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Third COVID Wave Breaking Over BOP – Update for November 16, 2020

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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.

BOP TRANSFEREES BRING COVID TO FORT DIX, SENATORS SAY

The third wave of COVID-19 sweeping the country apparently does not intend to exempt the Federal Bureau of Prisons. Active inmate cases, which have averaged 1,900 a day since September 1, have shot up last over the last two weeks, hitting 3,163 last Friday. That’s the highest number of BOP cases since the end of July. At the same time, BOP staff cases hit an all-time high of 1,049. The virus is present in 119 of 122 BOP facilities.

BOPCOVID201116

Last week, Government Executive magazine reported that the BOP “has experienced perhaps the worst outbreak of any federal agency per capita, with about 7% of its workforce contracting the virus. All told, more than 2,500 bureau employees have tested positive. Nearly 20,000 federal prisoners have also contracted COVID-19, or about 14% of the federal inmate population.”

The death toll has mounted as well. Three more federal inmates deaths were reported since November 6th, one at USP Tucson and two at the Springfield medical center. Citing a National Commission on COVID-19 and Criminal Justice study, the Washington Post reported last week that “when adjusted for age, sex and ethnicity, the mortality rate in federal prisons is twice that of the general population.”

The BOP has reported that as last Friday that it has tested half of all inmates at least once. The number testing positive inched up a point last week to 26%. One out of four tests has been positive ever since the BOP began reporting testing last spring.

reinfection200831The hottest BOP facilities for COVID-19 last week were USP Tucson (Arizona) with 363 inmate cases, and FCI Fort Dix, New Jersey (233 cases). These were followed by FCI Beaumont Low (Texas), USP Thomson (Illinois), FCI Bastrop (Texas), the FMCs at Butner, North Carolina, and Springfield, Missouri, USP Marion (Illinois), FCI Yazoo Medium (Mississippi), FCI Gilmer (West Virginia), FCI Greenville (Illinois) and FCI Jesup (Georgia), all with 100 or more cases.

The Fort Dix epidemic is especially troublesome, with Congressional criticism raining down on the BOP even as employee unions finger-point. Senators Robert Menendez and Cory Booker (both D-New Jersey) wrote to BOP Director Michael Carvajal last Monday, accusing the BOP of negligently transferring COVID-19 infected prisoners from FCI Elkton to Fort Dix, thus introducing the disease to Fort Dix. The senators said, “It is clear that BOP does not have an effective plan to ensure COVID-19 positive inmates are not transferred between facilities…”

The Philadelphia Inquirer reported last week that “as recently as mid-October, US Attorneys opposing compassionate release motions by Fort Dix prisoners argued that ‘the BOP has taken effective steps to limit the transmission of COVID-19’.” Now, the paper said, “videos purportedly taken by a prisoner inside Building 5812 and circulating among family members show a unit in chaos — debris scattered and trash overflowing — a byproduct of a shortage of staff and healthy inmate workers, according to family members.”

The BOP says all prisoners are quarantined for 14 days and tested prior to being moved. The receiving prison is also to test and quarantine new prisoners for two weeks, which is what Brian Kokotajlo, a BOP union official at Fort Dix, says happened there. He’s skeptical about how things were handled at Elkton. “They said the inmates were tested when they left Elkton, but personally I don’t believe that to be true,” Kokotajlo said. “If they tested them at Elkton, how they made it on the bus and how they made it to us and became positive in a six-hour drive across the state of Pennsylvania, nobody seems to be able to figure that out.”

fingerpoint201116But Joseph Mayle, the Elkton union chief, blamed false negatives produced by COVID-19 rapid testing for infected prisoners being sent to Fort Dix. “My staff here, they’re not going to throw inmates on a bus without testing them,” Mayle said. “If that’s what they’re saying, that’s not what’s happening.”

BOP spokesman Justin Long issued a statement denying that Elkton transfers caused the Fort Dix outbreak. “Contact investigations indicate the infections were not the result of this inmate movement but rather may have originated from the community,” Long said.

In Pekin, Illinois, local residents protested this past weekend, complaining that the BOP is failing to protect inmates from coronavirus and asking the agency to release eligible inmates to home confinement. Dozens of protesters gathering Saturday, “demanding inmate get proper medical care, nutrition and hygiene needed to keep safe from the virus,” a local TV station reported.

The group also alleged that “the BOP’s website is not keeping up-to-date information, saying the 66 confirmed cases within the Pekin prison is a false number,” WMBD-TV reported. “They believe that number is well over 100.”

Washington Post, Prisons and jails have become a ‘public health threat’ during the pandemic, advocates say (November 12, 2020)

Government Executive, Coronavirus Cases Are Spiking at Federal Agencies (November 12, 2020)

Philadelphia Inquirer, COVID-19 outbreak infecting hundreds at Fort Dix is ‘escalating crisis,’ N.J. senators warn (November 10, 2020)

VICE NEWS, Federal Prisons Keep Turning Into COVID Nightmares: ‘Everyone Looks Like Death’ ( November 12, 2020)

WMBD-TV, Pekin community members say federal prison system isn’t taking COVID-19 seriously (November 14, 2020)

– Thomas L. Root

U.S. Attorney Accidentally Violates Brady, Schemes to Cover It Up… Again – Update for November 13, 2020

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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.

GOVERNMENT ADMITS TO ‘SUBSTANTIAL’ BRADY FAILURES

brady160314In an October 30th letter, the United States Attorney’s Office for the Southern District of New York admitted to “substantial failures” in disclosing potentially exculpatory evidence, over a month after a Southern District of New York judge excoriated the prosecutors for multiple failures that led the court to dismiss a criminal case with prejudice after a jury had convicted the defendant.

In a September order in United States v. Nejed – a case in which the defendant was charged with export and money-laundering offenses arising from dealing with Iran – the government was found to have repeatedly misled the court and defense counsel as to facts relating to late production of evidence helpful to the defense. Ever since Brady v. Maryland, a 1963 Supreme Court decision, the prosecution has had a constitutionally-defined duty to turn over evidence that may help the defendant.

In Nejad, the government failed to do so. When prosecutors discovered during trial that a crucial piece of evidence had not been provided to the defense, email records showed that they schemed over how to bury the evidence in a massive “document dump” to defense attorneys, in hopes the defense would not notice it.

documentdump201113Ultimately, despite the fact that a jury convicted Defendant Nejad, the Court threw the case out after the Government was caught withholding evidence, and sheepishly agreed to the dismissal.

But that didn’t end things. District Judge Allison Nathan, understandably troubled by the Government’s conduct, issued an order subsequent to the dismissal, in which she observed

it is possible that the issues articulated above, as well as the precipitating factors the Court identifies, are not unique to this case. Indeed, in the last criminal case tried before the Undersigned, the Government also seriously breached its Brady obligation. Following that revelation, the Court was repeatedly assured by the leadership of the USAO that the matter was being taken seriously, would be systemically addressed through training, and would not reoccur. The record before the Court in this case belies those assurances.

It is impossible for the Undersigned alone to address and resolve these issues. Here too, it is thus the Court’s view that these errors should be investigated by DOJ’s Office of Professional Responsibility. Moreover, the manifold problems that have arisen throughout this prosecution — and that may well have gone undetected in countless others — cry out for a coordinated, systemic response from the highest levels of leadership within the United States Attorney’s Office for the Southern District of New York.

The US Attorney’s October 30 letter assured the judge that the mistakes were unintentional and would not happen again. The judge noted in her September order that she had heard that one before…

Memorandum Opinion and Order, United States v. Nejad, Case No 18cr224, 2020 US Dist LEXIS 169686 (September 16, 2020)

Law 360, Feds Admit ‘Substantial Failures’ In Iran Sanctions Case (October 30, 2020)

– Thomas L. Root

Government Seeks to Undo 4th Circuit Rehaif ‘Structural Error’ Decision – Update for November 12, 2020

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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.

GOVERNMENT SEEKS CERTIORARI ON GARY DECISION

The 4th Circuit’s United States v. Gary decision, which holds that Rehaif error in a case is structural and will get the defendant an automatic reversal, is an outlier. Every other circuit deciding the question holds that a defendant challenging his conviction under Rehaif has to show that, but for the error, he would have probably would have won.

guns200304Rehaif error, for those of you joining us late, flows from the Supreme Court’s 2019 decision in Rehaif v. United States. In that decision, the Court ruled that the crime of being a prohibited person (such as convicted felon or an alien in the United States illegally, but there are seven other categories as well). Before Rehaif, it was enough for the government to show that someone knew he or she possessed a gun while being a prohibited person. One did not have to know that he or she was “prohibited.”

This may seem like a distinction without a difference. Hamid Rehaif, a citizen of the United Arab Emirates, came to the U.S. lawfully to attend college. But he flunked out. Nevertheless, he remained in Melbourne, Florida, living openly and even indulging his passion for target shooting at a local gun range. When interviewed by government agents, he was cooperative and expressed his belief he was still entitled to be in the United States.

The government – being the government – didn’t just drive the cooperative Mr. Rehaif to the airport to catch Emirates’ next flight back to Dubai. That would have made too much sense. Instead, it indicted Hamid for being in illegal alien in possession of a firearm and ammunition, a violation of 18 USC §§ 922(g) and 924(a). Hamid’s lawyer did his best to defend Hamid by arguing that he had no idea he was in the United States illegally, but the trial court – based on clearly established law in the 11th Circuit (and most everywhere else) – ruled that whether Hamid knew he was prohibited from possessing a gun or ammo, or that he knew he was a member of a prohibited class under 18 USC 922(g), simply didn’t matter.

dubai201112

It took the Supreme Court to straighten things out (unfortunately for Hamid, two years after he finished his federal prison time and was sent home to the UAE). In Rehaif, the Court said that it was clear that the penalty language of 18 USC 924(a) – which prescribed the punishment for violating 18 USC 922(g) – required that the government prove that a defendant knew that he or she was a member of a prohibited class.

You may ask yourself, “How could someone not know he or she was a convicted felon?” It’s not that simple. The statute does not exactly say “convicted felon.” Instead, it says convicted of a crime “punishable by imprisonment for a term exceeding one year.” That phrase “punishable by imprisonment for a term exceeding one year,” in turn, is defined in 18 USC § 921(a)(20) as not including

(A) any Federal or State offenses pertaining to antitrust violations, unfair trade practices, restraints of trade, or other similar offenses relating to the regulation of business practices, or

(B) any State offense classified by the laws of the State as a misdemeanor and punishable by a term of imprisonment of two years or less.

What constitutes a conviction of such a crime shall be determined in accordance with the law of the jurisdiction in which the proceedings were held. Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.

So the question is whether someone knew that he or she was convicted of (a) a crime punishable by more than a year in prison which (b)(1) was not one of the offenses related to the regulation of business practices, or (b)(2) classified by the state as a misdemeanor, or (c)(1) was expunged or (c)(2) set aside or (c)(3) for which a pardon had been issued or (c)(4) civil rights restored, unless (d) the restoration did not meet enumerated standards.

lost201112Whew. The better question is how someone without a law degree could possibly how whether he or she was a prohibited person or not.

That has not prevented lower courts asked to revisit § 922(g) convictions, generally but inaccurately called “felon-in-possession” convictions, from ruling that a conviction should be upheld if it was unlikely the defendant could have won even if the jury had been told the government had to prove the defendant’s knowledge. Except in the Fourth Circuit: there, the Gary decision established that Rehaif error is “structural,” that is, an error that permeates “the entire conduct of the trial from beginning to end” or “affect[s] the framework within which the trial proceeds…”

The 4th Circuit’s holding that Rehaif is structural error means that this Circuit is the place to be for people trying to get back into court on felon-in-possession charges. But the government, wanting to head that off at the pass, has filed a petition for certiorari with the Supreme Court, challenging the Gary decision. Although petitions for cert filed by defendants has about a 1% chance of grant, not so for the government. Government decisions to file for cert are not all that frequent, and the Supreme Court takes such petitions seriously.

Defendant Gary is to oppose the motion by December 8th.

United States v. Gary, Case No 20-444, Petition for Certiorari filed Oct 7, 2020

– Thomas L. Root

COVID’s a Mess in America… the BOP is No Different – Update for November 10, 2020

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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.

THIRD WAVE BREAKING?

Over the past few weeks, the BOP’s official COVID-19 count has not been climbing with the rest of the nation’s, but late last week, the numbers took off, suggesting a third wave may be breaking over the BOP as well as the rest of the country.

plague200406As of last night, the BOP reported 2,418 sick inmates, up a whopping 24% from the Friday before. There are a record 953 sick staff, up 5% last week. Ominously, six federal inmates died last week, including four at MCFP Springfield (Missouri), one at FCI Big Spring (Texas), and one in a private prison.

The current outbreak at FCI Fort Dix illustrates the virulence of COVID. WHYY Radio reported last week that “in October no inmates tested positive. On Thursday, there were 214 positive cases, according to a report from the Federal Bureau of Prisons. It’s the second-highest amount of active cases out of every system in the country.”

After an inmate complained to a federal court that Elkton prisoners transferred to Fort Dix “were placed in a unit that later had 10 inmates test positive for COVID-19,” a federal judge last week ordered the government to “provide details on how the prison has mitigated the spread of COVID-19.”

The Appeal last week ran an interview with Dr. Homer Venters, who has provided expert testimony in several suits against the BOP on COVID in prisons, most recently at Lompoc. Venters was especially critical of the availability of health services:

All these detention settings have ‘sick call’ and that’s the primary way for people to report COVID symptoms and get care. But when you talk to incarcerated people, they routinely tell you that their sick call requests go unanswered, or they have to submit multiple sick call requests just to get a response, or they may get a response that says, ‘Here’s some Tylenol,’ but it isn’t really an assessment or care for COVID. In some cases, those sick call requests get thrown out. And so we have this group of people who, when they seek care for COVID-19, they must use this process to access care. It’s a system that’s broken.

The current COVID hotspots in the BOP system are Fort Dix, Bastrop, Springfield, Tucson, Thompson and Butner, all with over 100 inmate cases each. As of yesterday, the BOP reports it has tested 48.8% of all inmates. The positivity rate remains at 25.6%.

The Appeal, Coronavirus in Jails and Prisons (November 6, 2020)

WHYY Radio, COVID-19 outbreak inside Fort Dix prison is spreading (November 7, 2020)

Burlington County Times, U.S. attorneys for Fort Dix ordered to detail COVID-19 response; cases at prison top 200 (November 5, 2020)

Memorandum Order, R.24, November 3, 2020, Whiteside v. Fort Dix Federal Prison, Case No 1:20cv5544 (Dist. New Jersey)

– Thomas L. Root

Whither Sentence Reform After Biden Win? – Update for November 9, 2020

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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.

SENTENCE REFORM DIDN’T WIN LAST TUESDAY, BUT IT DIDN’T LOSE, EITHER

Reform200819Anyone who read the House of Representatives’ version of The First Step Act (which was watered down substantially to satisfy the Republican-led Senate) or, for that matter, exulted at the House’s HEROES Act last May has some idea what an unbridled Democratic-controlled Congress and White House might do to advance sentence reform. Retroactivity, relaxed compassionate release and elderly offender programs, maybe even some relief for people convicted of violent crimes…

We probably did not get that last week. The Democrats still control the House (but with a smaller majority), and the weekend brought us a Democrat for president-elect. The Senate has 50 Republicans and 48 Democrats, however, with the final two Senate races in Georgia not to be decided until January. If even one of the two eventual winners is Republican (which is likely), the Republicans and Majority Leader Mitch McConnell (R-Kentucky) will still rule the Senate.

But that does not mean we won’t see some criminal justice reform in the next two-year Congress. President-elect Joe Biden spent decades in the Senate, and one of his great strengths is the ability to make deals. “And perhaps most importantly,” Politico reported last week, “Biden and McConnell have a real relationship — forged over the years as Senate colleagues and combatants. McConnell was the only Senate Republican to attend the funeral for Biden’s son Beau in 2015, and he’s largely stayed away from GOP attacks on Biden’s other son, Hunter.”

“They have negotiated big things before. They’ve come through some very hard and even bitter fights over judicial confirmations,” Sen. Chris Coons (D-Del.), a close Biden ally, told Politico in an interview. “But I think they’ve managed to stay friends or have a working, professional relationship even in the hardest of times.”

potscooby180713Voters may be ready for change. The Appeal called last Tuesday “a banner election against the war on drugs,” noting that Oregon voters approved a “groundbreaking initiative to decriminalize drugs” – not just marijuana – making low-level drug possession a civil offense, punishable by a fine, rather than jail time. Four other states made recreational pot legal, raising the number of states permitting it to 15.

President Trump, who was himself a reluctant supporter of the First Step Act, reminded everyone during the campaign that Biden was the sponsor of the Violent Crime Control and Law Enforcement Act of 1993,  (which morphed into the Violent Crime Control and Law Enforcement Act of 1994) – legislation that  critics claim is responsible for the large numbers of federal prisons locked up today. Some suggest that that fact gives the president-elect something to live down. For that matter, the vice-president elect, Kamala Harris, was hardly progressive during her days as a prosecutor. Some are already predicting she will lead the sentencing-law reform efforts of the Biden administration.

In his Sentencing Law and Policy blog, Ohio State University law professor Doug Berman said priorities that ought to be able to garner the bipartisan support of a Republican Senate and Democratic White House include repeal of mandatory minimums, further reduction of the crack/powder sentencing disparity, making all sentencing reforms retroactive, reinvigoration of compassionate release “so that the sick and elderly are transitioned out of incarceration so long as they do not pose a public safety risk,” and removing barriers to reentry.

bipartisanship201109Berman suggests that Politico’s observation that “’McConnell has already succeeded in his longtime goal of reshaping the judiciary’ has me wondering whether Senator McConnell might be less adverse to giving federal judges significantly more sentencing discretion now that he views so many as the product of his own king-making.”

Politico, America’s new power couple: Mitch and Joe (Nov 5)

The Appeal, How Criminal Justice Reform Fared at the Ballot Box on Tuesday (Nov 5)

Sentencing Law and Policy, Can we be hopeful federal leaders will make deals to advance federal criminal justice reforms in the next Congress? (Nov 6)

– Thomas L. Root

‘You May Be Sick, But You’re Still a Bad Guy’ – Update for November 5, 2020

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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 NOTES ABOUT COMPASSIONATE RELEASE…

Two decisions last week delivered some handy reminders to people seeking “compassionate release” sentence reductions under 18 USC § 3582(c)(1)(A)(i) that (1) a defendant’s being sick or prone to get sick is not the only concern of the judge; and (2) there are procedural pitfalls for the unwary.

death200330By now, everyone knows that you have to show “extraordinary and compelling” reasons warranting a sentence reduction. These days, such reasons are usually (but not always) that you have medical conditions that puts you at risk for catching COVID (although a variety of reasons from medical to questions of fairness have supported compassionate release in the two years since defendants first got the right to bring the motions themselves in the First Step Act).

But “extraordinary and compelling” is just part of the showing you have to make. The statute also requires that the court consider the “sentencing factors” of 18 USC § 3553(a). And whether the factors favor grant of your motion is almost solely the judge’s call.

The factors are framed in such terms as consideration of “the nature and circumstances of the offense and the history and characteristics of the defendant” and “the need for the sentence to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; to provide adequate deterrence to criminal conduct; to protect the public from further crimes of the defendant; and to provide the defendant with education, training, medical care, or other treatment.” But what it all comes down to whether the judge thinks the defendant has been locked up long enough.

Keith Ruffin filed a motion with his sentencing court for compassionate release, arguing that his heart problems, high blood pressure, high cholesterol, and blood clots, put him more at risk for COVID. These are all pretty good reasons, according to the Centers for Disease Control and Prevention. But his sentencing judge disagreed that his health concerns were “extraordinary and compelling reasons” for relief, and held that even if they were,  the § 3553(a) sentencing factors argued against a sentence reduction.

lockedup201105Last week, the 6th Circuit upheld denial of Keith’s compassionate release motion. It ignored Keith’s solid argument that the district court had erred in holding that because Keith could currently manage his health conditions, his risk factors were not extraordinary and compelling reasons for compassionate release. Instead, the court said, the district court is pretty much all there is in deciding that cutting Keith loose was inconsistent with the 3553(a) factors.

“These ubiquitous factors,” the Circuit said, “consider such things as the characteristics of the defendant, the nature of the offense, and various penological goals, such as the need to promote respect for law and to protect the public. This last requirement confirms an overarching point: The district court has substantial discretion. The statute says that the district court “may” reduce a sentence if it finds the first two requirements met; it does not say that the district court must do so. Even if those conditions are met, therefore, a district court may still deny relief if it finds that the “applicable” 3553(a) factors do not justify it. And in a reduction-of-sentence proceeding, as at sentencing, the district court is best situated to balance the § 3553(a) factors.”

A district court might abuse its discretion, the 6th said, if its denial was based on a purely legal mistake (such as a misreading the extraordinary-and-compelling-reasons requirement) or if it engaged in a substantively unreasonable balancing of the § 3553(a) factors. Here, the district court considered the amount of time served, his somewhat uneven prison record as evidence of the extent of rehabilitation, and the fact Keith had committed his crimes while suffering from the same health concerns he now relied on to justify compassionate release.

In another case, Art Payton’s compassionate release motion was denied by his sentencing court last July 24th. He filed a notice of appeal on August 10th, 17 days later. Last week, the 6th Circuit dismissed his appeal.

timewaits200325The deadline for an appeal in a civil case is at least 30 days after the final order is issued (and can be more in some cases). But a motion under 18 USC § 3582(c)(1)(A)(i) is a continuation of a criminal case, and thus is subject to the 14-day deadline set out in Fed.R.App.P. 4(b)(1).

Rule 4(b)(4) authorizes the district court to extend the time in which a party may appeal for up to 30 days from the end of the fourteen-day appeal period provided in F.R.App.P 4(b)(1)(A). However, the court must find “good cause” or “excusable neglect” for the failure to timely file a notice of appeal.

The Court sent the case back to the district court to determine whether Art’s excuse – that the prison has been “on an institution-wide lockdown and getting copies in this environment is problematic” – should allow him to file a belated appeal.

United States v. Ruffin, Case No. 20-5748, 2020 U.S. App. LEXIS 33689 (6th Cir Oct 26, 2020)

United States v. Payton, Case No 20-1811, 2020 U.S. App. LEXIS 33965 (6th Cir Oct 28, 2020)

– Thomas L. Root

6th Circuit Finds Another Way to Shut the Post-Conviction Door – Update for November 3, 2020

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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.

PROCEDURAL WHIPSAW

There’s an old military axiom, correctly or not attributed to World War II General Omar Bradley, that “amateurs talk strategy; professionals talk logistics.” If there is a criminal law version of that, it would be “prisoners talk substance; judges talk procedure.”

quicker200428Time and again, inmates say they want to challenge their conviction or sentence because their lawyers were idiots, the government was corrupt, or the witnesses lied. They often have great arguments and convincing proof. But when I ask, “so how are you going to get back into court after having lost two prior 2255 motions and one 2241 motion, and after 10 years have passed since you were convicted?” I usually just hear silence but occasionally a mumbled, “but man, I have a great case.”

The 6th Circuit last week reminded us just how hard it can be to get a post-conviction argument heard, even a “great case” and even when you think you’ve done everything right.

Johnny Gatewood was convicted in 1999 under the 18 USC § 3559(c), a “three strikes” statute that hammers people convicted of violent crimes who have been convicted of prior violent crimes. One of Johnny’s prior “strikes” was an Arkansas robbery. After the Supreme Court Johnson v. United States decision in 2015 held the Armed Career Criminal Act’s “crime of violence” definition was unconstitutionally vague, Johnny filed a 2255 motion arguing his prior robbery was no longer a crime of violence.

IACappeal201103The government countered that Johnny had procedurally defaulted on his argument, because he didn’t raise his Arkansas robbery claim in his direct appeal, 15 years before Johnson was decided. Generally, if a claim could have been raised on the appeal from the original conviction (generally called “direct appeal”) but was not, it is considered procedurally defaulted. A procedurally defaulted claim  cannot be raised later in a 2255 motion, for the very good and efficient reason that a direct appeal is where you appeal. A post-conviction motion is not an assistant deputy appeal, but instead, it is reserved for issues that could not have been raised on appeal because they were not around at the time, or because one needs to develop an evidentiary record.

To excuse a procedural default, a defendant must show “cause,” a good reason for not raising the claim on appeal, and must show he or she was prejudiced by the error alleged in the claim.

One way to show “cause” is to argue that claim is so novel that its legal basis “was not reasonably available” on appeal. That’s what Johnny argued.

Last week, the 6th Circuit turned Johnny down. The Circuit held the vagueness issue the Supreme Court decided in the 2015 Johnson case had in fact been raised back in 1997 in several other cases. This meant, the Circuit reasoned, that the argument was available to Johnny’s counsel at the time if he had only cared to use it.

Johnny agreed the issue was being raised in some cases, but everyone else who had raised it got hammered. Thus, he argued, raising the vagueness claim would have been futile, “foreclosed,” he said, “by ‘a near-unanimous body of lower court authority’.”

magic8ball201103The 6th Circuit didn’t care. Instead, it ruled that such futility cannot be excuse a procedural default, “at least where the source of the ‘perceived futility’ is adverse state or lower court precedent.” Instead, the Circuit said, “unless the Supreme Court has decisively foreclosed an argument, declarations of its futility are premature.” In other words, you must be sure to beat your head against the wall (and waste everyone’s time) by raising every conceivable issue that has been raised by every other defendant in your position, in the vain hope that a decade or two hence, the Supreme Court might hear that issue and decide it favorably.

In short, you’re procedurally sandbagged: if your lawyer didn’t see Johnson coming 15 years before the decision was handed down, tough luck. No court would say the attorney was ineffective because he or she couldn’t foretell the future. But if your Magic 8 Ball didn’t tell you to raise an issue that was still 15 years away, the 6th said, it’s your fault.

The Circuit admitted that two other circuits have gone the other way on the issue, and held that lower court rulings do create futility. Maybe the circuit split means that the Supreme Court will settle the question. Until then, it is futile to argue futility.

Gatewood v. United States, Case No. 19-6297, 2020 U.S. App. LEXIS 34200 (6th Cir Oct 29, 2020)

– Thomas L. Root

ACLU Brings Second FCC Butner Suit Over COVID – Update for November 2, 2020

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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.

ACLU CLAIMS BOP COVID TESTING STRATEGY IS ‘INCOHERENT’

A coalition of civil rights groups led by the American Civil Liberties Union filed a class-action lawsuit against the Federal Bureau of Prisons last week over its handling of COVID-19 outbreaks at FCC Butner. The suit seeks an injunction to protect Butner prisoners, especially “vulnerable people… who, because of their medical conditions and/or advanced age, are at higher risk of severe injury or death from COVID-19.”

suit201102The lawsuit alleges that the BOP has “tested too few people at Butner, too infrequently, and too late,” and fails “to separate people who tested positive from those who tested negative for several days after receiving the test results.” The suit claims screening for symptoms has also been sporadic and ineffectual. The claims include allegations of inadequate cleaning and disinfecting procedures to adequately protect the men housed at Butner. As well, the allegations take aim at BOP management of CARES Act home confinement and compassionate release:

Despite direction from the US Attorney General months ago to expeditiously consider medically vulnerable people for home confinement or other release, Defendants continue to oppose motions for compassionate release made by medically vulnerable people, and they have failed to order furloughs or transfers to home confinement with sufficient speed and in sufficient numbers.

FCC Butner, located about 25 miles north of Raleigh, North Carolina, holds nearly 4,000 male inmates, with five facilities: a medical center, a minimum-security camp, a low-security prison and two medium-security facilities.

The civil rights groups filed suit against the BOP last spring, alleging that officials have failed to protect the Butner population. In early June, a federal judge sided with the BOP, agreeing it had “made reasonable efforts” to control the virus.

In another suit, Lompoc prison officials were ordered by a Los Angeles federal judge three weeks ago to expedite the evaluation of more than 120 inmates deemed eligible for home confinement due to their risks of COVID-19, although only 44 have been released since July. Five inmates brought the federal class-action lawsuit last May, seeking alternative confinement after a COVID outbreak at Lompoc infected more than 1,000 inmates and staff. At least four inmates died as a result of the outbreak.

The October 8 order directed the BOP to confirm that all 129 eligible inmates were released to home confinement.

expert160905The BOP had argued there is no specified timeline to release inmates to home confinement and that such release requires a three-judge panel, according to the response included in the Oct. 8 filing. Meanwhile, last Friday the agency blasted a court-ordered report by Dr. Homer Venters, countering with its own expert who concluded that “FCC Lompoc has acted reasonably and diligently in dealing with the COVID-19 pandemic based on the CDC guidance and BOP guidance applicable at the time, including the comprehensive BOP COVID-19 Pandemic Response Plan.” The expert complained that Dr. Venters “consistently bases his critical conclusions on unverified statements that were made to him by unidentified inmates, despite the harsh judicial criticism that he recently received in an Eastern District of New York COVID-19 case for following that unreliable methodology.”

The BOP’s COVID numbers – 1,766 sick inmates as of last Friday – are down 7% from a week ago. But ominously, the number of sick staff continues to climb, hitting 896 on Friday. A month ago, there were 724 sick staff. Nationwide, 75% of all prison and jail staff cases since March have recovered. But only 60% of BOP staff cases have done so, suggesting that BOP staff COVID cases are increasing at a much faster rate than the rest of the country. This is critical, because the staff is the primary means by which COVID is being brought into facilities.

Circumstances surrounding the latest inmate COVID-19 death, Joe McDuffie at El Reno, are concerning. Joe tested negative for COVID on Oct 13. After that, according to the BOP, “he received daily symptom checks and did not express any symptoms associated with COVID-19. On Friday, October 23, 2020, institution staff found Mr. McDuffie unresponsive.” He died later that day.

The BOP says 46% of the inmate population has been tested for COVID. One out of four of those 69,500 tests has been positive.

Hallinan v. Scarantino, Case No 5:20-ct-3333 (ED NC, filed Oct 26, 2020)

The Appeal, Coronavirus in Jails and Prisons (October 28, 2020)

BOP, Inmate Death at El Reno (October 29, 2020)

Santa Maria Times, Lompoc prison officials release 44 inmates to home confinement; more than 120 deemed eligible (October 30, 2020)

Respondents’ Statement, Torres v. Milusnic, Case No 20cv4450 (CD California, October 30, 2020)

– Thomas L. Root

State Can’t Make You Say “Uncle” – Update for October 30, 2020

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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.

BRANDED

Remember when you were a kid, and the neighborhood bully would knock you down and push your face into the mud or twist your arm or something until you cried “Uncle”? That is what is known as “compelled speech.

Nine states require sex offenders to carry driver’s licenses emblazoned with some variation of the words “SEX OFFENDER” in bright capital letters across the top of the card. It’s like making the former defendant say “Uncle!” for the rest of his life, every time he writes a check, votes or goes to the doctor (all places we regularly have to show our DLs, at least in Ohio).

brand201031In Louisiana, Tazin Hill had had enough crying “Uncle.” He altered his license to hide the sex-offender label, and he was charged with a felony for doing so. Last week, the Louisiana Supreme Court ruled that making sex offenders carry the labeled licenses violated the 1st Amendment by compelling them to say something the government ordered them to say, known as “compelled speech.” In this case, the label “SEX OFFENDER” was what the license holders were compelled to say.

The court held the identification card, branded with the words “sex offender” and the person’s “name, picture, address, and other identifying characteristics… is that “readily associated with him” and must be routinely displayed to others. Thus, “the branded identification card is compelled speech, and it is a content-based regulation of speech that consequently must pass strict scrutiny. While the state certainly has a compelling interest in protecting the public and enabling law enforcement to identify a person as a sex offender, Louisiana has not adopted the least restrictive means of doing so. A symbol, code, or a letter designation would inform law enforcement that they are dealing with a sex offender and thereby reduce the unnecessary disclosure to others during everyday tasks… As Louisiana has not used the least restrictive means of advancing its otherwise compelling interest, the branded identification requirement is unconstitutional.”

A state could as easily require people to carry licenses labeled “convicted felon” or “annoying neighbor” or even “leaves toilet seat up.” The mischief a state government can cause once people are being labeled is vast, making this and other similar decisions applicable to everyone, not just people convicted of sex offenses.

Louisiana v Hill, Case No 20-0323, 2020 LA LEXIS 2512 (LA Sup Ct Oct 20, 2020)

– Thomas L. Root

“If At First You Don’t Succeed…” Doesn’t Work in Habeas Corpus – Update for October 28, 2020

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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.

WHEN TOO MUCH IS MORE THAN ENOUGH

oneshot201029You pretty much only get one shot trying to convince your judge you were wrongly convicted in a habeas corpus motion under 28 USC § 2255 (except for a few circumstances not relevant here). But how about the “saving clause” in § 2255(e) which lets an inmate use another route to file habeas corpus when a § 2255 petition “is inadequate or ineffective to test the legality of detention?”

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

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

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

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

2255(e)filings201029“Abuse of the writ” is a common-law based “body of equitable principles informed and controlled by historical usage, statutory developments, and judicial decisions.” Under 28 USC § 2244(a), the Circuit held, it can dismiss a successive habeas application as an “abuse of the writ” where the movant raises a claim in a subsequent petition that either was raised or could have been raised in an earlier petition.

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

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

– Thomas L. Root