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O DAY AND NIGHT, BUT THIS IS WONDROUS STRANGE

Like many drug defendants, Bob Miller got hammered with a 200-month plus sentence. Also like many defendants, he belatedly tried to help himself by providing information to the government. That netted him a 20% discount to about 168 months.

When Amendment 782 came along a few years later, Bob applied for a reduction to 134 months, the bottom of his new Guidelines. The Government, no longer his friend, argued against it, pointing out that witnesses said Bob had carried a gun during his drug dealing days, and that he had committed five disciplinary infractions while locked up, two for some hooch, one for possessing something that could have been used as a weapon, and one for destroying BOP property.

Bob pointed out that the Government knew all of that when it moved for his 20% reduction in sentence, but obviously didn’t think it was a problem then. But the judge was convinced to deny Bob’s Sec. 3582(c)(2) motion for sentence reduction, even while saying he was ignoring any evidence that Bob had carried a gun while dealing.

The judge was influenced to deny the reduction by Bob’s BOP disciplinary reports, which the judge called “relatively recent” and serious. The judge said Bob “remains a significant danger to the community.”

So far, this case is not strange at all. Sec. 3582 motions are filed all the time, more than a few are denied, and everyone knows the judge had nearly unfettered discretion. What’s more, everyone knows that when a judge says a defendant is eligible but should not get the sentence cut, that decision is virtually unreviewable by a court of appeals.

But suddenly, as Horatio would have said, something “wondrous strange” happened. Last week, the 7th Circuit reversed the district court’s denial, and sent Bob’s sentence reduction motion it back for more consideration. The appellate court criticized the trial court’s conclusion that Bob was a danger to the community. The issue, the Court of Appeals said, is not whether Bob is presently a danger, but rather “the real question is whether he is likely to remain a significant danger to the community when he is released, which won’t be for another five years or so even if he receives the further reduction that he’s asking for.” What’s more, the 7th said, the district court “did not explain why the two alcohol offenses were now to be counted against the grant of a sentence reduction when they had not been previously.”

Bob also complained that the district court did not consider his achievements in prison, including the courses he completed and his reduction in security and custody. The trial court didn’t consider Bob’s accomplishments, because Bob’s lawyer never told the judge about it. Bob dumped his lawyer on appeal, and filed the certificates as exhibits to his brief. Of course, the Court of Appeals said, litigants generally are not allowed to bypass the district court and present evidence for the first time to the court of appeals.” But curiously enough, the Court said it would make an exception here, because “apart from the fact that the government does not question the certificates’ authenticity and could not have objected to their admission in the district court had they been introduced there, the failure to submit them in that court was the fault not of the defendant but of his lawyer… We can’t begin to understand why… the lawyer didn’t use the documents to help support his client’s motion to reduce sentence. Had the lawyer followed his client’s instructions the district judge would have seen the certificates and the defendant’s case would have been strengthened. And before deciding that reducing the defendant’s sentence would pose a danger to society, the judge could have asked the government for a statement by the prison warden concerning the defendant’s current behavior in prison, an inquiry that would probably have yielded information about the defendant’s efforts to obtain a GED.”

This decision is indeed “wondrous strange.” First, appellate courts usually refuse to review denials of Sec. 3582 motions where the district refuses to exercise its discretion. Second, appellate courts hardly ever permit parties to add to the record on appeal. Third, appellate courts almost always say the actions of a lawyer bind the client.

Hamlet replied to Horatio, “And therefore as a stranger give it welcome. There are more things in heaven and earth, Horatio, Than are dreamt of in your philosophy.” The Miller decision is a genuine outlier in 3582 decisions. Some appellate courts will not even entertain an appeal like this one. The 7th Circuit not only heard the case, but essentially built its own record and substituted its own judgment for the district court. To be sure, it just send the case back for the district judge to do as he wishes, but anyone can read the tea leaves. Bob is to get a sentence cut.

It concluded that because it figured the district judge “might decide to grant the sentence reduction once he’s assured that the defendant has taken courses toward the GED, since the judge erred in describing the defendant’s disciplinary infractions as recent, and since he seems not to have considered whether the defendant is likely to remain a danger to the community when he is released from prison, years from now,” it would vacate the denial and send the case back to the trial court.

United States v. Miller, Case No. 15-3584 (7th Cir.   Aug. 10, 2016)

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BELLY-ACHING ABOUT CLEMENCY, SENTENCE REFORM

Congress is on vacation for all of August, meaning nothing is getting done in Washington on sentence reform, although the House of Representatives is set to take up the Sentence Reform and Corrections Act of 2015 next month.

That does not mean there isn’t plenty of griping. Last week, Sen. Jeffrey Sessions (R-Alabama) complained that “President Obama continues to abuse executive power in an unprecedented, reckless manner to systematically release high-level drug traffickers and firearms felons. These 214 individuals are not so-called ‘low-level, non-violent’ offenders – which simply do not exist in the federal system. They are serious criminals, including 56 with federal firearms convictions, several career offenders, fugitives, many who violated conditions of their release, and at least one who engaged in witness intimidation.”

According to the Pardon Power law blog, Congressman Bob Goodlatte (R-Virginia) last week whined “that Obama is using commutations ‘to benefit an entire class of offenders who were duly convicted in a court of law.’ Yes, most of the time (but not always) clemency is exercised on behalf of criminals, people who were convicted. If Goodlatte really counts that as “insight” re Obama’s commutations, he is a train wreck indeed. What he doesn’t mention is that those individuals were sentenced under guidelines rejected by both parties in both chambers of Congress as ineffective, if not out right unfair. What he doesn’t mention is the judges in those courts of law complaining about the ridiculous nature of those sentencing guidelines. What he doesn’t mention is the fact that the “entire class of offenders” to date means 562 of 12,000… who just so happened to have applied…”

Meanwhile, the liberal website Salon gloomily predicted that “mass incarceration’s profile as a national issue appears to be on the wane. Throughout 2015, the nation’s over-reliance on imprisonment drew a constant spotlight, producing a plethora of bipartisan policy proposals and expressions of moral outrage in Beltway circles… At a moment of great congressional discord, people across the spectrum were finally agreeing on at least one thing: the United States was spending too much money on corrections and locking up too many people, especially black folks. Yet as the presidential campaign heated up, mass incarceration began to fade from the scene. The bully in the presidential campaign playground, Donald Trump, contributed immensely to the change in climate…”

Finally, the libertarian Cato Institute last week wrote about Weldon Angelos, released four decades early from a 55-year drug and gun sentence due not to commutation, but rather “through a negotiated motion by the government that, alas, cannot be replicated in other cases.”

The article said, “Sadly, legislative efforts at sentence reform appear to be mired in an intramural fight among Republicans, as well as hindered by Democratic intransigence toward another worthy reform… Until lawmakers can agree on a means to prevent draconian sentences, clemency will remain the only remedy for such miscarriages of justice. Unfortunately, the federal clemency system is also dysfunctional. Weldon’s petition for clemency was filed in November 2012 — and it then sat, unresolved one way or another, for three-and-a-half years… Even when the Obama administration launched the ‘Clemency Project 2014”’ and Weldon’s case was accepted into that program, he languished in prison as the petition slogged through the seven vertical levels of review any successful clemency case must navigate.”

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PINOCHIO WITH A BADGE

Marcos Reis-Campos, a member of the Norteño gang, was convicted of killing Luis Fuentes, head of the local MS-13 gang franchise. Marcos said he shot Luis because he felt threatened. At trial, the prosecutor depicted Luis as a house painter and family man, shot down in a senseless gang slaying.

But it turned out that Luis was not quite as pure as the prosecutor said he was. A local gang-specialist copy testified that he was aware of no gangland retaliation going on at the time Luis was shot. If there had been a gangland war going on, that fact would have supported Marcos’ argument that he had feared Luis was going to kill him. It turned out that the cop knew full well that Luis had ordered one of his underlings to kill a rival from another gang just a few weeks before Marcos blew him away, but testified falsely. What’s more, an FBI report established Luis was known for posing as a homeless person to murder opposing gang members. Had the defense possessed the report at trial, it could have used it to cross-examine government witnesses.

Marcos didn’t find out about the cop’s lie and the withheld reports until after he was convicted. He filed a habeas corpus claim, alleging the prosecutor withheld Brady material, evidence that was helpful to the defense that the prosecution should have turned over under Brady v. Maryland. He also raised a Napue claim, that the prosecutor knowingly introduced perjured testimony which went uncorrected, a constitutional violation under Napue v. Illinois.

Sadly for Marco, the state courts concluded that even if the jury had heard the Brady evidence, the evidence concerning Luis’s involvement in the other killing and the FBI report was not material to Marcos’ defense; and (2) his Napue claim failed because, assuming the police officer had committed perjury that the prosecutor knowingly left uncorrected, this too was not material to Marcos’ defense. Marcos appealed the state court denials to federal court under 28 U.S.C. § 2254, and earlier this week, the 9th Circuit reluctantly affirmed the state courts’ denial.

Obtaining federal relief for a state claim is considerably more difficult than winning a 2255 proceeding. It’s not enough for the state court to be wrong. It has to be unreasonable. Thus the 9th Circuit concluded that “the prosecutor’s withholding of information and Molina’s false testimony are very troubling. Yet “troubling”is not the relevant standard. It is materiality… that controls. Ultimately, these failures do not materially change the already negative and violent depiction of Luis Fuentes. It was not unreasonable for the state court to determine that nothing that the government suppressed or falsely proffered addressed the most fundamental question before the jury – whether Marcos Reis-Campos shot Luis Fuentes because he feared for his life on June 26, 2004.  As such, though the prosecution’s tactics were suspect, the state court did not err under AEDPA in rejecting Reis-Campos’ claims.”

Thus, it’s not enough that a law enforcement agent lies on the stand. The lie has to alone be a misstatement or omission, had it not occurred, would have turned the case for the defendant. There are those who think the fact that a cop on the stand is lying to convict a defendant is ipso facto a material fact that the jury should know. The courts follow the doctrine of falsus in uno, falsus in omnibus, which is to say that if a witness lies about one thing, the jury is free to conclude that he or she is lying about everything. Given the special status of law enforcement, it seems not too much to ask to hold case agents to a standard of no lying, no way, no how.

Reis-Campos v. Biter, Case No. 5-15683 (9th Cir. August 10, 2016)

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CIRCUIT TAKES BACK JUDGE GLEESON’S GIFT

In his final days on the Eastern District of New York bench before joining a white-shoe Wall Street law firm, U.S. District Judge John Gleeson invented a blueprint for helping people convicted of federal crimes secure jobs. Yesterday, the 2nd Circuit undid his efforts.

Last March Judge Gleeson issued a “federal certificate of rehabilitation” to a nurse with a 13-year-old fraud conviction. The defendant – identified only as “Jane Doe” — had been shut out of nursing jobs because of her conviction for a car insurance scam. She served 15 months for it 12 years ago.

When we reported on this case a few months ago, we noted that the Justice Department was appealing the decision. In a decision handed down yesterday, the Circuit concluded that Gleeson’s court lacked jurisdiction to hear the expungement motion.

Still, the appellate court was sympathetic even while being rather chary. “The unfortunate consequences of Doe’s conviction compel us to offer a few additional observations,” the Court wrote. “First, our holding that the District Court had no authority to expunge the records of a valid conviction in this case says nothing about Congress’s ability to provide for jurisdiction in similar cases in the future. As described above, Congress has done so in other contexts. It might consider doing so again for certain offenders who, like Doe, want and deserve to have their criminal convictions expunged after a period of successful rehabilitation. Second, only a few months ago (while this appeal was pending), the Attorney General of the United States recognized and aptly described the unfortunate lifelong toll that these convictions often impose on low-level criminal offenders… “[T]oo often,” the Attorney General said, “the way that our society treats Americans who have come into contact with the criminal justice system… turns too many terms of incarceration into what is effectively a life sentence.”

Doe v. United States, Case No. 15‐1967‐cr (2nd Cir. Aug, 11, 2016)

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WHY DIDN’T I THINK OF THAT EARLIER?

Have you ever been bested in a debate or argument, or even just a heated discussion, only to come up with a devastatingly witty riposte about 10 minutes too late? The French call it esprit d’escalier, literally “staircase wit.”

That’s what happened to George Torres. After a murder conviction, he argued enthusiastically and at length for relief under 28 U.S.C. § 2255. When that motion failed, he filed for appeal, but then suddenly thought of a killer argument. The government could not have ever prosecuted him, he contended, because the statute of limitations had expired. That meant the court lacked jurisdiction, and therefore the government had committed a fraud on the court.

It’s a great argument, except that (1) the statute had not expired; (2) even if it had, an expired statute of limitations would not divest a court of subject matter jurisdiction; (3) even if it did, filing an action over which the court lacks jurisdiction does not constitute fraud on the court; and (4) he should not have waited until after the 2255 motion to come up with it. Alas, esprit d’escalier does not excuse raising a new issue late.

To George, these were just details. He filed a rather obscure but perfectly usable motion under F.R.Civ.P. 60(d)(3), alleging that the government had committed a fraud on the court by trying to prosecute him.

A 60(d) motion is useful, principally because – unlike a 60(b) motion – there are no time limits on it. But calling it a 60(d) did not make it so to the court, which quickly held that the argument was meritless. George promptly appealed.

The 2nd Circuit held earlier this week that it would treat the 60(d) motion just as if it were a 2255 motion itself, and require a certificate of appealability in order for George to pursue the argument in the appellate court.

The Circuit Court said, “We addressed a nearly identical question in Kellogg. In Kellogg, we explained that, because an order denying a Rule 60(b) motion is a “final order,” the plain text of § 2253(c)(1) makes the COA requirement applicable to an order denying a Rule 60(b) motion in a habeas proceeding under § 2254. The same principle applies here: because an order denying a Rule 60(d) motion is a final order, § 2253(c)(1)’s COA requirement applies to an order denying a Rule 60(d) motion in a § 2255 proceeding. Indeed, it would be inconsistent to apply the COA requirement in the Rule 60(b) context, but not the rule 60(d) context. Rule 60(b) and Rule 60(d) serve a similar purpose: to allow district courts, in appropriate circumstances, to grant relief from a judgment or final order.”

The Court then gave Torres’ argument all of the attention it deserved, which is to say it denied a COA in one short sentence.

Torres v. United States, Case No. 16-124 (2nd Cir.  August 9, 2016)

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SERENDIPITY FOR JAILHOUSE LAWYERS

The dictionary defines “serendipity” as the faculty or phenomenon of finding valuable or agreeable things not sought for.  When inmate Serendipity Morales set out to help a few fellow prisoners with some legal matters, she never suspected the trek would end in the state Supreme Court, with her carving out an exception to state law.

However, late last week, the Vermont Supreme Court ruled last Friday that state inmate Serendipity Morales, a “jailhouse lawyer” who had been brought up on charges that she was engaged in the unauthorized practice of law, had committed no crime in helping her fellow prisoners with legal matters.

The Court concluded that there was no probable cause to prosecute her on the six counts (and yes, it is a crime in Vermont). The State had alleged that five inmates had heard Morales was familiar with the legal process, and so they obtained her help in preparing legal filings on their behalf. She did not sign the pleadings herself, and she neither or accepted any payment for her help. (We have a little trouble believing this last one, and we figure her locker had all the commissary items she could ever want, but because paying anything to or receiving anything from another inmate is forbidden, we doubt anyone admitted to it). The State admitted Morales never signed pleadings on behalf of the other inmates or told anyone she was a lawyer herself.

The Court cited some Vermont precedent for nonlawyers providing legal advice to companies they worked for and nonlawyer child support workers appearing in court. But central to its creation of a “Morales exception” was that “’jailhouse lawyers’ who give legal assistance to fellow inmates but are not themselves licensed or formally law trained, are a well-established fixture in the justice system,” and that “incarcerated inmates face particular challenges in accessing legal advice, and those challenges raise serious public policy, and in some circumstances, constitutional concerns.”

The Court said that “although there may be some limits on the ways in which an inmate can give legal help to another, we are wary of adopting a definition of unauthorized practice of law that would subject individuals to a finding of criminal contempt for engaging in conduct that has been tolerated and arguably even supported by the State.”

In re Serendipity Morales, Case No. 2016-043 (Supreme Court of Vermont, August 4, 2016)

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 LOOKING AT A GIFT HORSE

As we reported, President Obama commuted the sentences of 214 federal prisoners last Wednesday. At least 67 of them were serving life sentences, many of those for nonviolent drug crimes. The White House brags that Obama has now granted 562 commutations, more than “the previous nine presidents combined and more commutations than any individual president in nearly a century.”

This is true, but rather misleading. First, while he’s granted a record number of commutations, he’s only issued 70 pardons so far, fewer than any president in the past 120 years. At an average of seven pardons or commutations per month in office, Obama’s numbers are still well under historic norms for most of the 20th century.

The latest commutations are welcome news for criminal justice reform groups. But Obama’s 562 commutations and 70 pardons represent about one-third of 1 percent of the total federal prison population. Only about 25% of the estimated 2,000 inmates meeting clemency criteria have had their petitions granted, and time is very short.

Speaking of no time, The Hill said of the Sentencing Reform and Corrections Act of 2015 last last week that “clearly, the clock is ticking, with little time left on the political calendar this year. Both Senator Grassley and House Speaker Ryan have indicated that they would like to bring the bill to the floor after Labor Day. With a Congress that has been widely disparaged as unable to address serious concerns, enacting sentencing reform would begin to help repair that image while bringing a measure of rationality and compassion to thousands of citizens behind bars.”

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FAMILY FEUD

The 11th Circuit easily has been the most dysfunctional federal circuit when it comes to granting permission to inmates for second-and-successive 2255 motions under Johnson v. United States. The Circuit has spawned more reported decisions on the subject, and those have rarely been shining examples of judicial thought. Earlier this week, three-judge panel issued a decision granting leave for a second-and-successive which was notable for its unbridled criticism of a similar decision of another three-judge panel.

Inmate Devon Chance was given permission to challenge some or all of his many 18 U.S.C. § 924(c) convictions (he got 1,794 months for a string of armed robberies) on the grounds that the “crime of violence” definition in the statute – which contains a residual clause – is unconstitutional after Johnson. That decision alone was hardly remarkable. But what followed was.

The Court complained that “although our published opinions repeatedly have emphasized that the district court is to consider § 2255 motions de novo, in the whirl of orders addressing Johnson, a recent published order [In re Moore] from this Court discussed in dicta what districts courts purportedly ‘must’ do in adjudicating Johnson claims in § 2255(h) motions. The Moore panel acknowledged that ‘the district court is to decide the § 2255(h) issues fresh, or in the legal vernacular, “de novo”.’ But in the very next sentence, the Moore panel seemed to contradict that instruction by telling the district court that it ‘must decide whether or not Moore was sentenced under the residual clause in 2000’.” The panel then added ‘one further thought,’ also in the form of a command about what the district court can and cannot do: that ‘the district court cannot grant relief in a § 2255 proceeding unless the movant… proves that he was sentenced using the residual clause’.”

The Chance decision noted acidulously that “not only is Moore’s dicta just that – dicta – but it also seems quite wrong. Of course,” the Chance court said, “we recognize that what we are about to say has no more legal force than the Moore panel’s commentary (that is: none)… but we think Moore is wrong, for two reasons. First, it implies that the district judge deciding Mr. Chance’s upcoming § 2255 motion can ignore decisions from the Supreme Court that were rendered since that time in favor of a foray into a stale record. Assuming that Johnson does apply to § 924(c)’s “very similar” residual clause, then district courts must determine “‘categorically’–that is, by reference to the elements of the offense, and not the actual facts of [the defendant’s] conduct” — whether that offense qualifies as a crime of violence… In applying the categorical approach, it would make no sense for a district court to have to ignore precedent such as Descamps v. United States and Mathis v. United States, the Supreme Court’s binding interpretations of that approach. And yet, the Moore panel suggested that the sentencing court must ignore that precedent unless the sentencing judge uttered the magic words “residual clause.”

“There is a second problem with Moore’s command that an inmate must prove whether the district court used the words “residual clause” at his potentially decades-old sentencing. Nothing in the law requires a judge to specify which clause of § 924(c) — residual or elements clause — he relied upon in imposing a sentence…”

“Critically,” the Chance decision said, “when an inmate asks a court of appeals to certify a second or successive § 2255 motion, § 2255(h) is our sole source of authority to do or say anything in the case. That means any discussion of topics beyond ‘the § 2255(h) issues’ is irrelevant to a case and therefore dicta.”

In re Chance, Case No. 16-13198 (11th Cir. August 2, 2016)

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NEWSFLASH: 6th CIRCUIT SAYS LAWYERS SHOULDN’T LIE

The government accused Dr. Steve Arny of really being “Doctor Feelgood,” distributing pain meds to his patients willy-nilly, without any legitimate medical basis for doing so. Dr. Arny – a retired military M.D. who had hired on at a pain clinic because he wanted something to do – said while he was not a certified pain management doc, he had followed the practices of the prior pain management physician and made reasonable medical judgments.

A jury disagreed, convicting him of conspiracy to distribute controlled substances “outside the course of ordinary medical practice.” Thinking his defense had been sub-par, Dr. Arny hired new lawyers, who asked for a new trial based on his former lawyer’s ineffectiveness. The district court agreed. The government appealed.

Earlier this week, the 6th Circuit upheld Dr. Arny’s right to a new trial. The Circuit held that ineffective assistance of counsel, an issue usually raised in a post-conviction motion, can provide a basis for a F.R.Crim.P. 33 new trial motion, and it certainly did in Dr Arny’s case.

Before trial, the doc urged his lawyer to call as a witness the Dr. Saxman, the former pain physician, who had not been charged and in fact was still handing out pills at another clinic. His lawyer refused to subpoena her or even talk to her, telling Dr. Arny that Saxman was about to be indicted herself, and her new clinic had been raided.

It turned out his lawyer was making it up: Dr. Saxman was not being investigated, had not been raided, was not about to be indicted, and – had the lawyer cared to interview her – would have said she prescribed pills within the normal course of medical practice and Dr. Arny’s following her lead was fully justified. Her testimony would have given Dr. Arny’s case a real boost.

The government called a few of Dr. Arny’s former patients who were addicts, in order to show that he was dispensing painkillers to drug abusers. The doc begged his lawyer to interview other former patients whose stories would have painted a different picture of a caring, careful physician. His lawyer, however, didn’t bother to talk to any of his former patients. Yet after trial, it only took Dr. Arny’s new lawyers four days to come up with six affidavits from former patients whose testimony, the Court found, would have helped his defense.

Dr. Arny’s original lawyer argued that his failure to call Dr. Saxman was sound strategy, because her patient exam practices were better than Dr. Arny’s. The 6th Circuit rejected this. While a lawyer’s reasonable trial strategy will usually not be second-guessed, the Court said, because Arny’s lawyer did not bother to interview Saxman, “Arny was left without her potentially powerful testimony.” It’s true, the Court said, that “strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable,” but Arny’s trial counsel failed to make a reasonable, thorough investigation of Saxman’s potential testimony. “Therefore, trial counsel’s decision could not constitute a reasonable ‘strategic choice’.”

Likewise, the Court said, the failure of Arny’s lawyer to interview former patients was not strategic – “rather, it stems from neglect.” An attorney does not have to interview all potential witnesses, but he or she is required to investigate fruitful leads that a reasonable attorney would pursue. “Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable,” the Court said, but such choices made after incomplete investigation are reasonable only to the extent that the lawyer’s reasonable judgment supports the limited investigation. The choice by his lawyer not “to investigate and interview some of Arny’s former patients was an unreasonable decision, which led to the uninformed decision not to call any of Arny’s other patients to testify.”

The attorney’s lie to Dr. Arny that Saxman was about to be indicted wasn’t even close. The Court held it is ineffective assistance for a lawyer to lie to a client.

Concluding that testimony from Saxman and Arny’s former patients who had not been interviewed would have had a genuine impact on the jury, the 6th Circuit upheld the district court’s grant of a new trial to Dr. Arny.

United States v. Arny, Case No. 15-6130 (6th Cir. August 1, 2016)