Grammar Gets the ‘Gold’ at Supreme Court – Updates for June 27, 2025

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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 GOLD MEDAL FOR LENITY?

Is “lenity” the word that dare not be uttered? You might think so after yesterday’s Supreme Court decision in Hewitt v. United States.

The issue seems straightforward enough. Among the many changes made by the 2018 First Step Act was a long-overdue modification of 18 USC § 924(c), the penalty statute that mandates a consecutive minimum sentence for carrying a gun during a drug trafficking crime or crime of violence. Before First Step, the initial § 924(c) offense carried a mandatory sentence of at least five years, but every subsequent § 924(c) offense was punished by a 25-year term. Lousy drafting of the statute led to courts concluding that if you sold drugs while carrying a gun on Monday, you’d get time for the drug crime and an extra five years for the gun. If you sold some more drugs the next day while still carrying the gun, you’d probably get no more time for the drugs, but you would get a mandatory 25 years on top of Monday’s five-year term for a second § 924(c) crime, an outcome known as “stacking.”

It wasn’t difficult to figure. A hard-working street corner drug dealer plying his trade for a five-day work week, with a gun in his pocket the whole time, would run up a sentence of maybe 51 months for the drugs he sold but a whopping mandatory consecutive sentence of 105 years for five days of § 924(c) counts.

Congress never meant for this to happen. What it intended was that if you violated § 924(c) with a pistol in your pocket, you’d get an extra five years for carrying the gun (seven years if you “brandished” it). If you did your time and then were stupid enough to pack heat again, you would get a 25-year consecutive sentence. And why not? If five or seven years hadn’t taught you a lesson, you really needed an attitude adjustment.

Congress finally got around to fixing it in the First Step Act, changing § 924(c)(1)(C) to require that you actually be convicted of a § 924(c) offense before being hammered with the 25-year term for a second § 924(c) offense. You could still get stacked five-year terms for a week’s worth of armed drug dealing (25 years total for gun-toting from Monday through Friday), but you would not get the extra 80 years for your poor decision-making.

The usual horse-trading needed to get the Senate to pass First Step in the 11th hours of the 115th Congress resulted in a deal embodied in § 403(b) of the Act that the changes in § 924(c) would apply to “any offense that was committed before the date of enactment of this Act, if a sentence for the offense has not been imposed as of such date of enactment.”

Back in 2007, a gang dubbed the “Scarecrow Bandits” began a crime spree of bank robberies in the Dallas-Fort Worth area that totaled 20 heists. Dubbed the “Scarecrow Bandits” due to the clothing and face coverings they wore during their initial offenses, the gang was finally taken down by 11 months of cell tower analytics that sifted a haystack of data to find phones that had been pinging towers in the vicinity of each target bank only at times around the robbery. When the gang prepared to hit bank number 21 in Garland, Texas, the police arrested them.

Thanks to the § 924(c) in force at the time, the government hung 330 years on the perpetrators. The passage of the First Step Act didn’t help, because the robbers had long since been sentenced. However, after the Supreme Court held in 2019 that the “crime of violence” definition the Government routinely used to support some § 924(c) convictions was unconstitutionally vague, several of the Hewitt defendants successfully petitioned to have their sentences set aside. When they were resentenced, they argued that because the new sentences were being imposed after First Step passed, they were entitled to the benefit of having their subsequent § 924(c) sentences cut from 25 years apiece to seven years apiece or less.

The 5th Circuit (joining the 6th but in opposition to the 3rd and 9th), ruled that § 403(b) excluded any defendant who was sentenced prior to the enactment date of the First Step Act, even if his sentence was later vacated. The 5th argued that First Step applies only “if a sentence for the offense has not been imposed as of” the Act’s enactment date. Even if the Scarecrow sentences were later vacated, they still had “been imposed” upon that defendant prior to the Act “as a matter of historical fact.”

Justice Ketanji Brown Jackson, writing for the 5-4 majority, reminded everyone why all of that tedious junior high school English grammar was consequential after all. She explained that the operative phrase of § 403(b) is “not written in the past-perfect tense, excluding anyone upon whom a sentence “had” been imposed. Rather, Congress employed the present-perfect tense—thereby requiring evaluation of whether “a sentence . . . has . . . been imposed” upon the defendant.” Citing sources including the Chicago Manual of Style and The Cambridge Grammar of the English Language, she argued “the primary focus is on the present” while “the past maintains ‘current relevance.’”

Justice Brown offers this example:

Suppose the U. S. Olympic Committee enacted a rule stating that athletes may call themselves Olympic champions if a gold medal “has been awarded” to them. Pursuant to that rule, a U. S. sprinter who took first place in the 2016 Summer Olympics’ 100-meter finals could validly proclaim—today—that she is “an Olympic champion.” The existence of her win as a historical event triggers the rule’s proper application, because it gives rise to the inference that the athlete remains an Olympic gold medalist at present, thereby justifying her continued use of the “Olympic champion” title…

But now imagine that the Olympic Committee stripped this sprinter of her medal after discovering that she used performance-enhancing drugs during the competition. Can that athlete, under the rule, still call herself an Olympic champion? The answer is no. Yes, she had been awarded such a medal, but it was revoked; the fact that she stood on the podium and was declared the winner in 2016 is inapposite for purposes of establishing whether she qualifies for Olympic-champion bragging rights under the rule today.

When used in this way, the present-perfect tense conveys to a listener that the event in question continues to be true or valid.

Her point was that a sentence once imposed but later vacated is not a sentence at all because it does not remain valid. The law thus denies sentencing relief to only those pre-First Step Act sentences with “continued legal validity, not those that have been vacated,” Jackson wrote.

The decision produced a strong dissent from Justice Samuel Alito Jr., who accused the majority of “disfigur[ing]” the law to “march in the parade of sentencing reform… Animating the court’s atextual interpretation is a thinly veiled desire to march in the parade of sentencing reform. But our role is to interpret the statute before us, not overhaul criminal sentencing,” he wrote in a dissent joined by Justices Clarence Thomas, Brett Kavanaugh and Amy Coney Barrett.

Writing his Sentencing Law and Policy blog, Ohio State University law professor Douglas Berman was as disappointed in the decision as one who supported the result could be. He wrote that “Justice Gorsuch has extolled the rule of lenity in a number of notable recent statutory interpretation cases (e.g., Wooden; Pulsifer), stressing that “lenity has played an important role in realizing a distinctly American version of the rule of law.” The issue in Hewitt may not be a “classic” rule of lenity case, but it clearly is one in which traditional tools of statutory interpretation yield no clear answer and a defendant’s liberty is at stake… [I]t seems notable that this word gets not a single mention in the Hewitt opinions… These opinions function to suggest there is more legislative meaning and purpose in verb choice than in how to redefine just and fair punishments in the enactment of the First Step Act.”

Hewitt v. United States, Case Nos. 23-1002, 23-1150, 2025 U.S. LEXIS 2494 (June 26, 2025)

I2 Group, Catching the Scarecrow Bandits

United States v. Davis, 588 U.S. 445 (2019)

Law.com, Split Supreme Court Allows Lighter Sentences for Bank Robbers Dubbed ‘Scarecrow Bandits’ (June 26, 2025)

Courthouse News Service, Justices side with bank robbers seeking new sentences under reform law (June 26, 2025)

Sentencing Law and Policy, Where are concerns for liberty and lenity and broader constitutional values in Hewitt? (June 26, 2025)

– Thomas L. Root

Supreme Court Gives PLRA Prisoner a Procedural Win – Update for June 26, 2025

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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.

PLRA EXHAUSTION MAY BE A JURY QUESTION, SCOTUS RULES

Prisoners know that virtually any lawsuit brought against the Federal Bureau of Prisons other than a habeas corpus action is subject to the procedural straitjacket of the Prison Litigation Reform Act. The PLRA, among other things, makes exhaustion of all available administrative remedies a jurisdictional requirement, meaning courts cannot waive the requirement because it is futile (which it almost always is) or inconvenient (which it invariably is).

But what happens when a prison refuses to give the inmate access to the remedy system?

The Supreme Court last week sided with Michigan state prisoner Kyle Richards, holding that a jury—not a judge—must consider his claim that a corrections officer destroyed his sexual harassment complaints, making it impossible for Kyle to use the prison’s remedy process.

Exhaustion questions are usually decided by a judge. But here, the high court ruled, a jury must decide whether the CO’s action made the remedy process “unavailable,” because that question is bound up with the merits of Kyle’s claim.

Kyle sued the CO for violating his constitutional rights, including his First Amendment right to file grievances. The CO responded that Kyle had failed to exhaust available grievance procedures as required by the PLRA. “The parties agree that the exhaustion and First Amendment issues are intertwined, because both depend on whether [the CO] did in fact destroy Richards’s grievances and retaliate against him… [T]he usual practice of the federal courts in cases of intertwinement is to send common issues to the jury. Because nothing in the PLRA suggests Congress intended to depart from that practice here, we hold that parties are entitled to a jury trial on PLRA exhaustion when that issue is intertwined with the merits of a claim protected by the Seventh Amendment.”

“The usual federal court practice in cases of intertwinement is to send common issues to the jury, and nothing in the PLRA suggests Congress intended to depart from that practice,” the majority said.

Where a prisoner is unable to exhaust remedies (a fairly common occurrence, not so much due to inmate sloth as it is to unduly restrictive procedures and deadlines imposed by the prison administration), the decision suggests that a canny litigation strategy may be to frame the effective denial of the grievance procedure as a constitutional violation (where such a claim can colorably be made). Any complaint that gets the PLRA to a jury rather than to a summary dismissal increases the gravitas of the lawsuit and the odds that the defendants will seek a settlement.

The PLRA is notorious for having tilted the playing favor strongly in favor of the prison administration.  Any decision that evens up the procedural pitch, even a bit, is welcome.

Perttu v. Richards, Case No. 23-1324, 2025 U.S. LEXIS 2380 (June 18, 2025)

– Thomas L. Root

Big White Bear Banished… Or Is He? – Update for June 24, 2025

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‘DON’T THINK ABOUT THE BIG WHITE BEAR’ IN SENTENCING SUPERVISED RELEASE VIOLATIONS, SCOTUS TELLS JUDGES

When a federal prisoner who is out of prison but serving a term of supervised release (a version of parole after a prison term is served) gets violated for breaching one of the many supervised release conditions, the Court may impose some more time in prison. When doing so, the supervised release statute (18 USC § 3583(e)) directs the Court to consider most of the sentencing factors in the Guidelines.

But not all. Conspicuously missing from the list of permissible factors listed in § 3583(e) is § 3553(a)(2)(A), which directs a district court to consider “the need for the sentence imposed… to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense.”

Edgardo Esteras pled guilty to conspiring to distribute heroin. The district court sentenced him to 12 months in prison followed by a 6-year term of supervised release. He did his time and began his supervised release. Eventually, he was arrested and charged with domestic violence and other crimes.

The district court revoked Eddie’s supervised release and ordered 24 months of reimprisonment, explaining that his earlier sentence had been “rather lenient” and that his revocation sentence must “promote respect for the law,” a consideration enumerated in 18 USC § 3553(a)(2)(A) but not authorized to be considered in fashioning a supervised release revocation sentence by § 3583(e).

The 6th Circuit affirmed the sentence, holding that a district court may consider § 3553(a)(2)(A) when revoking supervised release even though it is not one of the listed factors to be considered in 18 USC § 3583(e).

Legend has it that as a boy, Russian author Leo Tolstoy and his brother formed a club. To be initiated, the aspirant was required to stand in a corner for five minutes and not think about a big white bear. Last week, the Supreme Court told district courts to ignore the bear when sentencing supervised release violations.

Writing for the 7-2- majority, Justice Barrett reversed the 6th Circuit in what seemed to be an easy lift for the Court. The decision applied the well-established canon of statutory interpretation “expressio unius est exclusio alterius” (expressing one item of an associated group excludes another item not mentioned). In other words, where a statute provides a list of what can or cannot be considered – the classic example being Section 61 of the Internal Revenue Code,  which lists ten examples of what constitutes “gross income” – that detailed list implicitly excludes anything not listed.

Likewise, the Supreme Court held that where Congress provided in § 3583(e) that the Court should consider a list of eight of the ten sentencing factors from 18 USC § 3553(a) when sentencing on a supervised release violation, “[t]he natural implication is that Congress did not intend courts to consider the other two factors…” Justice Barrett wrote that “Congress’s decision to enumerate most of the sentencing factors while omitting § 3553(a)(2)(A) raises a strong inference that courts may not consider that factor when deciding whether to revoke a term of supervised release. This inference is consistent with both the statutory structure and the role that supervised release plays in the sentencing process.”

But such a Pyrrhic victory! Any judge worth a robe and wig can easily figure out how to throttle a mutt like Eddie — who unquestionably got a real break in his original heroin sentence — with a maxxed out supervised release sentence that will withstand judicial review. The supervised release sentence may still be based on the “nature and circumstances of the offense and the history and characteristics of the defendant” (§ 3553(a)(1)), on the need “to afford adequate deterrence to criminal conduct” (§ 3553(a)(2)(B)) and the need “to protect the public from further crimes of the defendant” (§ 3553((a)(2)(C)). The judge can describe the offender as having the characteristic of “not learning from his mistakes” or as needing a long supervised release sentence because he has not yet been deterred from criminal conduct or as needing to be locked up to protect the public.

Different spirits summoned, but the same result. As long as no one mentions the big white bear, a canny sentencing judge can think about the bruin all he or she wants to and sentence accordingly.

As for Eddie, he finished his supervised release sentence in October 2024, so the Supreme Court decision does little for him.  But maybe it will have some beneficial effect. It seems Edgardo was arrested on a fresh supervised release violation last month and is currently held by the Marshal Service. He will appear in front of Judge Benita Y. Pearson (N.D. Ohio) for a hearing in three weeks.

We’ll see if the bear comes up during that hearing.

Esteras v. United States, Case No. 23-7483, 2025 U.S. LEXIS 2382 (Jun 20, 2025)

– Thomas L. Root

More About the Cheese – Update for June 23, 2025

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THE DEVIL’S IN THE DETAILS

Last Friday, I wrote about the Federal Bureau of Prisons’ latest pronouncements on how it would implement the “awards” portion of the First Step Act time credits (FTCs) program.

You recall that federal prisoners may earn FTCs for successful completion of evidence-based recidivism reduction programs (EBRRs), classes and vocational programs and therapy shown to reduce their likelihood to again fall into crime after release.

By and large, the EBRR program is good stuff. The Attorney General’s report last June reported that recidivism among people who had completed recidivism assessment and programming was coming in substantially lower than even the rosy assessments made right after First Step passed. (Note: We should be seeing the AG’s June 2025 update any day now).

To entice inmates to earn FTCs, the First Step Act provided that the credits could reduce the sentence of an eligible prisoner by up to a year, and FTCs left after the sentence reduction could be used for more halfway house and home confinement. But the BOP has been all over the map as to how to implement the awards, leaving a lot of prisoners and their families feeling puzzled, frustrated or betrayed.

The other factor in play is the BOP’s authority under the Second Chance Act of 2007 to place an inmate in a halfway house for up to 12 months at the end of his or her term, with 10% of his or her sentence (up to six months) of the final term being served on home confinement.

Last week, I only had the BOP’s press release to work from, but over the weekend, I obtained a copy of the new memo – entitled “Use of Home Confinement As A Release Option.” The 4-page memorandum from BOP Director William K. Marshall III to wardens suggests a bold, new pro-release mindset at the BOP, but – as with everything in this world – the devil’s in the details.

The memo’s highlights:

• The BOP will treat its authorizations under the First Step Act and Second Chance Act as cumulative. BOP staff shall and apply those in sequence to maximize prerelease time in community custody, including home confinement.

• Halfway house “bed availability/capacity shall not be a barrier to home confinement when an individual is statutorily eligible and appropriate for such placement.”

• If a First Step Act or Second Chance Act eligible prisoner does not require the services of a halfway house, the inmate “shall be referred directly from an institution to home confinement.” Halfway house “placement should be prioritized for those in our custody with the most need for services available at a [halfway house].”

• Referrals shall proceed with the understanding that so long as prisoners meet First Step Act and Second Chance Act eligibility requirements, “they shall receive the forecasted credits and ordinarily should not experience delays in prerelease placement based on administrative timing, presumed [halfway house] capacity limits or placement constraints, or pending credit accrual.”

• Under the Second Chance Act, inmates may be placed in prerelease custody for a period of up to 12 months (halfway house) or 6 months or 10 pct of their sentence (home confinement), whichever is less. “The Second Chance Act Conditional Placement Date reflects the window under 18 USC § 3624(c) —up to 12 months (halfway house) or 6 month or 10% of the sentence (home confinement)—for which the individual is expected to qualify, subject to a five-factor review. “There is no restriction concerning how many FTCs may be applied toward home confinement. For individuals only eligible under the Second Chance Act, referrals must comply with 18 USC § 3624(c), including a five-factor review and documentation of eligibility based on sentence length (12 months [halfway house] or 6 month or 10% (home confinement), whichever is less).”

• For prisoners “who have earned less than 365 days of FTCs, staff must also consider adding up to an additional 12 months of prerelease time under the Second Chance Act, based on the five-factor review.”

• Home confinement candidates must be able to show a verified and stable home environment that supports monitoring, appropriate supervision, and safe community reentry and integration, and that they pose no public safety or placement disqualification. Employment history shall not be required. For individuals at or near working age, potential for employment may be considered positively, but is not mandatory.

Note what has not changed: Second Chance Act placement is still based on the BOP’s “five-factor” review, found in 18 USC § 3621(b):

(1) the resources of the halfway house;

(2) the “nature and circumstances of the offense;”

(3) the history and characteristics of the prisoner;

(4) any statement by the court that imposed the sentence about “the purposes for which the sentence to imprisonment was determined to be warranted; or recommending a type of penal or correctional facility as appropriate;” and

(5) any pertinent Sentencing Commission policy statement.

The memo and the “five factor” review contain enough wiggle room to enable the BOP to justify disqualifying Mother Teresa from halfway house or home confinement placement. Home confinement will be allowed for “qualified individuals,” but the memo directs that “placement decisions should prioritize public safety and the overall stability of the release plan.” Second Chance Act halfway house time is subject to review that is broad enough to let the BOP cut or take away halfway house on the basis of the crime or what it thinks of the prisoner.

Those persons who recall that in the late months of CARES Act home confinement placement, the BOP began asking inmates’ prosecutors for their views on sending a prisoner home, may have good cause question what may happen in the latest opaque review process.

BOP, Memorandum on Use of Home Confinement as a Release Option (June 17, 2025)

BOP, Bureau of Prisons Issues Directive to Fully Implement First Step Act and Second Chance Act (June 17, 2025)

– Thomas L. Root

Enticing But Evanescent BOP Cheese – Update for June 20, 2025

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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 DANGLES THE FIRST STEP CHEESE AGAIN

So, let’s see… the Federal Bureau of Prisons first proposed that a prisoner would have to spend eight hours in one of its program classrooms in order to earn one day of First Step Act time credit (FTC) to reduce her sentence or get an extra day of halfway house. Then it reversed course, holding that an inmate would receive one day of FTC credit for every day she was enrolled in the course.

Then the BOP said that when a prisoner’s FTC credits equaled the number of days left his sentence, he would be sent to a halfway house. But wait, that was only when the halfway house finally said he could come, however long that delay might be.

The BOP said that a prisoner was entitled to as much halfway house or home confinement time as she could earn in FTCs, and on top of that, she could get up to a full year in halfway house under the Second Chance Act. But then the agency said that no one could get more than 60 days in halfway house under the SCA, no matter what the law said. But then, the BOP said that was wrong, and prisoners could get a full year under the SCA. After that, the BOP decided that any prisoner with a full year’s worth of FTCs was ineligible to get any SCA time in a halfway house.

Got it?

Not yet, because in its latest policy reversal/about face/ tweak, the BOP this week decided that its last pronouncement was “inoperative,” as Nixon White House spokesman Ron Ziegler famously said. Now, BOP Director William K. Marshall III has announced “the dawn of a new era,” a restoration of “integrity and fiscal responsibility to the federal prison system.” This of course is a tacit admission that integrity and fiscal responsibility have been wanting at the BOP, akin to the emperor acknowledging that yes, indeed, he is naked as a jaybird.

Marshall said in a press release that henceforth

• FTCs and SCA eligibility will be treated as cumulative and stackable, “allowing qualified individuals to serve meaningful portions of their sentences in home confinement when appropriate.”

• The BOP’s Conditional Placement Dates — “based on projected credit accrual and statutory timelines — will drive timely referrals, not bureaucratic inertia.”

• Stable housing and “community reintegration readiness, not past employment,” will guide placement decisions.

• Halfway house bed capacity will not be a barrier to home confinement placement when a prisoner is statutorily eligible and “appropriate for such placement.”

The press release quotes Marshall as saying the new policies “mark[] a bold shift from years of inaction toward a policy rooted in public safety, fiscal responsibility, and second chances. By empowering the agency to release more people who are ready to return to society, we not only save taxpayer dollars, we strengthen families, ease overcrowding, and build safer communities.”

The latest policy flip-flop comes on the heels of Marshall’s appointment, the week before, that BOP veteran Richard Stover has been appointed “to serve in furthering the implementation of the First Step Act.”

That announcement did not specify Stover’s title, place in the chain of command, or precise duties. Nevertheless, in the six plus years since passage of First Step, the BOP has not designated any management-level employee as being responsible for BOP compliance with the law. Marshall said that appointment of Stover to oversee First Step implementation and Josh Smith as Deputy Director “reflect a critical investment in strengthening our leadership infrastructure to better support staff, improve operations, and fully implement the First Step Act—the cornerstone of our path to safer facilities and stronger outcomes.”

Stover has 28 years with the Bureau, starting as a case manager, rising to Warden and ultimately serving as a Senior Deputy Assistant Director. Most recently, Stover ran the Designation and Sentence Computation Center in Grand Prairie. Marshall said in his announcement of the appointment that Stover’s “work developing the First Step Act Time Credits policy and his leadership at institutions like FCI Danbury demonstrate his deep expertise in executing complex reforms with clarity and precision.”

All of this is great stuff, but like Charlie Brown with Lucy holding the football, we’ve been here before. It has always been baffling to me that the BOP, chronically broke and understaffed, wasn’t hustling people with accumulated FTCs into inexpensive home confinement as quickly as possible under 18 USC 3624(g)(2). Under the SCA, the BOP can only place a prisoner in home confinement for 10% of an inmate’s sentence (up to six months maximum). But 100% of a prisoner’s FTCs can be used for home confinement.

Skeptics (and heaven knows I am one) note that even the press release contains just enough wiggle room to let the BOP take away everything it has given. Home confinement will be allowed for “qualified individuals,” but who is “qualified” and under what criteria (and decided by whom) is opaque. After all, prisoners must be “appropriate for such placement,” whatever that means.

For that matter, promising that statutory eligibility “will drive timely referrals, not bureaucratic inertia,” has a chicken-in-every-pot flavor to it. Just like no one asked where all those chickens were going to come from, the idea that people are going to go to halfway houses that won’t accept them has a delusional quality to it that matches its lofty blandishment.

Walter Pavlo, writing in Forbes, observes:

The memorandum is going to be well received by inmates and their families. However, the BOP has a history of slowly implementing programs that favor inmates but quickly adopting restrictions that keep them in prison longer. The Trump administration continues to be one that looks for results among those appointed to serve and it will be up to BOP leadership to deliver on this one as the directive is clear. It is the implementation of this directive that will be the next challenge.

Challenge, indeed. My take on it is a little less diplomatic: The cheese has been dangled in front of the inmate mice again. Let’s see how soon it is moved this time.

BOP, Bureau of Prisons Issues Directive to Fully Implement First Step Act and Second Chance Act (June 17, 2025)

Forbes, Bureau of Prisons Retracts Rule, Truly Expands Halfway Houses (June 17, 2025)

BOP, Message from the Director (June 5, 2025)

– Thomas L. Root

Captain Obvious at the Supreme Court – Update for June 19, 2025

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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.

NOTICE OF APPEAL – NICE, BUT YOU DON’T HAVE TO FILE IT TWICE

The Supreme Court a week ago reinstated a suit filed by a federal inmate that alleged that he was wrongfully kept in the USP Hazleton Special Housing Unit (a 23-hour-a-day lockdown that is often solitary confinement) for nearly two years.

In an 8-1 decision, the Court ruled that when Donte Parrish missed his deadline to file a notice of appeal after the district court threw out his case, he didn’t need to file a second notice of appeal after the trial court reopened it.

It should have been obvious. Alas, it took eight Supreme Court justices to say it. Yet, as Slate put it, “In this country, law does not always extinguish a claim with force. Sometimes it does so with paperwork.”

In 2009, Donte was placed in the SHU for 23 months after being found guilty of a -100 series incident report. After an appeal, prison officials expunged the shot, conceding that he hadn’t committed the infraction. Danny then sued seeking money damages for wrongful confinement in the SHU all those months.

The district court entered an order dismissing the case on March 23, 2020. The very next day (well before he would have gotten a copy of the dismissal order in the mail), Donte got shipped. The dismissal order didn’t catch up to him for 90 days, by which time he was well past the 60-day period for filing a notice of appeal provided for by Rule 4(a)(1)(B)(ii) of the Federal Rules of Appellate Procedure.

On July 8, Donte sent a letter to the district court explaining the delay and attaching a notice of appeal. The district court interpreted his letter as a motion to reopen the time to file an appeal and granted it.

However, after the reopening of the time to file, Donte – who thought his prior notice of appeal was all that was required to perfect his right to go to the 4th Circuit – did not file a new notice of appeal. The Circuit ruled that when the district court reopened the time to appeal, Donte should have filed another notice that he intended to appeal. Because he did not, the Circuit ruled, it lacked jurisdiction to review his case.

Last Thursday, the Supreme Court reversed. Writing for the Court, Justice Sonia Sotomayor said the text of the statute governing appeals “makes clear” that if a litigant files a notice of appeal after the reopened period has closed, it is late. But the law does not prevent an appeals court from hearing a case where – as here – the notice of appeal is filed early.

That’s what Donte really did, Justice Sotomayor reasoned. He filed a notice of appeal late – after the first period to do so had closed – but when the district court reopened the filing period (which it may do under 28 USC § 2107 and Fed.R.App.P. 4(a)(5)), what had been filed late could do double duty as a notice of appeal that was filed early.

Justice Sotomayor wrote:

This Court has long emphasized that “‘the purpose of pleading is to facilitate a proper decision on the merits.’” Accordingly, “imperfections  in noticing an appeal should not be fatal where no genuine doubt exists about who is appealing, from what judgment, to which appellate court.

Even the government conceded that “it was perfectly clear after Dan’s first notice that he intended to appeal his case’s dismissal. Sending another notice would amount to nothing more than ‘empty paper shuffling.’”

Captain Obvious, striking down needless elevation of form over substance.

Donte’s lawyer said that the ruling is important for “incarcerated pro se litigants facing mail delays and other obstacles in attempting to litigate their cases from behind bars. Thanks to the Court’s decision, those litigants won’t be penalized for filing a notice of appeal before the appeal period is reopened.”

Parrish v. United States, Case No. 24-275, 2025 U.S. LEXIS 2280, 2025 LX 193678 (June 12, 2025)

Slate, A Criminal Defendant’s Case So Messed Up It United Clarence Thomas and KBJ (June 16)

– Thomas L. Root

Collateral Attack Amendments: That Which You Would Do, Do Quickly – Update for June 17, 2025

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2254/2255 AMENDMENT IS TOO LITTLE, TOO LATE

Danny Rivers was convicted in Texas state court of continuous sexual abuse of a child. After unsuccessfully seeking direct appeal and state habeas relief, Danny filed his first federal habeas corpus petition under 28 USC § 2254 (which permits the filing of a post-conviction habeas corpus motion in federal court by state prisoners who contend their convictions or sentences are unconstitutional).

The § 2254 petition is essentially a 28 USC § 2255 petition for state prisoners, but the rules governing it are close to the same for § 2255 petitions. Hence our interest…

The District Court denied Danny’s § 2254 petition in September 2018, sending him to the 5th Circuit. There, Dan got a certificate of appealability authorizing him to pursue his claim that his trial lawyer had been constitutionally ineffective in representing him.

While his appeal was pending, Danny obtained his trial counsel’s client file, which contained an exculpatory state investigator’s report he had never seen. After the 5th Circuit denied his request to add the report to the appeal record, Dan filed a second § 2254 petition in the District Court based on newly discovered evidence.

Ever since Congress passed the Antiterrorism and Effective Death Penalty Act of 1996, a prisoner’s right to file a second § 2254 or § 2255 has been severle limited. A so-called second-or-successive petition is permitted by 28 USC § 2244 only where there has been a change in constitutional law announced by the Supreme Court or new evidence that the prisoner could not have discovered before, and either event necessarily meant that no jury would have convicted the defendant because of the change in the law or exculpatory facts.

The District Court classified Dan’s second § 2254 motion as a second-or-successive habeas application under 28 USC § 2244(b) and transferred it to the 5th Circuit for authorization to file. Dan appealed, but the 5th held that the fact that his first petition was still on appeal did not permit him to end-run § 2244’s limitations on the filing of second-or-successive petitions.

Time was that we all thought you could amend a pending § 2254 or § 2255 petition even while the appeal was pending. No more, SCOTUS said last Thursday.

Writing for a unanimous court, Justice Ketanji Brown Jackson said, “Incarcerated individuals who seek to challenge their imprisonment through a federal habeas petition are generally afforded one opportunity to do so… Before a federal court can address a petitioner’s second or successive federal habeas filing on the merits, the incarcerated filer must clear strict procedural hurdles that the Antiterrorism and Effective Death Penalty Act of 1996 erects… We hold that, in general, once the district court has entered its judgment with respect to the first habeas petition, a second-in-time application qualifies as “second or successive”… triggering the requirements of 2244(b), when an earlier filed petition has been decided on the merits and a judgment exists.”

Rivers v. Guerrero, Case No. 23-1345, 2025 U.S. LEXIS 2276, 2025 LX 193063 (June 12, 2025)

– Thomas L. Root

Class Action FSA Credit Lawsuit Against the BOP Case Dismissed – Update for June 16, 2025

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DC COURT DISMISSES CHALLENGE TO BOP FSA CREDIT HALFWAY HOUSE PLACEMENT

You may recall that last December, the Criminal Law Reform Project, ACLU and mega law firm Jenner & Block sued the Bureau of Prisons for denying prisoners placement in halfway house or home confinement for the full term earned by their FSA time credits (FTCs).

Last week, the case died an ignominious death.

The case sought to certify a class action – the class being defined as anyone who now or in the future would be eligible to use FTCs for prerelease custody – to win a judicial holding that BOP rules sending a prisoner to halfway house only when the halfway house said it had space available violated 18 USC §§ 3624(g)(1) and (2). That statute says that when a prisoner has earned FTCs “in an amount that is equal to the remainder of the prisoner’s imposed term of imprisonment… [he or she] shall be placed in prerelease custody.” (Emphasis is mine).

BOP rules and policies, however, let the agency delay placement until space is available at a preferred halfway house, no matter how long that might be.

The suit argued that the BOP’s rules and policies violated 5 USC § 706(1) (contending that the BOP’s application of FTCs is “unlawfully held or unreasonably delayed”) and § 706(2) (the BOP’s rule on application of FTCs is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law”). In its ruling, the U.S. District Court for the District of Columbia held that the plaintiffs could not justify establishing a class for litigating the 706(1) claim, because whether placing an FTC inmate in halfway house was “unreasonably delayed” past the eligibility date depended on the length of the delay and reasons for it, both questions that were individual to the inmate in question.

The District Judge held that a class action had been justified on the § 706(2) “arbitrary, capricious, an abuse of discretion” question, but the Court nonetheless granted the BOP’s motion to dismiss the count. The prisoners’ suit argued that § 3624(g)’s language that eligible prisoners “shall be placed in prerelease custody” means that the BOP must place them in halfway house as soon as they are eligible. But the Court disagreed. It held that the prisoners’

“shall-means-shall” argument overlooks that § 3632(d)(4)(C) does not specify when a prisoner must be transferred to prerelease custody. Instead, it provides that the BOP “shall transfer eligible prisoners, as determined under section 3624(g), into prerelease custody or supervised release.” 18 U.S.C. § 3632(d)(4)(C). Section 3624(g), in turn, establishes the criteria for eligibility. Neither § 3632(d)(4)(C) nor § 3624(g) says that the BOP must transfer a prisoner immediately upon achieving eligibility. Section 3632(d)(4)(C) is best read as a directive that identifies what group of prisoners the BOP must transfer into prerelease custody, not as establishing an immutable date by which the BOP must effectuate individual transfers.

The Court acknowledged that “some district courts have held in the habeas context that the FSA requires the BOP to transfer an individual prisoner to prerelease custody once they become eligible… None of these cases, however, presented the argument made here by Plaintiffs, which is that the FSA compels the BOP to transfer every prisoner on the date of eligibility.”

The 48-page decision is detailed and fairly well reasoned. While not slamming the door on lawsuits to force BOP compliance with timely placement of FTC prisoners, Judge Amit Mehta’s ruling highlights the procedural and substantive obstacles to doing so. As such, it should be required reading for those seeking to force the Bureau to send them to prerelease custody on their FTC eligibility date.

Crowe v. Federal Bureau of Prisons, Case. No 24-cv-3582, 2025 U.S. Dist. LEXIS 109052 (D.D.C., June 9, 2025)

– Thomas L. Root

Federal Judge Blocks New BOP Transgender Policy – Update for June 13, 2025

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JUDGE BLOCKS BOP TRANSGENDER ORDER FOR NOW

The Supreme Court yesterday handed down three cases of interest to prisoners and their families, and a District of Columbia judge laid the leather to a class action against the Federal Bureau of Prison’s handling of FSA credits. All of that must wait until the weekend for me to digest and write about. For now, I have a decision to write about from last week, in which a federal judge ruled that the BOP cannot withhold gender-transition medical care from inmates identifying as transgender.

Under an Executive Order that President Trump signed on January 20th, the BOP was ordered to withhold any accommodations – from surgery and hormone therapy to access to gender-specific underwear and other commissary items – previously provided to inmates identifying as transgender.

In a 36-page-opinion, US District Judge Royce C. Lamberth (U.S. District Court for the District of Columbia) granted a preliminary injunction against enforcement of the Executive Order and assigned class-action status to the lawsuit, brought on behalf of an estimated 1,028 BOP inmates who are diagnosed with gender dysphoria, a disorder caused by a mismatch between their assigned gender and their perceived gender. The preliminary injunction will remain in place while attorneys for the ACLU and the Transgender Law Center pursue a lawsuit challenging Trump’s executive order.

The Judge wrote that BOP rules adopted in response to the Executive Order seemed likely to be found to be “arbitrary and capricious” in violation of 5 USC § 702(6) and the 8th Amendment. The judge ordered the BOP to continue providing hormone therapy to transgender people as needed, and to restore access to social accommodations such as hair removal, chest binders and undergarments. “The BOP may not arbitrarily deprive inmates of medication or other lifestyle accommodations that its own medical staff have deemed to be medically appropriate,” he wrote.

The ACLU and the Transgender Law Center filed the suit on behalf of one trans woman and two trans men, but the judge made it a class action representing any person incarcerated in federal prison who now needs, or who may in the future need, access to gender-affirming care.

Memorandum Opinion (ECF 67), Kingdom v. Trump, Case No 1:25cv691 2025 U.S. Dist. LEXIS 105237, (D.D.C., June 2, 2025)

Washington Post, U.S. judge halts Trump ban on treatment for 1,000 transgender prisoners (June 3, 2025)

– Thomas L. Root

“Factual Predicate” is For Another Day – Update for June 12, 2025

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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.

SCOTUS LETS 2244 “FACTS VERSUS CLAIMS” CIRCUIT SPLIT FESTER

What the Supreme Court did not do last Friday is nearly as interesting as what it did do.

As anyone who has pursued a post-conviction motion under 28 USC § 2255 knows, the law does its best to limit such petitions to one to a customer. Bringing a second or successive § 2255 motion is limited by 28 USC § 2244(b) to cases where the Supreme Court has declared a statute unconstitutional or where “the factual predicate for the claim could not have been discovered previously through the exercise of due diligence.”

But what is the meaning of the term “factual predicate?” Some circuits have held that a factual predicate is the underlying fact that the claim is about. Others have held that a factual predicate includes evidence that supports a previously unavailable claim.

In the 1st, 2nd, 3rd, 5th, 7th, 8th, 10th and 11th Circuits, the claim itself has to be new. Up to last year, only the 9th Circuit had held that new evidence supporting a claim that has always been available is enough.

Kayla Ayers was convicted of arson under Ohio law in 2011 based in part on testimony from an expert hired by the State that the fire that consumed her house started at two different corners of a mattress at the same time (which pretty much proved that it was deliberately set). In the years since her conviction, she maintained her innocence but could not afford to hire her own expert to make her case. In 2019, the Ohio Innocence Project agreed to take on her case and paid for a real arson pro who made mincemeat of the State’s expert testimony.

The state courts said she was too late with her new evidence, as did the federal district court when she filed a 28 USC § 2254 petition (a § 2254 is like a § 2255 motion, but for state prisoners seeking federal review of a state post-conviction decision). When Kayla appealed to the 6th Circuit, however, the appeals court concluded that the new expert report was precisely the kind of “factual predicate” that would justify allowing her to file her petition for post-conviction relief even after the one-year statute of limitations had run, reasoning that she could not have “discovered” it earlier due to not being able to afford to hire an expert until the Innocence Project agreed to bankroll her.

The State of Ohio asked the US Supreme Court to reverse the 6th Circuit and settle the circuit split. Last week, after relisting the State’s certiorari petition three times, the Supremes refused to review the case.

This does not mean that SCOTUS agrees with the 6th’s position that new evidence about an old claim is enough to constitute a new “factual predicate” under § 2244(b). It could be the majority of justices agreed that there was a reasonable probability Kayla would have been acquitted if the new evidence had been available. Possibly, the reason for denial was that Kayla had already served all of her time and was at home (presumably without any matches in the house).

But the broad definition of “factual predicate” for purposes of the timeliness of Kayla’s petition (§ 2244(d)(1)(D) applies equally to “factual predicate” in 2244(b)(2)(B) covers federal prisoners seeking permission to bring a late § 2255 as well. With the 6th‘s Ayers decision now binding, federal prisoners in that circuit have a much broader means of getting back into court for a second § 2255 motion.

Chambers-Smith v. Ayers, Case No 24-584 (certiorari denied June 6, 2025)

Ayers v. ODRC, 113 F4th 665 (6th Cir. 2024)

– Thomas L. Root