States, Case No. 18-5384 (Supreme Ct.)

– Thomas L. Root

Justice Must be Timely, Or Not At All – Update for February 14, 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.

CORAM NOBIS – HE WHO HESITATES…

Oliver Wendell Holmes famously lectured a new lawyer from the bench, after the tyro attorney started arguing about justice, “This is court of law, young man, not a court of justice.”

lawnotjustice190213Well, it’s an imperfect world, but over the centuries, the common-law system developed a body of law authorizing writs – called “extraordinary writs” because they were, indeed, out of the ordinary – each tailored to address some injustice (sorry, Ollie) that the strictures of the law otherwise overlooked. The most famous is the writ of habeas corpus, an order from the court to a jailer to produce the prisoner before it and show by what authority the poor fellow was being detained. Injunctions, orders that a certain activity be stopped, likewise are extraordinary writs, as are their lesser-known prerogative-writ cousins, writs of prohibition, writs of quo warranto, and writs of mandamus. Then, there are the real unknowns, such as the writ of audita querala or writ of error coram nobis.

Many courts have limited the use of extraordinary writs, but not the Feds: the All Writs Act, passed as part of the Judiciary Act of 1789, authorizes federal courts to “issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.”

secondbiteapple190213Federal prisoners, who as a group sat in the back of the room during high school government class, discover the All Writs Act like travelers in the desert stumbling on an oasis of cool water and verdant fruit trees. With post-conviction petitions seemingly limited to a single 28 USC 2255 motion except in the most restricted of circumstances, inmates seeking a second or late-filed bite of the apple often consider a petition for a writ of error coram nobis to be a novel end run around the ban on multiple 2255s may want to look at what happened to Reuben Delhorno.

This is largely because newbies in the law library have forgotten or never knew what my wife calls the “Greater Minds Than Mine” rule. Any novel dodge or loophole you may discover in the law has already been found, beaten like a rented mule, and usually plugged by one court of aother. Greater minds than yours (or mine) have stumbled on your discovery a long time before you (or I) did.

rentedmule190213Reuben filed a petition for writ of error coram nobis, seeking to get out of a plea agreement for a conviction on which he had already served his sentence, in order to avoid deportation.

Coram nobis is a common-law writ available to correct errors of fact and law in criminal cases, but only when the movant is no longer in custody, and (1) the error is of the most fundamental character so as to render the criminal conviction invalid; (2) there are ‘sound reasons’ for the defendant’s ‘failure to seek earlier relief’; and (3) the defendant continues to suffer from his conviction.

Generally, a petition for writ of error coram nobis cannot be used for a second bite of the 2255 apple. As one court put it, given the broad purpose of the Antiterrorism and Effective Death Penalty Act, it would be “astounding if the ‘second or successive’ restrictions on 2255 motions could be rendered wholly ineffective by the simple ruse of labeling future § 2255 motions as petitions for writs of coram nobis.”

But Reuben did not do that. Instead, he sat on his hands while locked up, letting the deadline to file a 2255 pass. Only after he finished his term and found that ICE was waiting to hustle him back to Mexico did he wake up to the errors in his criminal proceeding.

At his change of plea hearing, Reuben said that he was born in Mexico but no one mentioned the immigration consequences of a guilty plea, even though the hearing took place more than a year after the Supreme Court held in Padilla v. Kentucky that a defense lawyer provided ineffective assistance by failing to advise the client that a guilty plea would result in automatic deportation.

nothappen181016Reuben complained his attorney’s representation was unreasonable, because he never discussed with Reuben the immigration consequences of conviction. The Court was “troubled that apparently neither his counsel, the prosecutor, nor the court raised the issue of the mandatory immigration consequences with him.” However, it found that Reuben lacked evidence that he would not have pled guilty even if he had been told about deportation.

But Reuben’s biggest problem was that he could not explain why he waited five years to raise the issue, instead of on appeal or in a 2255 motion. “A person seeking a writ of coram nobis,” the Court ruled, “must offer sound reasons for his failure to seek relief earlier.” Reuben could not, and thus had his coram nobis dismissed.

United States v. Delhorno, 2019 U.S. App. LEXIS 3977 (7th Cir. Feb. 8, 2019)

– Thomas L. Root