All posts by lisa-legalinfo

Employers Commit to Hire Felons After First Step, But Much Remains to be Done – Update for February 4, 2019

Leave a comment

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

HOUSEKEEPING CONCERNS, LOWER EXPECTATIONS, AFTER FIRST STEP

Now that the First Step Act is law, the question becomes what is next at the federal level and what policy innovations can state governments develop to continue the national momentum toward a more efficient and effective justice system.

Rosie190204The next order of business, according to The Hill, is for the Senate to confirm William Barr as Attorney General. Barr would be responsible for selecting a new director for the Bureau of Prisons, as well as for ensuring that the BOP accurately administers the codified risk assessment system for low-level, non-violent offenders who are eligible for release, and provide these inmates with the programs required by the Act. The statutory deadline for adopting the risk-assessment system is five and a half months away.

While the sentencing reforms contained in the First Step Act were secondary to the prison reforms that are to be administered by the Dept of Justice, further sentencing improvements are possible through the U.S. Sentencing Commission. However, the Commission has lacked a quorum since last December. The acting chair, Judge William Pryor of the 11th Circuit, is currently awaiting renomination by the White House and confirmation by the Senate. Until the Commission gains two more commissioners, it will be unable to adopt any Guidelines amendments. The Commission customarily issues amendments every April, which become effective November 1st unless Congress vetoes them ahead of time. Only twice in its 30-year history has the Commission failed to adopt any Guidelines amendments. The most recent time was 2017, when the Commission – as it does now – lacked a quorum.

Meanwhile, conservative billionaire industrialist Charles Koch, who spearheaded business support for First Step, has challenged a broad coalition of business groups is to hire workers with criminal backgrounds in the wake of First Step’s passage.

Koch has enlisted the support of the Society for Human Resource Management, the U.S. Chamber of Commerce, the National Retail Federation, the National Restaurant Association and the American Staffing Association. Together, the groups represent businesses that employ roughly 60% of the American workforce.

First Step made changes in the 2010 Fair Sentencing Act retroactive, allowing an estimated 3,000 people still serving long convictions for crack cocaine to petition for a reduction in their sentences. The provision allowed Matthew Charles, whose case was widely publicized in 2017, to exit prison at the end of 2018. Michael Holley, a federal defender who worked on Charles case, said that Charles was an ideal candidate for sentencing reduction, and his case was ideally positioned to be heard right away.

release160523“It was all primed for the government to look at,” he said. “We’d had all this litigation in the past year… so the judge was fully aware of his case and the prosecutor was fully aware of the case.” The government responded to the Charles petition ahead of the deadline to indicate no opposition the Charles’ request, Holley said, allowing him to get out even more quickly.

For other people, the process will take longer. The Federal Public Defenders Offices nationally have compiled a list of people in their records who might be able to benefit from the law, and attorneys in the office are reviewing the cases for anyone they find to be eligible.

Prosecutors are able to contest a defendant’s eligibility, and can argue that an individual does not deserve a sentence reduction, meaning the process, like 18 USC 3582(c)(2) proceedings, may get protracted.

The Hill, Federal criminal justice reform is now law: What comes next? (Jan. 26)

Law360, For Inmates, Sentencing Reforms Bring Hope And Frustration (Jan. 27)

CNBC, Koch network leads coalition urging businesses to hire former inmates (Jan. 27)

– Thomas L. Root

‘Bang’ Goes the Jury: Lawyer Ineffective For Not Protesting Judicial Arm-twisting – Update for February 1, 2019

Leave a comment

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

BLOWING UP THE JURY

juryduty180226Simon Brewster was on trial in state court for bank robbery. The jury went out, but reported to the judge a few hours later that it was hopelessly deadlocked 9-3 for conviction. The judge gave the jury the Allen charge, known colloquially as the “dynamite charge,” which pressures the jurors to reach a decision by continued deliberation by appealing, essentially, to their desire not to have wasted their and the court’s time.

The jury remained deadlocked, and the judge gave another Allen charge, two additional admonitions that the jurors must continue deliberating, and finally, another long charge that included instructions to keep on deliberating. That lengthy charge emphasized that the jurors had taken an oath to follow the law, which meant they must deliberate more. The judge ended his instructions with the challenge that he had taken his oath seriously and hoped they would do the same.

Shortly thereafter, when told that the one juror who wouldn’t vote to convict was doing crossword puzzles, the judge ordered all the reading materials taken out of the jury room. That tactic turned out to be effective. The jury convicted 20 minutes later.

dynamitejury190201Last week, the 11th Circuit granted Simon’s habeas corpus motion, holding that his lawyer was asleep at the switch for not objecting to the court’s strong-arming the jury. The 11th decided that even if Simon could not prove that judge would have granted a mistrial if he had been asked to do so, Simon was prejudiced. “An assessment of the likelihood of a result more favorable to a defendant must exclude the possibility of arbitrariness, whimsy, caprice, nullification, and the like,” the Circuit said. “It does not matter for prejudice purposes whether the judge at a defendant’s trial would have sustained an objection; what counts is whether the judge would have been required to do so under the applicable law and, if so, whether doing so would have resulted in a reasonable probability of a different result.”

Brewster v. Hetzel, 2019 U.S. App. LEXIS 1931 (11th Cir. Jan. 22)
<><>

– Thomas L. Root

Fair Sentencing Act Retroactivity Benefits Are Broad – Update for January 31, 2019

Leave a comment

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 RETROACTIVITY HELPING CAREER OFFENDERS, TOO

Section 404 of the First Step Act, which authorizes the retroactive application of the 2010 Fair Sentencing Act to people sentenced for crack cocaine offenses before its enactment, is already opening the jailhouse door for some inmates.

... had nothing on crack hysteria.
… had nothing on crack hysteria.

Prior to 2010, crack cocaine was treated by the law with a level of hysteria that made “reefer madness” seem rational. A defendant caught with 10 grams of crack was treated as though he had a kilo of powder cocaine. The Fair Sentencing Act, passed in 2010, reduced this 100:1 ratio of crack to powder to 18:1, a ratio still untethered to reality but the best the bill’s sponsors could negotiate with some Senate holdouts. Still, the Act meant that a defendant had to be caught with 28 grams for a mandatory minimum five years in prison rather than a mere 5 grams.

The other concession the bill’s sponsors had to make in order to ensure the measure’s passage was to agree that the Act would be prospective only, that is, apply only to people sentenced after the measure was enacted. It took eight years for another bill, this one the First Step Act, to do what should have been done in 2010, and that is to treat the guy sentenced on August 1, 2010, the same as the guy sentenced two days later.

The Sentencing Commission has lowered the drug guidelines twice since 2010, and each time made the change retroactive. However, retroactivity did not help guys who had mandatory minimum sentences under 21 USC § 841(b)(1) that would no longer be as onerous if the Act had passed. Likewise, a lot of defendants had had two qualifying prior cases, and were thus considered career offenders under the Guidelines. Career offenders have been deemed by the courts to not have been sentenced under the drug quantity guidelines, and thus the Sentencing Commission’s changes to those guidelines did not benefit them.

But now, a weird effect of the retroactive Fair Sentencing Act is giving hope to guys who sentenced as Guidelines career offenders in crack cases.

Logan's going to the street...
Logan’s going to the street…

Logan Tucker was convicted in 2001 for a crack offense. His original 262-month sentence was driven not by a statutory mandatory minimum, but rather by the Guidelines career-offender provision. Although Logan’s sentence for a crack offense was driven by the Guidelines rather than a statutory mandatory minimum provision, he was not previously eligible for a 2-level reduced sentence due to retroactive Guideline changes because of his career offender status.

But last week, Logan got his break. His sentencing judge ruled that Logan was originally sentenced for a crack offense, and the Fair Sentencing Act lowered the statutory maximum he would have faced. The career offender guidelines, strangely enough, are set under USSG § 4B1.1 by the statutory maximum sentence a defendant faces. Logan’s new lower statutory maximum effectively lowed his career offender guideline.

Logan’s judge imposed a reduced sentence of 188 months, the low end of the new guidelines range, and let him walk out of the courtroom a free man (or as free as supervised release lets one be). Notably, the government in this case conceded that the First Step Act authorized the reduced sentence (although, being prosecutors to the end, the AUSAs urged the court to exercise its discretion not to reduce Logan’s original sentence).

Order, United States v. Logan, Case No. 3:00-cr-00246 (S.D. Iowa, Jan. 23)

– Thomas L. Root

First Step 2.0 Already Being Planned – Update for January 30, 2019

Leave a comment

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

NEXT STEP ACT ALREADY IN WORKS

The bipartisan team that rallied House support for the First Step Act is drafting new legislation to clean up the existing criminal records of nonviolent drug offenders, a centerpiece of their efforts to pass further reforms.

Reps. Hakeem Jeffries (D-New York) and Douglas Collins (R-Georgia) are looking at how to expunge the criminal records of people convicted of drug crimes before minimum sentencing requirements were reduced, to restore their eligibility to apply for certain jobs. Nationally, one out of five jobs requires some kind of license, which excludes just about everyone with a prior felony. “’What is being contemplated is removing the stain that has been put on their life’s journey as a result of a nonviolent drug offense, often occurring at a very adolescent stage of their life,” Jeffries said.

jeffries-collinsA190130The bipartisan legislation could form the basis for what Collins said might be called a ”Next Step Act,” to follow up on the pair’s successful efforts to pass a First Step last year. Both lawmakers hope to continue their established partnership with President Donald Trump’s son in law and senior adviser Jared Kushner, with whom they worked on last year’s criminal justice reforms.

Jeffries said he also hopes to address marijuana as part of any future criminal justice package. “There’s a growing number of conservatives, libertarians and Republicans who are in agreement with Democrats, who believe that we should at least take a hard look at descheduling marijuana,” he said. “[It] shouldn’t actually be that controversial, and it’s consistent with Republican principles of states’ rights and federalism.”

Washington Post, Next step in criminal justice reform could target jobs for ex-convicts, marijuana law (Jan. 17, 2019)

Chicago Tribune, Bipartisan authors of federal sentencing reform have new goal (Jan. 23)

– Thomas L. Root

Err in Haste… Congress Screws Up First Step Implementation – Update for January 29, 2019

Leave a comment

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

TRYING TO FIX FIRST STEP’S 54-DAY FIASCO

finemess190129The expanded good-conduct time credit in the First Step Act – which increased the number of days awarded a federal inmate for good behavior from 47 to 54 days a year, retroactive to the beginning of an inmate’s current sentence – was intended by Congress to be immediately effective, The Congressional Budget Office estimated that the change would immediately release about 4,000 people.

The good-time fix, however, was inexplicably tucked into the earned-time credit section of the Act. A subsection of that provision, which was quite reasonably intended to delay implementation of the earned-time program until the Attorney General adopted a risk-assessment tool to use in order to measure its effectiveness, had the completely unintended effect of delaying award of the additional good-time credit as well. Thus, increased good-time will not be until July 19.

The Washington Examiner reported last Friday that “three sources who work closely with lawmakers and administration officials say it’s their understanding that the White House is looking for an administrative fix.”

White House Counsel Pat Cipollone reportedly met with advocates in mid-January to discuss the issue. “I think he really understood the intent,” said a person with direct knowledge of the meeting. “I think they understood this was a key provision… This was a key part of legislative negotiations.”

For people serving decades, seven additional days means release months early. The increased “good time” expansion and the extension of the Fair Sentencing Act were intended to be retroactive, unlike everything else in the bill.

Mybad190129It quickly became clear, however, that an immediate award of the extra seven days per year was not happening. “I think it was just an oversight,” said Kevin Ring, president of FAMM. “People were focused on making sure the good time got increased and that it was retroactive. It ended up getting put in the section with ‘earned time.’”

A few fixes are being discussed. The easiest would be for the White House to order the Justice Department to apply the 54 days of “good time” credit immediately. Other fixes would require legislation — either a unanimous consent motion or a spending bill provision — but legislative gridlock amid a partial government shutdown makes neither likely.

“I don’t think it’s something that gets cleared up quickly,” said Jessica Sloan of #cut50, one of the people at the White House meeting. “I’m hopeful the White House will issue some sort of directive to the DOJ, which will issue a directive to BOP, but there are a lot of administrative steps there.”

Ohio State University law professor Douglas Berman said last weekend in his Sentencing Law and Policy blog that he “had very little “faith” in anyone inside the Beltway fixing things these days, but it is encouraging that two very effective advocates had the opportunity to address the White House Counsel about potential fixes.”

Washington Examiner, Drafting error stalls inmate release under Trump plan (Jan. 25)

– Thomas L. Root

Simms Raises the Ante on 924(c) Crimes of Violence – Update for January 28, 2019

Leave a comment

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

4TH CIRCUIT SIMMS DECISION TEES UP 924(c) DEBATE FOR SUPREME COURT

The vigorous debate since the Supreme Court decided Sessions v. Dimaya last year at first seemed to surround whether the residual clause of 18 USC 924(c) – which defines “crime of violence” to include any offense that “by its nature, involves a substantial risk that physical force against the person or property of another” – was unconstitutionally vague. That is what the Supreme Court said about the same language in the Armed Career Criminal Act (in Johnson v. United States) and in Dimaya last spring referring to 18 USC 16(b).

violence181008But in the last few months, the argument has morphed into some more basic: when judging whether the offense underlying an 18 USC 924(c) charge is violent, should a court use the categorical approach (which asks whether the offense in its ordinary form is violent, not what the defendant did in the particular case under review)? Or should the court instead look only at how the defendant in the case under review committed the offense?

Three circuits have embraced the conduct-based approach, the 1st in United States v. Douglas, the 2nd in United States v. Barrett, and the 11th in Ovalles v. United States. Three others have backed the categorical approach, the 5th in United States v. Davis, the 10th in United States v. Salas, and the D.C. Circuit in United States v. Eshetu. Two weeks ago, the Supreme Court granted the government’s petition to review the 5th Circuit’s Davis decision.

The Circuit split deepened last Thursday with the 4th Circuit’s long-awaited decision in United States v. Simms. In a contentious 100-page decision, the en banc Circuit decided 8-7 that whether an underlying offense supporting a 924(c) conviction is a crime of violence, a trial court must use the categorical approach the Supreme Court adopted and used in Leocal v. Ashcroft. What’s more, using the categorical approach, the 4th said, it is clear that a conspiracy to commit a Hobbs Act robbery (18 USC 1951) is not a crime of violence.

By extension, this means that in the 4th Circuit, no conspiracy to commit a violent crime is itself a violent crime (although it is in the 2nd Circuit).

violence160110The 4th Circuit focused on the phrase “by its nature” in 924(c)(3)(B), saying that the language directs courts to consider only the basic or inherent features of “an offense that is a felony,” and that the phrase “directs courts to figure out what an offense normally… entails, not what happened to occur on one occasion. Had Congress intended a conduct-specific analysis instead, it presumably would have said so; other statutes, in other contexts, speak in just that way… We cannot adopt a reading of 924(c)(3)(B) that renders part of the statute superfluous over one that gives effect to its ‘every clause and word’.”

As important as Simms may be to the 924(c) debate, it is clear that it is not the last word. The Supreme Court is going to resolve the sharp circuit split in Davis as early as June, although it is could well hold off oral argument and a decision to the term beginning in October 2019.

United States v. Simms, 2019 U.S. App. LEXIS 2341 (4th Cir. Jan. 24, 2019)

– Thomas L. Root

First Step Act Beneficiaries By The Numbers – Update for January 25, 2019

Leave a comment

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

SENTENCING COMMISSION RELEASES FIRST STEP CHECKLIST, IMPACT STUDY

imageThe Romans had a phrase for it: “Cui bono?” Last week, the U.S. Sentencing Commission tried to answer that question about the First Step Act.

The extra seven days of good time granted by the Act will benefit the most inmates, about 142,500 federal prisoners (79% of the 180,390 federal prison population), excluding only people with life sentences or sentences of less than a year and a day (which are ineligible for good time under 18 USC 3624[b][1]). The earned time credit the Act awards for completing programs that reduce recidivism is in second place. The Commission estimates that it will benefit about 106,000 eligible inmates (about 59% of the population).

The retroactive Fair Sentencing Act provision of the First Step Act only touches about 2,660 inmates, but it has an outsized effect on racial disparity: 90% of whom are black.

elderly180517The elderly offender home detention program expanded by the Act has 1,880 inmates who are currently eligible (the right age, right offenses and right amount of time served). Of course, the EOHD program, unlike the other First Step programs, will see an influx of additional inmates who reach the right age and service of sentence.

The Commission also issued an 8-page fact sheet answering questions about implementing the sentencing portions of First Step. In it, the USSC notes that First Step requires no changes in the Guidelines (which is a good thing because the 7-member Commission is down to only two voting members, leaving it unable to approve any new Guidelines until the Senate approves additional commissioners).

USSC, Sentence and Prison Impact Estimate Summary (Jan. 18)

USSC, ESP Insider Express: First Step Act (Jan. 18)

– Thomas L. Root

Court Must Address Defense Arguments on Sentencing – Update for January 24, 2019

Leave a comment

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

TALK TO ME

A dozen years ago, the Supreme Court held in Gall v. United States that district courts must sufficiently address the parties’ arguments and provide an explanation for sentences for good enough for “meaningful appellate review.” The 4th Circuit last week found that some district courts still don’t get it.

kporn160124Carl Ross was convicted of receiving and possessing child porn. His Presentence Report that included a recommended term of confinement and recommended special conditions of supervised released. The PSR recommended a prison sentence 188-235 months and lifetime term of supervised release.

Carl was already serving a 120-month state sentence related to the same set of facts. He asked the district court to impose a 60-month mandatory minimum sentence to run concurrent with the state term. The government argued for a 120-month sentence stacked on top of the state sentence, whining that Carl’s proposed sentence would result in “essentially no sentence” and “absolutely zero impact, zero additional punishment as a result of the conduct in this case.” The prosecutor said Carl destroyed evidence, lacked remorse and had continued his criminal conduct even after the state had caught him.

sorry190124Carl argued the government’s sentencing position was above the advisory Guidelines sentencing range, because it would result in two separate 120-month sentences to be served one after the other. His lawyer argued that “felony convictions relating to sexual offenses are already very punitive and that the lifelong social stigma” Carl would experience justified a 60-month concurrent sentence. Also, he offered a mental health report showing Carl’s apparent lack of remorse was nothing more than a symptom of his mental disorders, which among other things caused him to insist on trial instead of taking a plea. Defense counsel argued that Carl maintained gainful employment, cared for his aging mother and had only a relatively small amount of illicit material compared to the average child porn offender.

After hearing the arguments, district court imposed a 120-month, stacked on the state sentence and lifetime SR. The judge said he found Carl’s arguments unpersuasive and that “the government’s recommendation is appropriate.” This was too little explanation even for the government, which asked the court to explain its basis for the sentence. The court replied with gibberish, saying essentially that it was concerned about the lack of remorse, and it believed “it’s a specific deterrence, requires the sentence I’m imposing. I did not find that the guidelines are so flawed as to essentially have no sentence at all. And in terms of general deterrence, I think that the sentence I’m imposing is required.”

Sentencestack170404Last week, the 4th Circuit threw out the sentence as procedurally unreasonable. Noting that a “district court must address or consider all non-frivolous reasons presented for imposing a different sentence and explain why he has rejected those arguments,” the Circuit complained that “the district court did not address or consider any of the numerous non-frivolous arguments advanced by Ross’s counsel requesting a lower and concurrent sentence.” The appellate panel was particularly unhappy that “the district court did not provide an individualized assessment regarding important mitigation evidence related to Ross’s mental health,” care of his mother, gainful employment, and the fact that he possessed a relatively small amount of kiddie porn.

The Circuit said, “the district court could have conceivably given Ross a different sentence if it had considered his non-frivolous mitigation arguments. The district court had an obligation to specifically address Ross’s non-frivolous arguments. It did not do so here.” This was equally true for the district court’s failure to explain why Carl got lifetime SR. “It is the settled law of this circuit,” the panel wrote, “that Ross has a right to know why he faces special conditions that will forever modify the course of his life, and the district court’s silence violated his rights.”

United States v. Ross, 2019 U.S. App. LEXIS 1186 (4th Cir. Jan. 14)

– Thomas L. Root

Time to Restart the Clemency Machine? – Update for January 23, 2019

Leave a comment

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

A RENEWED CRY FOR CLEMENCY

pardonme190123Focus on the First Step Act over the past six months has left President Trump’s push to reform clemency in the dark. Last week, however, The Atlantic published a proposal written by three prominent clemency advocates to revamp the process.

The two clemency processes now in use, law professors Mark Osler and Rachel Barkow, and Koch Industries general counsel Mark Holder argued, are the formal Dept. of Justice Pardon Attorney process and Trump’s much more informal celebrity-studded personal recommendation process.

Trump’s is informal: The president evaluates individual cases based on personal recommendations. The problem with the President’s system, the authors complain, is that it does not scale. Instead, it is a one-celebrated-case-at-a-time celebrity-driven approach, in which people with access to Trump lobby him in the Oval Office until he signs off.

But the DOJ process, the article contends, “isn’t any better. It courses through seven levels of review, much of it through a hostile… bureaucracy that tends to defer to local prosecutors who are, in turn, loath to undo the harsh sentences they sought in the first place. Indeed,” the authors observe, “the First Step Act passed in spite of DOJ opposition because those same prosecutors objected to lowering the mandatory minimum sentences that give them so much bargaining power.”

The articles cites some states as having better systems, including Arkansas, Connecticut, Georgia, and South Carolina. In those systems, an expert board – with people from criminal justice, social work, and psychology backgrounds, former judges, defense lawyers, prosecutors, and community activists – identify and evaluate clemency candidates.

obtaining-clemencyThe authors suggest that the President create a similar board of bipartisan clemency advisers who would work with a professional staff to identify cases for White House action. In 1975, President Gerald Ford impaneled an 18-member clemency board to help him with pardon requests from applicants charged with crimes related to avoiding the draft during the Vietnam War. That board was diverse and bipartisan, and ultimately recommended more than 13,000 pardons.

Trump convened a conference on revamp the clemency last summer, but nothing has come of it so far.

The Atlantic, The Clemency Process Is Broken. Trump Can Fix It (Jan. 15)

– Thomas L. Root

Loopholes Are Like the Tooth Fairy – Update for January 22, 2019

Leave a comment

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

CONFUSING WISHES FOR FACTS

I had the unpleasant task last week of telling a parent that her daughter had no procedural means of attacking her 6-year old conviction and sentence. The mother replied, ”But there has to be a loophole! There’s always a loophole!”

toothfairy190122Loopholes are like the Tooth Fairy. They’re fun to believe in, and pretending they exist is harmless enough. But you don’t want to factor the Tooth Fairy’s largesse into your retirement planning for one simple, very good reason. The Tooth Fairy doesn’t exist.

Likewise, contrary to the exclamation of my inmate’s mother, there does NOT have to be a loophole. Not confusing wishes for facts was the hard lesson Jason Lund learned last week.

In 2008, Jason got an enhanced sentence under 21 USC 841(b)(1)(A) because a death resulted from use of the drugs he was convicted of selling. But in 2014, the Supreme Court held in Burrage v. United States that finding a defendant guilty of the “death results” penalty requires proof that the harm would not have occurred in the absence of – that is, but for – the defendant’s conduct.

Jason filed a 2255 motion in 2016. But 28 USC 2255(f) sets strict deadlines for filing the motion, in this case one year from the date Burrage was decided or a year after discovering new evidence. Jason was well beyond both deadlines. But in 2013, the Supreme Court ruled in McQuiggin v. Perkins that if an inmate can show he or she is actually innocent, it “serves as a gateway through which a petitioner may pass whether the impediment is a procedural bar… or… expiration of the statute of limitations. Jason argued that the Burrage ruling made him actually innocent of the enhanced sentence, so his untimely filing did not matter.

Some of the people who say this really are. For others, it's just procedural...
Some of the people who say this really are. For others, it’s just procedural…

The actual innocence gateway exception is “grounded in the ‘equitable discretion’ of habeas courts to see that federal constitutional errors do not result” in innocent people being imprisoned. To establish actual innocence, a movant must show that it is more likely than not that no reasonable juror would have found him or her guilty beyond a reasonable doubt, if the new evidence or new legal holding were applied.

Last week, the 7th Circuit ruled that Jason was too late. It held that the actual innocence exception certainly does apply where a petitioner has new evidence, like DNA evidence, that proves him innocent. But “actual innocence” cannot be used to excuse untimely filing where a subsequent change to the scope of a law renders the conduct for which a movant was convicted to be no longer criminal.

The problem, the 7th said, was that Jason was trying to use Burrage both as his claim for actual innocence and his claim for relief on the merits. A petitioner’s actual innocence claim and claim for relief on the merits cannot be the same. If it could, “it would completely undermine the statute of limitations for bringing initial 2255 motions within one year from the date a new right is recognized by the Supreme Court.”

gateway190122The Court explained the actual innocence exception is merely a gateway through which a court can consider a petitioner’s otherwise barred claims on their merits. The whole idea is that a petitioner will have underlying claims separate from the actual innocence claim, and will use the actual innocence claim solely to excluse an untimely filing. The Supreme Court has not recognized a petitioner’s right to habeas relief based on a stand-alone claim of actual innocence.

The point of the exception, the Circuit said, is to ensure that federal constitutional errors do not result in innocent people being locked up. This suggests that the underlying claim must be a constitutional claim, rather than a statutory claim like Burrage.

Lund v. United States, 2019 U.S. App. LEXIS 1603 (7th Cir. Jan. 17,  2019)

– Thomas L. Root