After Partying Last Week, First Step Finally Gets Down to Business – Update for April 9, 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.

FIRST STEP CELEBRATED, BUT WORRIES OVER IMPLEMENTATION REMAIN

Amid questions by some critics about the Administration’s support for the First Step Act, the Dept. of Justice’s National Institute of Justice (NIJ) yesterday announced the selection of the Hudson Institute to host the Independent Review Committee mandated by the Act to develop and implement risk and needs assessment tools and evidence-based recidivism reduction programs for the Bureau of Prisons.

firststepB180814“The Department of Justice is committed to implementing the First Step Act,” a DOJ press release quoted Attorney General William Barr as saying. “The Independent Review Committee plays an important role in that effort by assisting in the development of a new risk and needs assessment system and improvements to our recidivism reduction programming.”

NIJ also announced that it is contracting with outside researchers, including Grant Duwe, Ph.D., Zachary Hamilton Ph.D., and Angela Hawken Ph.D., for  consultation on the DOJ’s development of the risk and needs assessment system under the Act.  Dr. Duwe is the Director of Research for the Minnesota Department of Corrections, and an expert on the development of recidivism risk assessment systems. Dr. Hamilton is an Associate Professor of Criminal Justice and Criminology and the Director of the Washington State Institute for Criminal Justice, and focuses on treatment matching through risk and needs assessment systems. Dr. Hawken is a Professor of Public Policy at the New York University Marron Institute, and is the founder and director of New York University’s Litmus/BetaGov program, which assists in the development and validation of data-driven policies.

The announcement comes on the heels of last week’s White House  “First Step Act Celebration,” which was intended to bring attention to a rare piece of bipartisan legislation President Trump passed last year, and which he plans to highlight on the campaign trail. He also announced plans for a “Second Step Act,” focused on easing employment barriers for formerly incarcerated people.

“We are proving we’re a nation that believes in redemption,” Trump said, describing the “second step” legislation as featuring a $88 million funding request for prisoner social reentry programs. “The ‘Second Step Act’ will be focused on successful reentry and reduced unemployment for Americans with past criminal records, and that’s what we’re starting right away.”

“As president, I pledged to work with both parties for the good of the whole nation,” Mr. Trump said at the East Room gathering, pointing to the legislation as an example of bipartisan work that he said was “so important to me.”

But even as they danced at the White House, several observers expressed skepticism that the now-passed bill will enjoy the Administration’s full support.

money160118The Administration’s budget, released last month, listed only $14 million to pay for the First Step Act’s programs. The law specifically asked for $75 million a year for five years, beginning in 2019. The Office of Management and Budget, however, noted that the bill passed after the budget had already been finalized, and that the White House intended to revisit First Step Act funding.

Ensuring that First Step is adequately funded is crucial to its effectiveness, said Nancy La Vigne of the Urban Institute. “We always recognized that without proper funding, the First Step Act is really nothing more than window dressing,” she said.

Mr. Trump said that “my administration intends to fully fund and implement this historic law.”  On Apr. 2, the White House announced Trump will ask Congress for $147 million to implement First Step, far above the $14 million in the original budget.

risky-business-4fea6b87b70a6First Step requires development of a risk and needs assessment tool to assess inmates and determine what types of programs reduce recidivism and the incentives they would receive. The Dept. of Justice missed the Jan. 21 deadline for forming the committee tasked with developing the risk assessment standard, instead starting the committee formation process only yesterday. The Crime Report said last Monday, “It’s not clear whether the government will meet the July deadline for developing the system.”

Kevin Ring, president of Families Against Mandatory Minimums, says there hasn’t been much clarity from the administration on the status of these measures.

“All the timelines were ambitious, so it’s not surprising that they haven’t met them all,” Ring said. “It’s just it seems to be a bit of a black box. We don’t know what’s taking so long.”

The New York Times today observed that

Putting the law into practice quickly became complicated. The government partly shut down one day after Congress passed the bill and sent it to President Trump to sign into law, and many of the Justice Department employees who would have worked to fulfill it went on furlough. The shutdown, the longest in history, lasted through the end of January.

That has given law enforcement officials just over two months to start carrying out a complicated piece of legislation, a senior Justice Department official said in defending their pace… The criminal justice overhaul was also passed during intense tumult at the top of the Justice Department, which oversees the Bureau of Prisons and would be responsible for carrying out much of the new legislation.

The New York Times, Justice Dept. Works on Applying Sentencing Law as Critics Point to Delays (Apr. 9)

Hudson Institute, Hudson Institute To Host First Step Act’s Independent Review Committee (Apr. 8)

Washington Examiner, Trump announces Second Step Act to help ex-prisoners find work (Apr. 1)

The Crime Report, As White House Celebrates First Step Act, Inmate Risk-Assessment Tool Lags (Apr. 1)

The New York Times, Trump Celebrates Criminal Justice Overhaul Amid Doubts It Will Be Fully Funded (Apr. 1)

NPR, 3 Months Into New Criminal Justice Law, Success For Some And Snafus For Others (Apr. 1)

– Thomas L. Root

District Court Have No ‘Inherent Authority’ to Release Grand Jury Material – Update for April 8, 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.

GRAND JURY RECORD ACCESS FURTHER CURTAILED

A lot of prisoners start preparing for post-conviction filings by filing motions with their district courts demanding grand jury transcripts. And they are always turned down. And they fume and fuss, never appreciating how stout the walls protecting grand jury secrecy really are.

Last week, the D.C. Circuit made getting breach the grand jury-secrecy walls even more daunting.

grandjury190408Let’s start with a simple primer. Grand jury proceedings are secret.

And for good reasons. First, because prosecutors can drag any smell old carcass in from the the grand jury panel, a lot of not-so-accurate dirty laundry belonging to people who never end up being charged with a crime could be aired if the records were open. Second, because there is neither a moderating judge nor defense counsel present at a grand jury, all sorts of scurrilous and inadmissible drivel can be dumped into the record, matters that should never be made public so as to shame the subjects, even if they are guilty of some criminal offense or another. Third, witnesses may be cowed if required to testify against someone who has not been publicly charged for fear that their allegations, even if true, may cost them their reputations, employment or even physical safety.

For those reasons, Rule 6(e) of the Federal Rules of Criminal Procedure severely limits the ability of anyone other than the government (naturally) to access grand jury material. Specifically, a defendant may obtain grand jury records of his or her own proceeding only (1) “preliminarily to or in connection with a judicial proceeding;” or (2) if the defendant is able to show “that a ground may exist to dismiss the indictment because of a matter that occurred before the grand jury.” The second ground is especially circular: in order to obtain any information about the matter before the grand jury, a defendant has to already have information about the matter before the grand jury.

The non-lawyer in us can only be wistful, imagining all of the historically-fascinating information contained in closed grand jury records. Think of the grand jury records relating to the Lincoln assassination, Al Capone, Alger Hiss, the Rosenbergs, the Chicago 8, Watergate… Interesting stuff, if you could get to see it.

Historian Stuart A. McKeever is a guy who wants to see some of it, specifically grand jury records from the 1957 indictment of FBI agent John Joseph Franks, whom Stu figured was involved in making a prominent critic of Dominican Republic dictator Rafael Trujillo disappear. Stu said he needed the grand jury records for a book he’s writing on the critic’s disappearance.

historians190408Stu asked the district court that heard the Franks case to release the grand jury records for their historical interest and merit. His request was not based on any of the exceptions in Rule 6(e)(3)(E) of the Federal Rules of Criminal Procedure, but instead on the district court’s inherent authority to disclose historically significant grand jury matters. The court agreed it had such authority.

Last week, the Circuit Court reversed the district court. It noted that Rule 6(e)(2)(B) prohibits disclosures about grand jury matters “unless these rules provide otherwise. The only rule to ‘provide otherwise’ is Rule 6(e)(3). Rules 6(e)(2) and (3) together explicitly require secrecy in all other circumstances.

“Where Congress explicitly enumerates certain exceptions to a general prohibition,” the Court said, “additional exceptions are not to be implied, in the absence of evidence of a contrary legislative intent… The Rule on its face prohibits such a communication because it does not except it from the general prohibition. It would be most peculiar to [stress] that the exceptions in Rule 6(e) must be ‘narrowly construed,’ yet to hold now that they may be supplemented by unwritten additions.”

McKeever v. Barr, 2019 U.S. App. LEXIS 10061 (DC Cir. Apr. 5, 2019)
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– Thomas L. Root

Jammin’ the Nights (and Days) Away – Update for April 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.

BUSY SIGNAL

In the wake of a test done at FCI Cumberland in January 2018 (post, Feb. 16, 2018), two legislators have introduced a bill to permit the jamming of cellphone signals in prison facilities.

Sen. Tom Cotton (R-Arkansas) and Rep. David Kustoff (R-Tennessee) introduced identical measures, S. 952 and H.R. 1954, late last week.

droppedcall190404The BOP and state prison officials have long sought the ability to jam the signals, saying that cellphones, smuggled into institutions by the thousands by visitors, employees and even by drones, are misused by inmates to carry out commit crimes and plot violence. However, federal law currently prohibits transmitting a radiofrequency signal for the purpose of interference.

There is little opposition to the jamming bill except from some wireless industry groups, which argue that signal-blocking technologies could thwart legal calls.

S. 952 and H.R. 1954, To provide that the Federal Communications Commission may not prevent a State or Federal correctional facility from utilizing jamming equipment (introduced Mar. 28)

Charlotte Observer, Federal bills would let state prisons jam cellphone signals (Mar. 28)

– Thomas L. Root

Fascinating Look At Sentencing Disparity – Update for April 3, 2019

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

VIVA LA DIFFERENCE

Paul Manafort’s recent sentencing, a combined 90 months in prison, is a miscarriage of justice because it is too high or too low, depending on your political persuasion. But it has focused media attention on federal sentencing policy.

The Transactional Records Access Clearinghouse at Syracuse University has released a “study of judge sentencing differences at 155 federal courthouses across the country” in which “the judge with the lowest average prison sentence was compared with the judge with the highest average sentence at each courthouse.”

TRAC found that half of the 767 federal judges now on the bench serve at courthouses where the average prison sentence differed by at least 23 months depending upon which judge handled the case. Of these, 8.6% serve at six courthouses where the average prison sentence length handed down by judges varies according to judge by more than 48 months.

dice161221

The biggest crapshoot in the system is Orlando in the Middle District of Florida. There, the difference between sentence imposed by the softest judge and the hardest judge is 80 months. Second place is the Greenbelt district court of the District of Maryland, with over 64 months difference among the seven judges serving there.

The TRAC study compares average sentences for each federal judge without controlling for the specific caseloads of these judges, and its authors warn that variations in average sentences could reflect caseload differences as much as judicial differences. But in the full report, TRAC notes that due to “the fairly large number of defendants sentenced by each judge, where there is random assignment of cases to judges then statistically speaking each judge should have closely comparable caseloads so that differences in the nature of the offenses and defendants’ histories are roughly comparable.”

The study has its limitations but Ohio State University law professor Doug Berman wrote in his Sentencing Policy & Log blog that, “still, it is interesting and useful to be reminded statistically of what all federal criminal justice practitioners know well, namely that most judges have their own distinctive and unique approaches to sentencing decision-making.” The study is undoubtedly an important tool for any defense attorney wanting to show sentence disparity.

Sentencing Law and Policy, Interesting new TRAC data on intra-courthouse judge-to-judge differences in sentences (Mar. 24, 2019)

TRAC, Seeing Justice Done: The Impact of the Judge on Sentencing (Mar. 22, 2019)

– Thomas L. Root

The Blame Game – Update for April 2, 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.

‘SODDI’ SOMETIMES IS A GOOD DEFENSE

SODDI190402When the cops figured out that someone was using a computer address registered to Bill Pothier to download child pornography, they raided his apartment. It wasn’t easy: the agents had to pound on the door for 15 minutes before Bill (who was the only one there) admitted them to toss the premises.

Agents found Bill’s laptop sitting on a table in the living room. Forensics showed it had a few prohibited files in some obscure folders, and that was good enough for the government to charge Bill with possession of kiddie porn.

The problem was that two other people – Priscilla Pritchard and Barry Balis – lived in the apartment, too. Bill’s laptop was not password-protected, and only had a single generic user account installed by the manufacturer. Some of Bill’s innocent computer files were on the machine, but so were documents belonging to the two other residents as well as documents from a co-worker at Bill’s office.

Juries do not like kiddie porn or defendants charged with viewing it. For that reason, perhaps, it convicted Bill, who was, after all, the only guy in the courtroom the jury was allowed to blame. But last week, the 1st Circuit reversed Bill’s conviction, giving every defendant – no matter what his or her case is about – a lesson in reasonable doubt. Sometimes, “SODDI” – that is, ‘some other dude did it’ – is a good defense.

Unprotected190402The Circuit said, “The record in this case begins like the first chapter of a detective novel. The criminal act was clear: The laptop contained child pornography. Because the laptop was not password-protected and was found in a common area of the residence, the possible suspects were three: Poth, Pritchard, and Balis, all of whom apparently had access to the residence and, therefore, to the computer. At that point, the record becomes sketchy and the evidence sparse.”

Bill had two other apartments where he spent time, and nothing in the record showed whether the laptop stayed in one place or traveled with him. What’s more, the government did not link the times the porn was downloaded with Bill using the laptop, and neither of the other two residents of the apartment testified.

The government’s theory was that Bill owned and used the computer, so he had to know the porn was there. But to believe that, the Circuit said, the jury would have to believe that after he downloaded child porn, Bill “decided to forgo password protection and then left the laptop in the living room of a residence at which two other people received mail. Furthermore, during the 15 or so minutes when he knew the police were at the door, Bill did not conceal or destroy the laptop or run the file-shredding program that the government presumes he had installed.”

Added to that, the court noted, “the evidence does not reveal whether an innocent user of the computer would have been aware that it contained child pornography. The seven illegal videos contained on the computer at the time of the search were not filed in conspicuous locations, but rather in the recycle bin and in a temporary folder only visible to a user who overrode Microsoft’s default setting.”

blame190402The alternative was that one of the other residents downloaded the porn during one of Bill’s regular absences, and did not password-protect the machine because Bill would have noticed. “And because they were not present when the police came calling, neither of them could have hidden or destroyed the computer, or erased the child pornography, when the need to do so arose.”

“Each scenario is plausible, and though one might debate their relative merits, to settle on one beyond reasonable doubt would require guesswork,” the opinion stated. “And guilt beyond a reasonable doubt cannot be premised on pure conjecture.”

United States v. Pothier, 2019 U.S. App. LEXIS 9003 (1st Cir. Mar. 26, 2019)

– Thomas L. Root

Gun Plus Drugs Does Not Always Equal Enhancement – Update for April 1, 2019

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PILING ON NOT ALLOWED, 7TH CIRCUIT SAYS

It comes as little surprise to most federal defendants that after a guilty plea, the government and court Presentence Report writers let Guidelines sentencing enhancements explode like confetti. Once you’re guilty, the amount of proof needed to pump up your sentencing range appears to fall dramatically.

But the 7th Circuit reminded courts last week that however low the enhancement evidence bar may be, it is still greater than zero.

pilingon190401Alandous Briggs pled guilty to being a felon in possession after his parole officer found drugs and guns in his house. The presentence report said Al had committed a felony drug offense in connection with the gun possession, and proposed a 4-level enhancement under U.S.S.G. § 2K2.1(b)(6)(B). Al objected that the gun possession was unrelated to the drugs found in his home, but the court applied it anyway.

The 7th Circuit vacated the sentence. Observing that the district court’s findings consisted of nothing more than finding “an inference that the defendant may have been involved in some drug distribution… [but] at minimum, he was possessing drugs,” the Circuit said that the court was “resting its decision instead only on felony possession, to which Al had admitted.

The district never made any findings about how the coke possession was connected to the firearms. “The mere fact that guns and drugs are found near each other doesn’t establish a nexus between them,” the 7th said. “A court must say more to connect the two… Mere contemporaneous possession while another felony is being committed is not necessarily sufficient, and possessing a gun while engaged in the casual use of drugs might not give rise to the inference that the gun was possessed in connection with the drugs.”

United States v. Briggs, 2019 U.S. App. LEXIS 9131 (7th Cir. Mar. 27, 2019)

– Thomas L. Root

Let’s Sit This One Out… – Update for March 28, 2019

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TIME WAITS FOR NO ONE IN 2ND CIRCUIT

Rodshaun Black and his co-defendants sat in jail for 68 months awaiting trial on a Hobbs Act conspiracy. For almost three years of that time, the government delayed by dithering over whether to seek the death penalty. More time was wasted by the government losing critical evidence, and even more with a superseding indictment.

Rodshaun and his co-defendants continually complained about the delay. Finally, at the close of the trial (at which Rodshaun was acquitted of four counts and the jury hung on the other five), the district court threw out the rest of the case because Rod’s constitutional right to a speedy trial was violated.

Last week, the 2nd Circuit upheld the dismissal, rejecting the government’s whine that the district court should not have attributed 34 months’ delay to the government for its prolonged death‐penalty decision and that the district court should have held Rod responsible for more of the delay than it did. Applying the factors outlined in Barker v. Wingo, the Circuit said, “Today we hold for the third time in two years that criminal defendants’ rights to a speedy trial have been violated in the Western District of New York… Defendants‐Appellees endured an extraordinary sixty‐eight‐month delay, suffered anxiety occasioned by the government’s nearly three‐year deliberation over whether to argue that they should be sentenced to death, and repeatedly requested a speedy trial… Defendants‐Appellees’ rights to a speedy trial were violated.”

US v. Black, 2019 U.S. App. LEXIS 7847 (2nd Cir. Mar. 18, 2019)

– Thomas L. Root

Opening a Sentence Package – Update for March 27, 2019

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UNDOING A SENTENCE PACKAGE IS UP TO DISTRICT COURT

Jim Troiano was sentenced concurrently to 17 years on three counts, one of which was a felon-in-possession enhanced under the Armed Career Criminal Act. After the Supreme Court decision in Johnson v. United States, he got the ACCA sentence vacated, but the district court refused to resentence on the other two counts. Jim’s sentence remained at 17 years (plus seven more for an 18 USC 924(c) conviction).

gift190327Jim appealed, arguing that his sentence was a “package,” and the district court could not change the sentence on just one count without resentencing on all of the counts and giving him a lesser aggregate sentence. Last week, the 9th Circuit disagreed. It said in a resentencing, the decision to unbundle a sentencing package – that is, to conduct a full resentencing on all remaining counts of conviction when one or more counts of a multi-count conviction are undone – rests within the sound discretion of the district court.

Troiano v. United States, 2019 U.S. App. LEXIS 8596 (9th Cir. Mar. 22, 2019)

– Thomas L. Root

Will First Step Let the Holloway Black Swan Swim Again? – Update for March 26, 2019

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A REMARKABLE ORDER, A “HOLLOWAY” EASTER EGG

A fascinating order from Judge David Larimer in the Western District of New York is focusing attention on an overlooked section of the First Step Act.

hammer160509First, the order: thirteen years ago, Chad Marks took a drug count and two 18 USC 924(c) counts to trial. Had he pled guilty like his co-defendants, he would be home now. But he rolled the dice and lost, and Judge Larimer was forced by statute to hammer him with 40 years, a mandatory minimum of 10 for the drugs, 5 for the first 924(c) and 25 for the second 924(c). 

Over 13 years, the Judge said in his Order, Chad has gained a college degree and completed over 100 programs. Now Chad has asked the judge to ask the U.S. Attorney to agree to let the judge vacate one of the 924(c) convictions, which would cut Chad to 15 years and get him immediate release. The Judge’s Order, citing Chad’s “extraordinary accomplishments,” asks the Government to “carefully consider exercising his discretion to agree to an order vacating one of Marks’ two Section 924(c) convictions. This would eliminate the mandatory 25-year term that is now contrary to the present provisions of the statute. Congress has now recognized the injustice of ‘stacking’.”

blackswan170206You may remember the Holloway decision of a few years ago, where EDNY Judge Gleeson convinced the U.S. Attorney to consent to an otherwise unauthorized court order cutting an inmate’s sentence, because of the inmate’s prison accomplishments and the harshness of the mandatory minimums. I wrote about it at the time, referring to the decision as a “black swan” and calling out some hopemongers who were trying to fleece inmates of money to prepare their own “Holloway” motions. Holloway had a cold fusion problem: it was elegant, even beautiful, but it was not replicable. Instead, a Holloway motion would only work when the court and the U.S. Attorney agreed to ignore the strict procedural rules against granting the remedy the inmate sought.

Holloway was a grand conspiracy among the players – defendant, judge and prosecutor – to let the defendant out of prison. I praised its wisdom and creativity, even while lamenting that it would hardly work anywhere else in the nation, where jurists like Judge Gleeson, U.S. Attorneys like Loretta Lynch, and defendants like Francois Holloway were not in the same courtroom at the same time.

But First Step may have changed all of that, in a way Congress probably neither noticed or intended. Everyone knows that the Act changed compassionate release to let a prisoner take his or her request under 18 USC 3582(c)(1) to court if the Federal Bureau of Prisons either turns it down or (as happens more often) fails to act on it within 30 days. But what went unnoticed in all the talk about dying inmates is this: there is more than one way to get a sentence modified under 3582(c)(1).

easteregg190326In computer software and media, an Easter egg is an intentional inside joke, hidden message or image, or feature hidden in a program. The Easter egg in compassionate release is subsection 3582(c)(1)(A)(i) permits sentence reduction for any “extraordinary and compelling” reason, not just illness. Traditionally, inmates have been referred by the BOP for acts of heroism. I knew of one UNICOR worker referred under (c)(1)(A)(i) who save the life of his BOP staff supervisor when the man collapsed of a heart attack. But “compelling and extraordinary” has hardly ever been used, because the BOP had to propose it to the court, and the BOP did not care to do so.

That has changed. As Ohio State law professor Doug Berman noted last week in his Sentencing Law and Policy blog when writing about the Chad Marks’ case, “I [use] the term “extraordinary and compelling” in this post because I do not think the federal judge here has to rely on the U.S. Attorney to do justice in this case now that the First Step Act has changed the process around judicial consideration of sentence modifications under 18 USC 3582(c)(1)(A)(i)… [The] Act now provides that an inmate can bring a request to “modify a term of imprisonment” directly to a sentencing court (rather than needing a motion made by the Bureau of Prison) based on the claim that “extraordinary and compelling reasons warrant such a reduction.” This is what gets described often as the “compassionate release” provision of federal law, and most generally assume that it is only applicable to sick and dying prisoners. But, ever the textualist, I am eager to highlight to everyone that Congress only formally requires a judge to find “extraordinary and compelling reasons warrant such a reduction.” As I read this new Marks Order, I think Judge Larimer has already essentially made such a finding.”

falsehope170510I know of one inmate who already is using his case history and BOP record in asking a court for a (c)(1)(A)(i) sentence modification. I do not think, generally speaking, such a motion will work unless the judge already is unhappy with the length of a mandatory sentence. But that will hardly stop the shadier “paralegal” shops from trying to sell people Holloway motions upgraded to (c)(1)(A)(i)s.

Order, United States v. Marks, Case No. 03-CR-6033 (WDNY Mar 14, 2019)

Sentencing Law and Policy, Federal judge pens extraordinary and compelling order requesting US Attorney to vacate old stacked 924(c) conviction in extraordinary and compelling case (Mar 19)

– Thomas L. Root

Supreme Court Lets Wheeler Stand, Whiffs on Chance to Resolve Circuit Split – Update for March 25, 2019

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SUPREME COURT REFUSES TO WADE INTO 2241 DEBATE

Last Monday’s Supreme Court orders list carried good news for  people waiting on a certiorari decision on the 4th Circuit’s United States v. Wheeler case.  But for those who would like to see the 2255(e) debate put to bed, the day brought nothing but bad news.

deniedcertB170925Everyone convicted of a federal crime has the right to petition for a writ of habeas corpus, a procedure intended to protect defendants from denial of their constitutional rights. Traditional habeas corpus is governed by a statute, 28 USC § 2241. However, Congress has directed federal defendants seeking to challenge their convictions or sentences to a special habeas corpus statute, 28 USC § 2255, which spells out what kind of showing must be made in order to obtain relief, and when and how that showing is permitted. To prevent abuse of the 2255 procedure, the law prevents any defendant from filing more than one such motion except under the most restricted of circumstances.

But not all circumstances can be foreseen. For that reason, Congress included 28 USC § 2255(e), which provides that a federal defendant may use the classic route, 28 USC § 2241, when it  “appears that the remedy by [2255] motion is inadequate or ineffective to test the legality of his detention.” This subsection has become known as the “savings clause.” 

gunknot181009A number of years ago, Gerald Wheeler was convicted of federal drug trafficking and gun charges. His drug and gun possession sentences were increased dramatically because he had a prior North Carolina drug felony.


Except, due to a unique sentencing law on North Carolina’s books at the time, Gerry’s state drug conviction really was not a felony, because the maximum sentence he could have gotten was undera year. The 4th Circuit had gotten that wrong in hundreds of cases, but finally set it right in 2011 with United States v. Simmons, which held that hundreds of state convictions like Gerry’s really weren’t felonies after all. But Simmons came too late for Gerry, whose 2255 motion had already been heard and denied.  Believing that the “safety clause” was intended for this kind of situation, Gerry filed a traditional § 2241 habeas corpus petition. Up to this point, the “savings clause” had been held to apply only where a change in statutory interpretation (like Simmons) resulted in the petitioner being actually innocent of a criminal offense. Gerry was not claiming that. Instead, he said he was actually innocent of the sentence, not of the underlying conviction. The district court said that kind of actual innocence didn’t count, and denied Gerry’s motion.

In a big victory for defendants, the 4th Circuit reversed, holding for the first time that the § 2255(e) savings clause could be invoked if at the time a defendant was sentenced, precedent made the sentence legal, but after the prisoner’s appeal and § 2255 motion, the settled substantive law changed and was held to be retroactive.

The government did not much like the 4th Circuit’s decision, and thus petitioned the Supreme Court to review Wheeler. Typically, SCOTUS takes government requests for certiorari very seriously, but last Monday the Court refused the government’s request.

safetyvalve190325Wheeler is at last final, which is great news for people who happen to be locked up in prisons located in the 4th Circuit. If you are in other circuits, your prospects may be dimmer. If you’re housed in the 10th or 11th Circuit – neither of which believes that the § 2255(e) “savings clause” has any meaning whatsoever – you are just plain out of luck.

The not-so-great news: Three other requests for review of the “safety clause” were also denied last week, Lewis v. English, Delancy v. Pastrana, and Dusenbery v. Holt. Lewis (10th Cir.) and Delancy (11th Cir.) argued that those Circuits are wrong, and a prisoner should be allowed to file a § 2241 petition to raise arguments that were foreclosed by binding circuit precedent at the time of his or her original § 2255 motion, but that are meritorious in light of a subsequent decision overturning that precedent. Dusenbery (3rd Cir.) argued that a § 2241 petition filed under the 2255(e) savings clause should be able to raise actual innocence of sentence (like Wheeler successfully did) as well as innocence of conviction.

All of the petitions were relisted (reconsidered by the Justices) multiple times before being denied. The website SCOTUSBlog noted of the Wheeler denial that “it’s somewhat unexpected for the court to reject a government petition on an obviously recurring issue. But the government in Wheeler and the petitioner in Lewis each claimed that their case was the only good vehicle, and apparently they succeeded in persuading the court that all the vehicles were bad.”

The Supreme Court looks for a case with facts and arguments that make it well suited for a decision that will sweep broadly. It apparently decided that none of the four met that standard. The issue will continue to arise, and I think the Court will eventually take it up. But for now, people needing the relief that only a § 2241 petition can provide will be victims of geography.

United States v. Wheeler, Case No. 18-420 (cert. denied Mar 18)

Lewis v. English, Case No. 18-292 (cert. denied Mar 18)

Delancy v. Pastrana, Case No. 18-5772 (cert. denied Mar 18)

Dusenbery v. Holt, Case No. 18-5781 (cert. denied Mar 18)

SCOTUSBlog.com, Relist Watch (Mar. 20)

– Thomas L. Root