Vol. 2, No. 19

This week:

Supreme Court Says Incorrect Guidelines Range Affects “Substantial Rights”

Multidistrict Child Porn Search Warrant Thrown Out

Irritating Self-Representation No Basis for Higher Sentence

Get It in Writing

Let’s Talk About the Weather – or Maybe Sentence Reform

SUPREME COURT SAYS INCORRECT GUIDELINES RANGE AFFECTS “SUBSTANTIAL RIGHTS”

We’ve had Johnson v. United States on our mind after the Supreme Court’s quick decision in Welch v. United States last week held Johnson to be retroactive. So when Welch was followed by the high court’s 8-0 decision last Wednesday in Molina-Martinez v. United States, we could not help but think that its logic might bolster the arguments of Guidelines “career offenders” seeking to take advantage of Johnson in post-conviction proceedings.

Saul Molina-Martinez was sentenced at the bottom of his 77-96 month range. At the time, no one realized that his Presentence Report mistakenly put him in a higher criminal history category than his record justified. Only after Saul’s attorney told him that he had no good appeal issues did the defendant himself find the error and bring it to his lawyer’s attention.

When an issue is not first raised in the district court, it is almost always reviewed in the Court of Appeals under the F.R.Crim.P. 52(b) “plain error” standard. It’s a hard standard to meet. The error has to be obvious and must affect the defendant’s “substantial rights.” Saul’s problem was that his 77-month sentence fell right in the middle of the 70-87 month sentencing range he would have had applied to his case if the error had not been made. The 5th Circuit held that because Molina-Martinez’s sentence fell inside the correct, lower range, the error did not affect his substantial rights, because he could not show his sentence would have been lower but for the mistake.

The Supreme Court rejected this “categorical” requirement that a defendant must present “additional evidence” indicating that he would have received a different sentence had the right range been used. The Supreme Court’s opinion leaned heavily on its 2012 ruling in Peugh v. United States (which established that despite the advisory nature of the Guidelines, they still have to pass constitutional muster). Citing Peugh, last week’s decision stressed that the “Guidelines’ central role in sentencing means that an error related to the Guidelines can be particularly serious.” This necessarily means that in “most cases a defendant who has shown that the district court mistakenly deemed applicable an incorrect, higher Guidelines range has demonstrated a reasonable probability of a different outcome” if the proper guideline range had been used.

The Court’s logic – as well as its strong reliance on Peugh – may provide a tailwind to defendants arguing that use of an unconstitutionally vague “residual clause” in labeling a defendant a Guidelines “career offender” is as much a denial of due process as is wrongly using the same “residual clause” to sentence him under the Armed Career Criminal Act.

Molina-Martinez v. United States, Case No. 14–8913 (Apr. 20, 2016)

MULTIDISTRICT CHILD PORN SEARCH WARRANT THROWN OUT

A Massachusetts federal judge ruled Wednesday that a search warrant for a wide-ranging Internet search issued by a federal magistrate judge in Virginia was invalid. The child pornography the government claimed was on the defendant’s computer was ordered suppressed, making continuing prosecution of this case unlikely.

The search warrant, issued under F.R.Crim.P. 41 in early 2015, allowed federal agents to use a “network investigative technique” (NIT), which is a piece of software typically used to penetrate the digital security of the Tor network. (Tor is a system used to hide the digital identify of users). That NIT “malware” led authorities to the defendant’s computer.

Earlier this year, the defendant challenged the government’s judicial authorization to deploy the NIT. He argued the warrant “allowed government agents to conduct a borderless dragnet search with no geographic limitation … Rule 41 simply does not permit a magistrate judge in Virginia to authorize the search of the defendant’s computer located in Massachusetts.”

The district court held that current law restricts the power of magistrate judges to grant search warrants for locations outside of the court’s district. The Federal Rules of Criminal Procedure and precedent do not restrict the power of district judges to do so, however. The judge noted that “unlike magistrates, the jurisdiction of district courts is usually defined by subject matter and parties rather than strictly by geography.”

For the past several years, DOJ has sought to expand magistrate judges’ ability to sign off on the deployment of NITs. The change would give federal authorities an expanded ability to conduct “remote access” under a warrant against a target computer whose location is unknown or outside of a given judicial district. Civil liberties groups and tech companies like Google strongly oppose the change, arguing it would vastly expand the government’s authority to hack into networks in search of criminal suspects.

The Supreme Court is expected to decide whether to approve a change to Rule 41 by May 1. Congress will then have seven months to accept, reject or modify a change. If lawmakers take no action, the rule would take effect in December.

Reuters, Justice Department: Child porn case shows need for new data search rules (Apr. 21, 2016)

Ars technica, Judge invalidates warrant that let Feds hack Tor-using child porn suspect (Apr. 20, 2016)

IRRITATING SELF-REPRESENTATION NO BASIS FOR HIGHER SENTENCE

Generally, adopting a trial strategy of acting like a jerk is a bad idea. Last week, however, the 7th Circuit said it was no basis for an increased sentence.

Ken Lewis figured he knew more than his lawyers. He probably figured he knew more than the judge, too. So in his trial for wire fraud and money laundering, he represented himself, despite warnings that it was a bad idea. He of course was convicted, but only after – as the Court of Appeals drily put it – he “was an irritant during the trial process.”

The district court did not take kindly to Ken’s trial shenanigans. It sentenced him to 151 months for wire fraud, and then stacked an additional 120 months on for the money laundering. The court based the draconian sentence on Ken’s misconduct during the trial.

On appeal, Ken continued his self-representation, but the Court of Appeals wisely appointed an attorney to write an amicus brief on his behalf. Ken did his cause no good, but the Court overlooked that, focusing instead on the amicus arguments. They were pretty good, too – the amicus lawyer forced the Government to admit that the money laundering conviction should be thrown out. The Court agreed, saying “the record is devoid of evidence that Lewis laundered money.”

The amicus attorney also argued that the district court could not punish Ken at sentencing for his foolish trial conduct. The Court agreed, saying that “Lewis’ litigation tactics cannot serve as a basis for his sentence. The record demonstrates that Lewis was an irritant during the trial process.” But it “would not be appropriate or permissible” to lengthen his sentence because of such vexatiousness, particularly given his pro se status. The district court’s frustration, however understandable, cannot permeate sentencing.”

United States v. Lewis, Case No. 14-2442 (7th Cir.  Apr. 20, 2016)

GET IT IN WRITING

In the world of medicine, it’s often said that careful recordkeeping is essential: “If you didn’t write it down, it didn’t happen,” as the adage goes.  How true.

Bob McNeese was a pharmacist who let himself be pressured into dispensing oxycodone to people who resold the pills on the street. He turned himself in, and worked out a plea deal in which he agreed to plead guilty to a conspiracy charge. His plea agreement noted that he had cooperated with authorities and had admitted to distributing at least 15,850 oxycodone pills, which the agreement mentioned “converts to” 2999.925 kilograms of marijuana. Pursuant to F.R.Crim.P. 11(c)(1)(C), McNeese and the government agreed to a fixed sentence of 63 months. The agreement mentioned that the sentence “takes into account the cooperation and assistance provided to law enforcement in this investigation,” but nowhere mentioned the Sentencing Guidelines or any range of punishment on which the 63 months was based.

The Presentence Report calculated Bob’s sentencing range to be 87-108 months. At sentencing, the government explained that Bob had assisted law enforcement and that an additional “three level reduction was included into this overall agreement” to account for that. That would have landed the 63-month sentence squarely within a 63-78 month range. The court observed that Bob had “gotten the benefit of what in effect is a downward departure motion” and imposed the 63-month sentence.

When the Sentencing Commission adopted Amendment 782, Bob applied for his 2-level reduction. The District Court said he was not eligible, because he had a Rule 11(c)(1)(C) agreed-upon sentence. Last week, the 6th Circuit agreed.

Bob argued that his case was like Freeman v. United States, in which the Supreme Court said that a Rule 11(c)(1)(C) sentence could be reduced under 18 U.S.C. § 3582(c)(2). But there, the plea agreement expressly said the agreed-upon sentence had been based on the Guidelines, and it provided the defendant’s criminal history and offense levels so that anyone reviewing it could confirm the calculation.

The 6th Circuit said that Bob’s argument “would require this court to make assumptions about what the parties might have known while negotiating and speculate about what might have motivated them when they put pen to paper… It is true that the prosecutor’s remarks at the sentencing hearing—together with the presentence report prepared by the probation officer—make clear that by the end of the sentencing hearing, McNeese, the government, and the district court all understood that the agreed-upon sentence did in fact derive from a Guidelines sentencing range. But nothing in the Freeman [decision] suggests that the parties’ knowledge, unexpressed or later expressed, should make any difference so long as a “sentencing range is [not] evident from the agreement itself.”

United States v. McNeese, Case No. 15-5548 (6th Cir.  Apr. 18, 2016)

LET’S TALK ABOUT THE WEATHER – OR MAYBE SENTENCE REFORM

The Sentencing Reform and Corrections Act of 2015 is turning out to be a lot like the weather – everyone’s talking about but nobody’s doing anything. The two bills – S. 2123 in the Senate and H.R. 3713 in the House – remain stalled. The Senate bill still has 28 cosponsors. The House measure picked up a Pennsylvania Democrat last week, and now has 65.

An optimistic note was sounded a week ago in an opinion piece in The Hill, a Capitol Hill newspaper. The ACLU official who wrote it said “reformers from across the political spectrum … are still focusing their efforts in the states, to ensure that voices of support are amplified virtually everywhere, and that lawmakers leading the effort are being encouraged supported by their constituents … The signs are promising.”

Observers without a dog in the fight see it differently. Politico, a news website covering Congress, warned last week that “time is running out to reboot efforts to reform the nation’s criminal justice laws…”

The chief Republican backers, led by Judiciary Committee Chairman Chuck Grassley (Iowa) and Majority Whip John Cornyn (Texas) have lobbied GOP senators for weeks to prove to Majority Leader Mitch McConnell (R-Kentucky) that they can gin up sweeping support for the bill and move the legislation quickly on the Senate floor.

As we reported last week, since concerns about the bill were made public, the authors have revised several provisions in the legislation. A section that reduced mandatory minimum sentences for those convicted under the Armed Career Criminal Act has been eliminated, and the bill now denies retroactivity to anyone who has been convicted of any “serious violent felony,” whatever that might be.

Those changes may be winning over some new Republicans. “We’re taking a real close look at it this week,” said Sen. Ron Johnson (R-Wisconsin), who is locked in one of the most competitive races of the year. “I’m very sympathetic with the bill.”

Backers are targeting Republican senators up for reelection this year. “We have a lot of progress made and people saying that we’ve gone in the right direction. But we’re not getting answers from some people,” Grassley said in a brief interview Wednesday. “Like for instance, one senator says, ‘I’ll let you know Monday.’ He hasn’t let us know.”

Sentence reform sponsors have hinted at a formal rollout of the bill for a floor vote for weeks, but the delay continues to buy more time to build support. Supporters admit they must prove to McConnell that they have 60 votes for the measure before the majority leader will schedule a floor vote on a bill that will divide Republican senators.

Meanwhile, legislative time is running short, and other issues are competing for what’s left of it. The Senate is preparing to restart its lengthy appropriations process. After the Republican National Convention in July, the chamber will be pretty much on recess until after the November election.

On criminal justice reform, the House has H.R. 3713, a parallel bill. The House Judiciary Committee has thus far passed eight separate measures – including H.R. 3713 – on issues such as sentencing and prison reform. House Speaker Paul Ryan (R-Wisconsin) has said he plans to bring those bills to the floor this year. The two chambers will have to resolve differences on the issue of mens rea — laws governing criminal intent. The Senate bill doesn’t include mens rea reform because of Democrat opposition, yet House Republicans have demanded that it be part of an overall criminal-justice package.

Finally, a pair of economists last week argued in the New York Times that the law of diminishing marginal benefits “applies to incarcerating additional people or adding years to sentences. Research finds that more incarceration has, at best, only a small effect on crime because our incarceration rate is already so high. As the prison population gets larger, the additional prisoner is more likely to be a less risky, nonviolent offender, and the value of incarcerating him (or, less likely, her) is low.”

“The same general principle applies to the length of prison sentences, which in many cases have gotten longer as a result of sentence enhancements, repeat-offender laws, “three strikes” laws and “truth-in-sentencing” laws,” they wrote. “Longer sentences do not appear to have a deterrent effect … Other studies have found that sentencing enhancements have only modest effects on crime. They are unlikely to meaningfully affect the overall crime rate or generate meaningful gains in public safety. Moreover, in many cases the analysis suggests that adding prisoners or years to sentences can be harmful. A growing body of research shows that incarceration and longer sentences could increase recidivism. Individuals may build criminal ties while incarcerated, lose their labor-market skills and confront substantial obstacles to re-entry after release. A new study finds that each additional year of incarceration increases the likelihood of re-offending by four to seven percentage points after release.”

Legal Information Services Associates provides research and drafting services to lawyers and inmates. With over 20 years experience in post-conviction motions and sentence modification strategy, we provide services on everything from direct appeals to habeas corpus to sentence reduction motions to halfway house and home confinement placement. If we can help you, we’ll tell you that. If what you want to do is futile, we’ll tell you that, too.

If you have a question, contact us using our handy contact page. We don’t charge for initial consultation. 

Would you like a copy of this newsletter in PDF format?  Click here.

Vol. 2, No. 18

This week:

Supreme Court Declares Johnson Retroactive

Sentencing Commission Proposes 2016 Amendments

Something in the Wind at Supreme Court Today?

Sentencing Commission Challenges BOP Primacy on Compassionate Release

Is Sentencing Reform Being Watered Down?

SUPREME COURT DECLARES JOHNSON RETROACTIVE

By a 7-1 vote, the United States Supreme Court this morning declared that its holding last summer in Johnson v. United States – that declared the “residual clause” of the Armed Career Criminal Act to be unconstitutionally vague – is retroactive to cases that were already final when Johnson was handed down.

In an unusual decision announcement on a Monday morning, just before a major argument got underway on the Obama administration’s immigration orders (United States v. Texas), the 8-member Court held in Welch v. United States that the Johnson decision was a “substantive rule” and thus retroactive. The decision reversed an 11th Circuit denial of a 2255 motion.

The Court said that under the Teague v. Lane “framework, the rule announced in Johnson is substantive.  By striking down the residual clause as void for vagueness, Johnson changed the substantive reach of the Armed Career Criminal Act, altering “the range of conduct or the class of persons that the Act punishes.” Before Johnson, the Act applied to any person who possessed a firearm after three violent felony convictions, even if one or more of those convictions fell under only the residual clause.  An offender in that situation faced 15 years to life in prison.  After Johnson, the same person engaging in the same conduct is no longer subject to the Act and faces at most 10 years in prison.  The residual clause is invalid under Johnson, so it can no longer mandate or authorize any sentence.  Johnson establishes, in other words, that “even the use of impeccable factfinding procedures could not legitimate” a sentence based on that clause.  It follows that Johnson is a substantive decision.”

Justice Kennedy wrote the opinion. Only Justice Thomas dissented.

The decision should start a land rush on ACCA and “career offender” 2255 motions over the next two months. The timeliness rules of 28 U.S.C. § 2255(f) suggest that any filings seeking to benefit from Johnson retroactivity must be filed by the one-year anniversary of the Johnson ruling, which was handed down on June 26, 2015.

Welch v. United States, Case No. 15-6418 (April 18, 2016)

SENTENCING COMMISSION PROPOSES 2016 AMENDMENTS

The U.S. Sentencing Commission adopted proposed changes to the Sentencing Guidelines last Friday, amendments that included significant modifications to immigration and animal fighting sentences. Of most relevant to federal inmates, the Commission challenged the BOP by proposing a major expansion in the standards for compassionate release (see third story).

The immigration amendment would create a scale of Guideline levels to account for the level of a defendant’s prior criminal conduct in a more proportionate manner than the current flat 16-level enhancement.

The Commission also voted to strengthen the Guidelines “to better reflect the cruelty and violence” associated with animal fighting offenses. After receiving over 50,000 comments on the proposal – a Sentencing Commission record – the agency voted to raise the base offense level for animal fighting offenses by 350% and to add an enhancement for anyone who takes a minor to an animal fight.

In the last few years, the vagueness and incomprehensibility of standard supervised release terms have made them a punching bag for the courts. In response, the Sentencing Commission proposed amendments to revise and clarify probation and supervised release terms. The agency admitted that “the Seventh Circuit has found several of the standard conditions to be unduly vague, overbroad, or inappropriately applied … and has also suggested that the language of the conditions be revised to be more comprehensible to defendants and probation officers, and to contain a stated mens rea requirement where one was lacking.” The proposed changes are intended to be “simply worded, bearing in mind that, with rare exceptions, neither the defendant nor the probation officer is a lawyer and that when released from prison the defendant will not have a lawyer to consult.”

Nothing in last Friday’s proposal addressed whether the proposed Guidelines changes would be retroactive. In the past, the Commission has not addressed retroactivity when a Guidelines change was proposed. If any of the proposed amendments is a suitable candidate for retroactivity, the Commission will probably take it up the question in a future proceeding.

U.S. Sentencing Commission, U.S. Sentencing Commission Approves Significant Changes To The Federal Sentencing Guidelines                          (Apr. 15, 2016)

Sentencing Commission, 2016 Proposed Amendments to           Sentencing Guidelines (Apr. 15, 2016)

SOMETHING IN THE WIND AT SUPREME COURT?

The Supreme Court, altering its usual agenda, announced last week that it would issue one or more opinions in argued cases today, as well as on the more normal days of Tuesday and Wednesday. Ordinarily, when the Court is hearing argument on Mondays, it releases only orders in new cases, and withholds opinions until later in those weeks.

The new plan stirred speculation that the Court has found some specific urgency in a pending case that requires immediate action. Monday will see a large crowd in the courtroom because the case up for argument that day is the major challenge to President Obama’s 2014 revision of immigration policy, in the case of United States v. Texas.

Denniston, A Break With Custom for Opinion Release, SCOTUSBlog.com (April 15, 2016)

SENTENCING COMMISSION CHALLENGES BOP PRIMACY ON COMPASSIONATE RELEASE

Last Friday’s Sentencing Commission proposal to change the standards by which the BOP picks inmate candidates for compassionate release under 18 U.S.C. § 3582(c)(1) is a shot across the BOP’s bow, but whether the proposal leads to any change is far from settled.

Last February, during a hearing on compassionate release, the Sentencing Commission was openly skeptical of the BOP’s claim that it alone was entitled to set standards for compassionate release. The Commission’s proposed amendments last week clearly marked its territory, asserting that “Congress charged the Commission with issuing policy statements describing what should be considered extraordinary and compelling reasons for a sentencing reduction.”

Under the proposed amendment, federal inmates should be proposed for compassionate release if they fall into one of four broad categories: (1) medical condition; (2) age; (3) family circumstances; or (4) other reasons:

•   As proposed, the “medical condition” factor would apply where the inmate either had a terminal illness, suffered from a serious condition, suffered from a serious functional or cognitive impairment, or was experiencing deteriorating health because of age that substantially diminished the defendant’s ability to provide self-care within a correctional facility and from which the inmate was not expected to recover. The proposed Guideline defines a “terminal illness” as a “serious and advanced illness with an end of life trajectory.” Unlike current BOP standards, the proposed Guideline says “a specific prognosis of life expectancy (i.e., a probability of death within a specific time period) is not required.”

•   “Age of the defendant” would apply if the defendant is at least 65, has a serious deterioration in physical or mental health because of the aging process, and has served at least 10 years or 75 percent of his or her term of imprisonment (whichever is less).

•   “Family circumstances” would apply to the incapacitation of the caregiver of the defendant’s minor child, or to the incapacitation of the defendant’s spouse or registered partner when the defendant would be the only available caregiver.

•   “Other reasons” permit the Bureau of Prisons to determine that, in any particular defendant’s case, an extraordinary and compelling reason other than (or in combination with) a reason identified by the Commission exists.

So this sounds like great news, right? It does, except for one fly in the ointment. BOP witnesses told the Commission last February that only the BOP Director has the right to define what constitutes “extraordinary and compelling reasons” under the statute, and the Sentencing Commission should butt out. For that matter, the BOP said, it rejected the DOJ inspector general’s critical report in May 2015 that the Bureau had “poorly managed” the compassionate release program, and had eligibility requirements for both medical and non-medical provisions that were “unclear” and “confusing.”

The proposed Guidelines amendment “encourages the Director of the Bureau of Prisons to file a motion if the defendant meets any of the circumstances” defined by the Guidelines, and to let the courts decide “whether the circumstances warrant a reduction.” In other words, the BOP filing should be automatic whenever an inmate is eligible, rather than the discretion-ridden system used today.

Unfortunately, for the BOP to follow the Guidelines’ suggestion (and thus improve on its 7% approval rate on compassionate release requests since 2013), the agency will first have to surrender its current position that it alone may decide whether an inmate is entitled to compassionate release.

Sentencing Commission, 2016 Proposed Amendments                                 to Sentencing Guidelines (Apr. 15, 2016)

U.S. Department of Justice, Office of the Inspector General, The Impact of the Aging Inmate Population on the Federal Bureau of Prisons (May 2015)

IS SENTENCING REFORM BEING WATERED DOWN?

The Sentencing Reform and Corrections Act of 2015, before the Senate as S. 2123, and before the House as H.R. 3713, remained stalled last week, with the Senate bill holding at 28 cosponsors. The House version of the bill picked up one additional sponsor – a Democrat from Iowa – and now has 64.

The liberal political magazine The American Prospect last week admitted that “the death of Supreme Court Justice Antonin Scalia and the subsequent battle over President Obama’s pick to replace him have distracted Republicans from sentencing reform,” but nevertheless said that “although momentum has slowed on a plan that could have attracted strong bipartisan support, criminal justice reform advocates believe that the lull may help federal lawmakers craft a more popular package.”

Last week, lawmakers got a sense of what that “more popular package” may look like, as some Senate Republicans released a proposal that would substantially water down the retroactive relief contained in S. 2123 as currently written.

The conservative newspaper Washington Examiner reported that Senate Majority Whip John Cornyn (R-Texas), Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa), and Sen. Mike Lee, (R-Utah), the leading architects of the bill, are circulating updated version of the legislation and a background memo to their Republican colleagues who they see as most likely to back the legislation.

There are two problems: First, this is an election year. Second, we have Willie Horton. Horton was a Massachusetts murderer serving natural life who was released for a weekend furlough back in 1986. Unsurprisingly, he never returned to prison, and later committed rape and robbery in Maryland. During the 1988 presidential campaign, Republicans hung the blame for Willie Horton’s release on Democratic presidential candidate Michael Dukakis, who was governor of Massachusetts at the time (despite the fact the furlough was not his program). Since that time, “Willie Horton” has become shorthand for every politician’s fear that any criminal justice reform he or she has supported will release a Willie Horton, and the blame will blow back during the reelection campaign.

As we reported in January, the Sentencing Reform and Corrections Act already has its own Willie Horton, a Columbus, Ohio, man named Wendell Callahan. In 2007, a federal court sentenced Callahan to 150 months for selling crack. Wendell’s time was first cut to 110 months because of the 2007 reduction in the crack Guidelines, and then – three years later –another 10 months were lopped off because of the second drug guideline reduction. Callahan was released in August 2014.

In January, Wendell was charged with stabbing his ex-girlfriend and her two young daughters to death. The Columbus Dispatch reported that Wendell “likely would have been deep into a 12 1/2-year federal prison sentence if sentencing guidelines for convicted crack dealers had remained unchanged.”

“Every one of us who votes to release violent criminals from prison prior to the expiration of their sentence can fully expect to be held accountable by our constituents,” Sen. Ted Cruz (R-Texas) said last year during a Judiciary Committee hearing on the bill. Lee and other proponents of the bill say that charge was unfair, in part because the prisoners who applied for early released had to win the approval of a judge. “It is simply incorrect to say that this suddenly releases a bunch of violent criminals,” Lee replied.

Nevertheless, the document circulated last week proposes changes designed to blunt any “Willie Horton” attacks. Most notably, the proposal deletes a section of the bill that would have both lowered mandatory minimum sentences from 15 to 10 years under the Armed Career Criminal Act and made the change retroactive to prisoners already convicted.

Also, the bill as written would change the law to require that the increased penalties for a second conviction for carrying a gun during a crime (18 U.S.C. § 924(c)) only apply after a prior conviction.  Right now, if someone carries a gun during a drug sale today, and then does it again tomorrow, he faces a mandatory minimum of 30 years – five for today’s gun and 25 for tomorrow’s gun. The proposed bill makes clear that a defendant must be convicted for the first 924(c) before a second 924(c) could trigger a higher mandatory minimum. The bill as written would let people who are serving such sentences apply for a sentence reduction, but the new proposal would change the bill to “prohibit any retroactive relief for any offender convicted of any serious violent felony,” according to the background memo. That leaves reformers in the uncomfortable position of arguing that a low-level drug dealer armed with a weapon shouldn’t count as a violent offender, because the law generally reserves that title for people who commit violent acts.

Even the watered-down bill may not go far enough for Republican opponents. A Republican senate aide told The Daily Caller last week that Callahan had not been classified as a violent offender, so the idea that the revised legislation being proposed “would somehow prevent the early release of violent criminals like Wendell Callahan is an affront to the facts.”

Opponents complain that “the bill will over-expand judicial discretion to apply the leniency of the ‘safety valve’ to major drug traffickers, including those with multiple prior criminal convictions. Under current law, the safety valve permits minor participants in drug trafficking crimes with minor criminal records to reduce their sentencing exposure to avoid mandatory minimum sentences, even if they choose not to cooperate.”

Legal Information Services Associates provides research and drafting services to lawyers and inmates. With over 20 years experience in post-conviction motions and sentence modification strategy, we provide services on everything from direct appeals to habeas corpus to sentence reduction motions to halfway house and home confinement placement. If we can help you, we’ll tell you that. If what you want to do is futile, we’ll tell you that, too.

If you have a question, contact us using our handy contact page. We don’t charge for initial consultation. 

Would you like a copy of this newsletter in PDF format?  Click here.

JUDGE DECLARES FLYING SPAGHETTI MONSTER NOT A DEITY

Steven Cavanaugh, a Nebraska state inmate, sued under the 1st Amendment and the Religious Land Use and Institutionalized Persons Act because officials wouldn’t let him wear pirate duds, worship the Flying Spaghetti Monster (FSM), or take part in other Pastafarian pleasures. He said that the prison was violating his constitutional right to practice his religion.

Last month, U.S. District Judge John Gerrard (already in the news for his opposition to mandatory minimum sentences) denied Cavanaugh’s motion: “What drives the FSM’s devout followers, aka Pastafarians?” the Judge’s opinion asked. “Some say it’s the assuring touch from the FSM’s Noodly Appendage. There are those who love the worship service, which is conducted in Pirate-Speak and attended by congregants in dashing buccaneer garb. Still others are drawn to the Church’s flimsy moral standards, religious holidays every Friday, and the fact that Pastafarian Heaven is way cooler. Does your Heaven have a Stripper Factory and a Beer Volcano? Intelligent Design has finally met its match—and it has nothing to do with apes or the Olive Garden of Eden.”

But after examining the elements constituting religious beliefs, the Judge decided that Pastafarianism is not a religion, only a parody made to look like one. “This is not a question of theology,” the Court wrote. “It is a matter of basic reading comprehension… it is evident to the Court that FSMism is not a belief system addressing ‘deep and imponderable’ matters: it is… a satirical rejoinder to a certain strain of religious argument… Nor, however, does FSMism advocate for humanism or atheism… Those belief systems, although not theistic, still deal with issues of ‘ultimate concern’ and take a position ‘on religion, the existence and importance of a supreme being, and a code of ethics.’ FSMism takes no such position: the only position it takes is that others’ religious beliefs should not be presented as ‘science.’ Despite touching upon religion, that is a secular argument.”

Cavanaugh v. Bartelt, Case No. 4:14-CV-3183                                          (D.Neb. Apr. 12, 2016)

Vol. 2, No. 16

This week:

White House Promises “All-Nighter” On Commutation Petitions

Playing the Percentages

Report Suggests BOP Saving $2 Billion From 2014 Guideline Reduction

Why You Should Have a Lawyer – Judge Convicted of Ordering Pro Se Defendant Stunned

Minnesota Towns Ban Sex Offenders in Wake of Federal Court Ruling

Because We Say So

Government Challenges EDNY Expungement of Conviction

Is the Bloom Off the Sentencing Reform Rose?

WHITE HOUSE PROMISES “ALL-NIGHTER” ON COMMUTATION PETITIONS

White House Counsel Neil Eggleston said last week he told his staff “no more eating, sleeping or drinking until we get all these commutations done,” in response to criticism that the Obama administration has done little to address a backlog of 9,000 clemency petitions.

Obama has commuted the sentences of 248 federal prisoners – mostly low-level drug defendants – including 61 at the end of March. The commutations have come in small batches, with last December’s 95 commutations the biggest to date. Last week, Eggleston said he believes the “infrastructure is now very much in place” to file and process clemency petitions.

So far, few federal prisoners have met the Administration’s strict criteria for clemency, which include serving at least 10 years in prison and high standards for nonviolence.

Eggleston said that most of the problems cited two months ago in a sharply-worded resignation letter by DOJ Pardon Attorney Deborah Leff have been addressed, and he rejected a recent New York Times editorial claim that the pardon process should be moved out of DOJ because federal prosecutors are trained to put people in jail, not get them out. “They’re quite committed to this,” Eggleston said.

Politico, White House promises to speed up clemency program                (Apr. 1, 2016)

RETROACTIVITY DATA SUGGESTS BOP SAVING $2 BILLION FROM 2014 2-LEVEL GUIDELINE REDUCTION

The U.S. Sentencing Commission’s released a report last Friday finding that Amendment 782 – the Commission’s latest 2-level reduction for most drug offenses – has reduced sentences for 26,850 federal prisoners by an average of two years each.

Ohio State law professor Doug Berman estimated that Amendment 782 retroactivity is “on track to save federal taxpayers around $1.9 billion.” He argued last Friday in his sentencing blog that “as federal statutory sentencing reforms remained stalled in Congress and as Obama continues to be cautious in his use of his clemency power, this data provides still more evidence that the work of the U.S. Sentencing Commission in particular and of the federal judiciary in general remains the most continuously important and consequential force influencing federal prison populations and sentencing outcomes.”

U.S. Sentencing Commission, 2014 Drug Guidelines                 Amendment Retroactivity Data Report (Apr. 8, 2016)

PLAYING THE PERCENTAGES

Eladio Marroquin-Medina did what most drug defendants end up doing – he helped the government out, and got a 72-month sentence instead of the 87 to 108 months the Guidelines recommended.

Happily for Eladio, he later got a 2-level reduction under Guidelines Amendment 782. The district court recalculated his new advisory Guidelines range as 70 to 87 months, and then applied the same percentage reduction he had gotten for substantial assistance before, giving him a new sentence of 58 months.

Unhappily for Eladio, the district court did not apply his “level-based” approach. His original sentence had been reduced three Guidelines levels, and Eladio thought his new lower range should be reduced by three levels, too. This would have given him a sentence as low as 51 months. The district court refused, believing that it only had the authority to use a percentage-based approach under U.S.S.G. Sec. 1B1.10(b)(2)(B).

A week ago, the 11th Circuit ruled for Eladio. It held the Guidelines just grant a sentencing court the discretion to comparably reduce a defendant’s sentence where that defendant previously received a Sec. 5K1.1 departure at his original sentencing. “If a sentencing court chooses to exercise its discretion and make a comparable reduction,” the Court said, “it is not bound to use the percentage-based approach – or any one specific method – to calculate the comparable reduction. Rather, the court may use any of the reasonable methods that were available to calculate the original Sec. 5K1.1 departure, so long as they result in a comparable reduction.”

United States v. Marroquin-Medina, Case No. 15-12322                       (11th Cir. Apr. 1, 2016)

WHY YOU SHOULD HAVE A LAWYER – JUDGE CONVICTED OF ORDERING DEPUTY TO STUN PRO SE DEFENDANT

A former Maryland judge who ordered a sheriff’s deputy to set off a defendant’s “stun-cuff” ankle device was sentenced last week to anger-management classes a $5,000 fine.

Judge Robert C. Nalley will also spend a year on probation. Nalley pleaded guilty earlier this year to a civil rights violation for ordering a deputy to activate the “stun-cuff.” that a defendant appearing before him was wearing around his ankle. The defendant, who was acting as his own lawyer, was before Nalley in July 2014 for jury selection and had failed stop speaking when the Judge ordered him to do so.

After he was shocked, the defendant fell to the ground screaming. Prosecutor Kristi O’Malley noted that the defendant remained courteous at all times, but the Judge “very quickly grew impatient,” and that his use of the stun-cuff was “highly disproportionate” for “nothing more than verbal interruptions.”

Nalley, who was a judge in Charles County from 1988 to September 2014, did not apologize in court but did say he had made an “error in judgment.”

AP, Ex-judge fined $5,000 for ordering                                                    defendant shocked (Mar. 31, 2016)

MINNESOTA TOWNS BAN SEX OFFENDERS IN WAKE OF FEDERAL COURT RULING

Minnesota has seen a dramatic rise in municipal laws restricting where sex offenders can live after they have served their terms, setting up a fight at the State Capitol. Some state legislators want to give local communities more control to enact new restrictions, as communities brace for the release of more sex offenders from forced civil commitment in response to a federal ruling that declared the state’s program unconstitutional.

In Karsjens v. Jesson, Judge Donovan Frank ruled last year that the Minnesota Sex Offender Program is essentially permanent confinement with no clear path to release.

A group of legislators has proposed a measure allowing cities and counties to enact tougher laws to keep Level 3 sex offenders — considered the most likely to reoffend — away from schools, parks and other places frequented by children. The chief sponsor says he hopes the bill will give the towns stronger legal standing to defend their sex-offender ordinances in court.

Minneapolis Star-Tribune, Cities are rushing to restrict sex offenders
(Apr. 4, 2014)

Karsjens v. Jesson, Case No. 11-3659 (D. Minn. Jun. 17, 2015)

BECAUSE WE SAY SO

The request was unremarkable. An inmate wanted a copy of his plea agreement unsealed. The district court refused, citing its universal policy to make such agreements available only to the parties, explaining cryptically that “the Court has reasons to do what it’s done.”

Ten days ago, the 6th Circuit reversed. Noting that “plea agreements play a central role in our criminal justice system… What has been said of the plea bargaining process can also be said of the plea agreement itself: It is not some adjunct to the criminal justice system; it is the criminal justice system.” The Court argued public access to plea agreements “plays a significant role in monitoring the administration of justice by plea.” That makes plea agreements “the quintessential judicial record, entitled to the protection of the First Amendment.”

The Court of Appeals said plea agreements may be sealed “only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.” The district court’s saying only that “it has its reasons” did not offer “findings specific enough that a reviewing court can determine whether the closure order was properly entered… The district court’s ruling, based on a blanket policy, does not satisfy either the constitutional or common law standards.”

United States v. DeJournett, Case No. 14-4204 (6th Cir.,                       Mar. 30, 2016)

GOVERNMENT CHALLENGES EDNY EXPUNGEMENT OF CONVICTION

Federal prosecutors last week urged the 2nd Circuit Court of Appeals to overturn an E.D.N.Y. district judge’s expungement of an unemployed woman’s decade-old conviction, while her attorneys argued it would be a mistake for the court to depart from existing case law.

Last summer, Judge John Gleeson expunged the conviction of a defendant known in the pleadings as Jane Doe, who had been unable to get a job in the wake her sentence for playing a minor role in an insurance fraud 10 years before.

During oral argument, Circuit judges put both sides to the test with questions on when a judge’s jurisdiction ceased, the difference between arrest and conviction records, and whether Jane Doe had adequate remedies through state laws forbidding job discrimination based on one’s criminal history.

There is no general federal statute for expungement, but a 1977 2nd Circuit ruling – United States v. Schnitzer – said expungement power is within a judge’s “equitable discretion.” Schnitzer held it should only be granted in “extreme circumstances.” Gleeson said Doe, with no subsequent criminal history and a repeatedly unsuccessful effort to get work, fit the definition.

Judge Gleeson, now in private practice, held the public was better served if Doe was a working member of society than if her conviction was a matter of public record. He wrote he had sentenced Doe “to five years of probation supervision, not to a lifetime of unemployment.”

New York Law Journal, Gleeson Expungement in ‘Doe’ Is                          Put to the Test at the Circuit (Apr. 8, 2016)

IS THE BLOOM OFF THE SENTENCING REFORM ROSE?

Things are not looking rosy for the Sentencing Reform and Corrections Act of 2015, before the Senate as S. 2123, and before the House as H.R. 3713. The Marshall Report said last Friday that “there is a growing sense that a) Congress is unlikely to pass anything this year worthy of being called reform, and b) it might be better to start over in 2017.”  Many criminal justice reform advocates – and more than a few inmates – have heard that refrain before.

The Sentencing Reform and Corrections Act of 2015 was predicted to be a defining issue of this Congress, a rare unifying moment for Republicans, Democrats and the President. Instead, the members of the Judiciary Committee who wrote the criminal justice package are now at war over whether to consider Mr. Obama’s nominee to the Supreme Court, Judge Merrick B. Garland.

The New York Times reported last Thursday that the feud over the nomination has overshadowed the effort to pass sentence reform. Supporters of reform are worried about the bill’s fate, especially with the Senate about to turn to time-consuming spending bills, and with the election-year calendar approaching a point where only the most essential work gets done.

“If this is going to happen along with 12 appropriations bills, we are going to have to elbow our way into the queue,” Sen. Richard Durbin (D-Illinois), one of the bill’s authors, said. “The ball is now on the Republican side of the net.”

The Capitol Hill newspaper Roll Call reported last week that Administration officials are “quite optimistic” that the Senate will act on a criminal justice overhaul bill “quite soon,” according to White House Counsel Neil Eggleston. But Senate leaders who have been working closely with White House officials, sounded more cautious. “It doesn’t seem to be moving,” said Judiciary member Sen. Jeff Flake (R-Arizona) admitted. “We’ve got to get agreement on some things so it doesn’t take much time,” he said.

Meanwhile, criminal justice issues are generating some heat for the Democrat front-runner. Former President Bill Clinton spent more than 10 minutes last Thursday confronting protesters at one of his wife’s campaign rallies in Philadelphia over criticisms that a 1994 crime bill he approved while president led to a surge in the imprisonment of black people.

The former President gave as good as he got. Clinton said the bill lowered the country’s crime rate, which benefited African-Americans, achieved bipartisan support, and diversified the police force. He told one protester, “I don’t know how you would characterize the gang leaders who got 13-year-old kids hopped up on crack and sent them out onto the street to murder other African-American children … Maybe you thought they were good citizens … You are defending the people who kill the lives you say matter.”

Legal Information Services Associates provides research and drafting services to lawyers and inmates. With over 20 years experience in post-conviction motions and sentence modification strategy, we provide services on everything from direct appeals to habeas corpus to sentence reduction motions to halfway house and home confinement placement. If we can help you, we’ll tell you that. If what you want to do is futile, we’ll tell you that, too.

If you have a question, contact us using our handy contact page. We don’t charge for initial consultation. 

Would you like a copy of this newsletter in PDF format?  Click here.

Vol. 2, No. 15

This week:

Hands Off My Money!

Scarlet Letter Lawsuit Moves Forward

Reading the Tea Leaves on Johnson Retroactivity

You Should Have Told Me I Could Say Something

Dog Bites Man: DOJ says BOP Medical Care Not “Adequate”

Politics and Sentence Reform

HANDS OFF MY MONEY!

Sila Luis was accused of swindling the Government in a $45 million health care scam. She intended to hire a lawyer with her own money – cash she had legitimately earned outside of the alleged fraud – but the government convinced a court to freeze all of her assets (not just the money it said she had stolen), because if she was convicted, Luis would need her legit cash to pay restitution.

The government commonly gets courts to issue pre-trial freezes on assets it says were earned from crime. The theory is that those ill-gotten sums never really belonged to a defendant to begin with. But the Luis asset freeze was different – everything she owned (legal or not) was seized.

Luis argued that freezing her lawfully earned assets denied her 6th Amendment right to hire the attorney of her choice. Last Wednesday, the Supreme Court of the United States (SCOTUS) agreed, putting a stop to the government’s overreach.

The justices said that the difference between the usual pretrial asset freeze and Luis’s case “consists of the fact that the property here is untainted; i.e., it belongs to the defendant, pure and simple. In this respect it differs from a robber’s loot, a drug seller’s cocaine, a burglar’s tools, or other property associated with the planning, implementing, or concealing of a crime. The Government may well be able to freeze, perhaps to seize, assets of the latter, “tainted” kind before trial. As a matter of property law the defendant’s ownership interest is imperfect. The robber’s loot belongs to the victim, not to the defendant … The property at issue here, however, is not loot, contraband, or otherwise “tainted.” It belongs to the defendant.”

The opinion included a troubling observation for federal defendants who are not sitting on a pile of legal cash. It suggested that if the government’s position was upheld, innocent defendants could be stripped of everything before trial, and “would fall back upon … overworked and underpaid public defenders … Only 27 percent of county-based public defender offices have sufficient attorneys to meet nationally recommended caseload standards. And as one amicus points out, ‘[m]any federal public defender organizations and lawyers appointed under the Criminal Justice Act serve numerous clients and have only limited resources’.”

“The upshot,” the opinion concluded, “is a substantial risk that accepting the Government’s views would – by increasing the government-paid-defender workload – render less effective the basic right the Sixth Amendment seeks to protect.”

So the Supreme Court acknowledged that throwing Luis and others like her to the public-defender system would weaken their 6th Amendment rights to effective counsel. But what does that say about the constitutional rights of the vast majority of federal defendants who had no other choice?

Luis v. United States, Case No. 14-419 (Mar. 30, 2016)

SCARLET LETTER LAWSUIT MOVES FORWARD

A new federal law requiring the State Department to mark the passports of certain convicted sex offenders faced its first test in federal court on Wednesday.

A group of convicted sex offenders has asked a federal district court in Oakland, California, to block enforcement of the law pending the outcome of a February lawsuit they filed that challenges the law’s constitutionality. The Inter-national Megan’s Law to Prevent Demand for Child Sex Trafficking requires the State Department to add a “unique identifier” to passports of Americans con-victed of sex crimes involving minors, and directs U.S. officials to alert other governments when those Americans travel abroad.

“For the first time in the history of this nation,” the lawsuit alleges, “the United States Government will publicly stigmatize a disfavored minority group using a document foundational to citizenship.” The plaintiffs argue the law violates the First Amendment by forcing people convicted of sex offenses to bear the equivalent of a “Scarlet Letter” on their passports.

During the hearing, U.S. District Judge Phyllis J. Hamilton seemed skeptical of the challengers’ arguments that marking the passports would expose travelers to the risk of physical harm and imply that the holders had engaged in child sex trafficking or child sex tourism. “I’m not sure how you make that leap, that that’s what the message is,” the judge said. “Where does that come from?”

The plaintiffs want the judge to grant an injunction against enforcing the law while the lawsuit goes forward. The DOJ argues that an injunction is premature, because rules to implement the new law have not yet been written.

Wall Street Journal, Law creating passport mark for sex offenders faces first challenge (Mar. 29, 2016)

Associated Press, Attorney: Sex offender passport marker would be dangerous (Mar. 31, 2016)

READING THE TEA LEAVES ON JOHNSON RETROACTIVITY

Whether the holding in Johnson v. United States will benefit the thousands of people doing extra time under the Armed Career Criminal Act or Guidelines “career offender” designations lurched closer to a decision last week, as the Supreme Court heard oral arguments in Welch v. United States.

The whole question may seem confusing. Petitioner Welch thinks Johnson should retroactively apply to him. So does the government. But nothing is simple for SCOTUS. The underlying issue is important enough to be fairly argued, so the Court appointed an attorney to play devil’s advocate, and contend that Johnson should not be retroactive because it’s holding was purely procedural, not substantive.

Afterwards, one commentator suggested that the oral argument presaged a “likely decision in favor of retroactivity,” a view that Families Against Mandatory Minimums (FAMM) immediately trumpeted to inmates in an email. The court observer, law professor Rory Little, wrote for the website SCOTUSBlog (which is the “go-to” source for Supreme Court information on the Web) that “while it is not possible to describe the intricacies of retroactivity doctrine here — let alone wise if we want to keep our readers awake — it looks like last Term’s decision in Johnson v. United States will be declared to apply retroactively for all purposes, including on first and even successive (assuming they are timely filed) habeas corpus petitions.”

It’s a fool’s errand to try to read how the Court is going to rule based on what is said at oral argument. And the intricacies of the retroactivity doctrine – whether a change in the law is procedural or substantive – first articulated a generation ago in Teague v. Lane are Gordian. Law prof Douglas Berman wrote in his sentencing blog last Thursday that “the Welch oral argument leaves me concerned that the current Justices are going to be content to apply existing Teague doctrines in a quirky manner to a quirky case …”

Nevertheless, the Justices expressed amazement that anyone could see Johnson as a merely procedural decision. Justice Ginsburg asked “how can it not be substantive when, under one rule, the sentence range goes minimum of 15 years up to life, and the other reading, it’s zero to ten years? I can’t imagine anything more substantive than five extra – a minimum of five extra years in prison.” And Justice Breyer said, “I thought the point of Teague was that if the statute under which they are convicted doesn’t exist anymore because … it was an unconstitutional statute­­ they are serving time under a statute which was then and is now nonexistent and, therefore, they get out.”

Prof. Little wrote that “the decision in this case is likely to be simply one more precedent in the wavering doctrinal line … But convicted federal felons whose sentences are reduced by five or more years will not care about the intricacies, while young law professors aspiring to tenure will have new grist for their mills.”

A decision in Welch – which will probably be favorable to retroactivity – should be released by the end of June.

Welch v. United States, Case No. 15-6418                                                          (oral argument Mar. 30, 2016)

YOU SHOULD HAVE TOLD ME I COULD SAY SOMETHING

Back in 2009, mariner José Luis Casiano-Jiménez thought things were breaking his way. He had signed on a merchant ship in a South American port as an “able-bodied seaman,” sort of a maritime worker bee. Before the voyage had progressed much, he was promoted to first officer due to an unexpected need for a replacement. This is sort of like hiring on at the bank as an assistant teller, and the next day becoming vice president.

Things didn’t stay rosy, however, when the ship arrived in Puerto Rico, and everyone on board was arrested for importation of drugs. At the trial, the seamen were acquitted, but the jury wasn’t so kind to the ships’ officers. During the trial, the defendants met in a group with their lawyers, where the attorneys “explained to them . . . that it would not be advisable for any of them to take the stand” and that the lawyers had collectively agreed that a single expert would present the rudiments of a “lack of knowledge” defense on behalf of all the defendants.

José, of course, was among the convicted. After he lost his appeal, he filed a motion under 28 U.S.C. § 2255, in which he claimed that his lawyer had not advised him of his right to testify in his own behalf. The trial court threw the motion out as “inherently incredible,” despite the fact that José’s attorney backed up his client as to what had happened.

Last week, the 1st Circuit reversed. Holding that “there must be a focused discussion between lawyer and client” about the defendant’s right to testify, and “that discussion must — at a bare minimum — enable the defendant to make an informed decision about whether to take the stand.” Here, the Court of Appeals said, “the assembled defense lawyers told the assembled defendants that the lawyers ‘thought an expert would be the best way . . . to testify on all their behalf’ and explained to them that ‘it was a consensus . . . it would not be advisable for any of [the defendants] to take the stand’. But that consensus was a consensus only among the lawyers. During the meeting, no one told the petitioner, in words or substance, that he had a right to testify; and no one bothered to obtain his informed consent to remaining silent … The most that can be said is that the defense lawyers unilaterally decided that none of the defendants would testify and presented that decision to the defendants as a fait accompli.”

The 1st Circuit found that the error had prejudiced José, because the evidence was so close that “his testimony could have been a game-changer.” Noting that a defendant’s testimony as to non-involvement should not be disregarded lightly, the Court noted that he had never sailed with the crew before, never sailed on that ship before, and had signed on only as a seaman. “These facts would have bolstered the petitioner’s claim that he was unaware of the presence of any contraband on the ship,” the Court held. “Given this tableau, prejudice is obvious.”

The Court vacated José’s conviction.

Casiano-Jiménez v. United States, Case No. 13-1496                                 (1st Cir.  Mar. 29, 2016)

DOG BITES MAN: BOP MEDICAL CARE ISN’T ‘ADEQUATE’

In journalism, a “dog bites man” story is one that is not news at all, something that’s so commonplace that everyone knows it already. So it is with last week’s report from the Department of Justice Office of Inspector General, revealing that the BOP suffers from consistently understaffed health facilities, and mismanages the health services staff it does have, resulting in medical care for inmates that is inadequate.

The OIG’s conclusions won’t come as a surprise to inmates. The report found that lousy pay and benefits leaves the BOP unable to hire enough medical professionals. As a result, persistent health staffing shortages have left some BOP institutions with staff vacancy rates of 40% or higher.

A former BOP official told auditors that medical staffing vacancies have reached a “crisis level” at some institutions. “Although BOP policy states that the vacancy rate shall not exceed 10 percent during any 18-month period, we found that only 24 of 97 BOP institutions had a medical staffing rate of 90 percent or higher as of September 2014,” the review found. Making matters worse, the OIG said, the BOP does not competently manage the staff it has or tried to address the personnel shortage in a coordinated, strategic way.

Office of the Inspector General U.S. Department of Justice,            Review of the Federal Bureau of Prisons’ Medical Staffing Challenges (Mar. 28, 2016)

POLITICS AND SENTENCE REFORM

The Sentencing Reform and Corrections Act of 2015, before the Senate as S. 2123, and before the House as H.R. 3713, remained stalled last week, with the Senate bill holding at 28 cosponsors, while the House measure remained at 63.

Senate Majority leader Mitch McConnell (R-Kentucky) remained in Kentucky last week, but sentencing reform followed him there. Last Tuesday, Kentucky sentence reform advocates held a rally outside McConnell’s Lexington office to demand that he bring S. 2123 to a vote.

House Speaker Paul Ryan (R-Wisconsin) recently promised to bring H.R. 3713 up for a vote, but McConnell has not made the same commitment. The advocates delivered a Drug Policy Alliance petition signed by over 30,000 people, calling for McConnell to schedule a vote on the bill.

Meanwhile, last Monday, the National Urban League – a civil rights organization that advocates on behalf of African Americans against racial discrimination – delivered a surprising and striking rebuke to sentence reform legislation. In a detailed letter delivered to the U.S. Sentencing Commission, National Urban League President Marc Morial demanded that Congress delay action on the Sentencing Reform and Corrections Act of 2015 until the Sentencing Commission delivers detailed data on the impacts S. 2123 and H.R 3713 would have on Blacks and Hispanics before giving support.

Ironically, this setback for sentencing reform – coming as it does from a strange source – occurred even as MSR Online, a Minnesota-based African American news service, complained on Thursday that sentencing reform legislation had become bogged down in politics.

As we reported, President Obama granted commutation to 61 more federal prisoners last Wednesday. Some observers noted he was acting even “as sentencing reform stalls.”

Despite the cheerleading led by the White House press office, some commentators aren’t giving the President chops for the commutations. Mark Osler, a law professor and former federal prosecutor, said in the New York Times last Friday that with 9,000 petitions still pending, the Administration has nothing to crow about. “The problem here is that too many cases can’t be adequately considered by the president because of a sluggish and often intransigent review process. Clemency petitions undergo no fewer than seven levels of review, four of them within the Department of Justice. Within the Justice Department, clemency petitions run not only through the Office of the Pardon Attorney but also through the office of the deputy attorney general. When the pardon attorney, Deborah Leff, resigned in January, she complained in her letter of resignation that meritorious clemency cases had been thwarted by those above her. She noted in particular that some of her own recommendations had been overruled by the deputy attorney general, Sally Quillian Yates.”

Osler noted that the process includes the opinion of the federal prosecutors who brought the case in the first place. “But prosecutors are the wrong people for the task of vetting clemency cases. I was a federal prosecutor for five years … The prospect of being wrong — and a clemency initiative like Mr. Obama’s can feel like a judgment that prosecutors were wrong — can be a lot to bear. We should not be surprised if, when it comes to Mr. Obama’s clemency initiative, prosecutors systematically resist what is, in effect, an indictment of their work.”

Osler suggested that the DOJ Pardon Attorney be put at the top of the clemency process instead of the bottom, and report directly to the president. “That would allow an independent but thorough review of clemency petitions free from the influence of career prosecutors.”

Legal Information Services Associates provides research and drafting services to lawyers and inmates. With over 20 years experience in post-conviction motions and sentence modification strategy, we provide services on everything from direct appeals to habeas corpus to sentence reduction motions to halfway house and home confinement placement. If we can help you, we’ll tell you that. If what you want to do is futile, we’ll tell you that, too.

If you have a question, contact us using our handy contact page. We don’t charge for initial consultation. 

Would you like a copy of this newsletter in PDF format?  Click here.

Vol. 2, No. 14   

Extra – Wednesday, March 30, 2016

OBAMA COMMUTES 61 DRUG SENTENCES

 

President Barack Obama commuted the sentences of 61 prisoners today (Wednesday, March 30, 2016), as a continuation of an effort to more aggressively use the commutation power, particularly as it relates to low-level drug offenders.

The names of the prisoners receiving commutations have not yet been released.

“Despite the progress we have made, it is important to remember that clemency is nearly always a tool of last resort that can help specific individuals, but does nothing to make our criminal justice system on the whole more fair and just,” White House counsel Neil Eggleston wrote in a blog post that went online Wednesday morning.

“Clemency of individual cases alone cannot fix decades of overly punitive sentencing policies. So while we continue to work to resolve as many clemency applications as possible — and make no mistake, we are working hard at this — only broader criminal justice reform can truly bring justice to the many thousands of people behind bars serving unduly harsh and outdated sentences,” Eggleston wrote.

The announcement was intended to blunt a rash of criticism over the past week about the failure of the Administration’s pardon process to live up to its hype.

When the Dept. of Justice’s new acting pardon attorney, former AUSA Robert Zauzmer, took office last month, he found a backlog of over 9,000 clemency petitions awaiting initial processing. Most were the byproduct of Clemency Project 2014, established with great fanfare by DOJ to process additional applications from federal prisoners seeking reductions of unjustifiably long drug sentences.

The Washington Post reported January 19th that his predecessor, Deborah Leff, quit over frustrations with a lack of resources. In her resignation letter, just obtained yesterday by USA Today under a Freedom of Information Act request, Leff accused the Obama administration of telling DOJ attorneys to neglect applications for presidential pardons to give priority to the Justice Department’s initiative to release low-level offenders from prison.

Leff’s resignation letter suggested a broken bureaucratic process at odds with Obama’s announced aim of exercising his pardon power “more aggressively” in the final months of his presidency. She wrote that the administration’s focus on the clemency initiative at the expense of traditional pardons and commutations “means that the requests of thousands of petitioners seeking justice will lie unheard.”

Some commentators in the Washington Post last Friday wondered whether Obama was ever serious about Clemency 2014. The rules for commutation requests that even make it to the overburdened pardons office are inexcusably discouraging. The worst is that inmates must have served at least 10 years of their sentence. Other rules hold that they must not have “a significant criminal history,” they must be nonviolent, low-level offenders, and they must be serving a sentence harsher than they would have gotten if convicted of the same offense today. Those who fall “outside of this initiative,” according to DOJ, can still seek clemency under the old rules if their applications are “especially meritorious.”

Because of this, the Washington Post reported last week, Obama’s clemency record makes him one of the least merciful presidents in history. He has granted just 70 pardons – the lowest number of any full-term president since John Adams – and 187 commutations of sentence (248 with today’s announcement). The White House website today was trumpeting that Obama has issued more commutations than the last six presidents combined. However, it fails to mention that the number of pardons issued is a low not equaled since the 1790s.

Meanwhile, over 1,600 pardon petitions have been denied (more than five of the previous six presidents), as well as more than 8,000 commutation requests (a new record). An additional 3,400 requests have been “closed without presidential action.”

Obama’s record is all the more questionable because he has promised more while delivering less than any president in history. In 2014, then-Attorney General Eric H. Holder Jr. encouraged federal prisoners to seek relief, saying there were “still too many people . . . sentenced under the old regime” needing commutation. Holder said the White House had “indicated” that it wanted to “consider additional clemency applications to restore a degree of justice, fairness, and proportionality for deserving individuals who do not pose a threat to public safety.”

However, the Post reported last week, Clemency Project 2014 has become a bureaucratic disaster, assigned to volunteer lawyers and law students with little experience in dealing with the federal criminal justice system.

The White House has announced that it will host a briefing titled Life After Clemency with advocates, academics, and Administration officials to discuss ideas on the President’s clemency initiative and ways to improve paths to reentry. In addition to officials from the White House and the Department of Justice, experts, academics, and commutation recipients will share their expertise and insights on returning to society after years behind bars.

USA Today, Obama issues 61 commutations (March 30, 2016)

Washington Post, On pardons, Obama could go down as one of the most merciless presidents in history (March 25, 2016)

Legal Information Services Associates provides research and drafting services to lawyers and inmates. With over 20 years experience in post-conviction motions and sentence modification strategy, we provide services on everything from direct appeals to habeas corpus to sentence reduction motions to halfway house and home confinement placement. If we can help you, we’ll tell you that. If what you want to do is futile, we’ll tell you that, too.

If you have a question, contact us using our handy contact page. We don’t charge for initial consultation. 

Vol. 2, No. 13

This week:

The Kentucky Two-Step
FOIA Information Isn’t Any Freer Than You Are
Ninth Circuit Judge Calls Out Prosecutors
2255 Prejudice Comes Cheap In The 5th Circuit
Legal Briefs –
     Me and My Big Mouth
     Try to Save Me Money? Take That!
     You’re Not Guilty Enough
Sentence Reform Lays an (Easter) Egg

DANCING THE KENTUCKY TWO-STEP

The Speedy Trial Act requires that a defendant be brought to trial within 70 days of indictment (subject to a lot of exceptions and exclusions). But what’s a court to do when there are no exclusions left, and the 70 days are up?

The 6th Circuit last week told an Eastern District of Kentucky court what it could not do. Jason Brown was a defendant with a definite idea about his rights under the STA. When the deadline loomed, but the attorneys had conflicts and a witness was not available for a couple of weeks, he refused to go along with a continuance. So the judge started the trial, picked a jury, and then recessed for a few weeks until everyone’s schedule was clear.

Problem solved? Jason didn’t think so, and the Circuit agreed. In a lengthy opinion, the Court concluded that the “trial did not commence on September 8, despite the commencement of voir dire, because the court employed the start-and-stop plan with the intent to pay lip service to the Act.” The appeals panel concluded that none of the days after September 8 were excludable from the STA, and thus Jason’s rights were violated.

The 6th Circuit noted in passing that the district court seemed to believe that Brown had to show “prejudice” to prevail on his STA claim. The Court rejected that, holding that the STA “guarantee is violated if the prosecution oversteps the time limits of the act. Under the Speedy Trial Act there is no need to measure prejudice to the defendant.”

United States v. Brown, Case No. 14-6543/6544 (6th Cir. Mar 24, 2016)
FOIA INFORMATION ISN’T ANY FREER THAN YOU ARE

It’s common for inmates to file requests under the Freedom of Information Act to obtain files relating to their cases. It’s almost as common to wait for years before hearing from the FBI, DEA or some other agency that hardly any documents (or no documents at all) exist.

If it seems that agencies are worse than ever in turning over records, there’s a reason: the Associated Press reported last week that during the Obama years, the government set a record for the number of times it told requesters that despite searching, it couldn’t find a single page requested under the FOIA.

In more than one in six cases – about 130,000 times last year – government workers said they came up empty-handed. In fact, people who asked for records under the law received censored files or nothing in 77% of requests, also a record.

The FBI couldn’t find any records in 39% of cases. U.S. Customs and Border Protection couldn’t find anything in 34% of cases. Skepticism over such results has led some requesters to specify exactly how they want federal employees to search for files, rather than relying on government staff to figure out how best to proceed. “They do really crappy searches,” said Washington lawyer Kel McClanahan, who handles transparency and national security cases.

Associated Press, US Government Sets Record For Failures To Find Files When Asked (Mar. 18, 2016)

9th CIRCUIT JUDGE CALLS OUT PROSECUTORS

Last summer, Judge Alex Kozinski of the 9th Circuit wrote a thoughtful law journal article called Criminal Law 2.0. In it, he listed 12 reasons to be concerned about the criminal justice system, including prosecutors withholding evidence from the defense in violation of Brady v. Maryland.

One of Judge Kozinski’s suggestions for ensuring Brady compliance was to name names: “When prosecutors misbehave, don’t keep it a secret. Defense lawyers who are found to have been ineffective regularly find their names plastered into judicial opinions, yet judges seem strangely reluctant to name names when it comes to misbehaving prosecutors.”

Last week, Judge Kozinski did just that. In Frost v. Gilbert, a decision on a Washington state habeas corpus, the 9th Circuit held that prosecutors had withheld evidence of a plea deal the prosecution had secretly given a witness in exchange for testifying, and then lied to the prisoner in answer to a public records request. The court held, however, that the prisoner had not been prejudiced, because – even if he had known about the secret deal – there was no reasonable probability that he would have been acquitted.

Five of the 11 Circuit judges essentially told the prosecutors – who were identified in the opinion– to report themselves to the state bar: “We have been apprised of no sanctions against these individuals, nor any inquiry conducted by the courts. Nor have we heard of any effort to hold [the witness] accountable for the perjury he almost certainly committed in his testimony in Frost’s case or to determine the degree to which he may have been aided in that endeavor by prosecuting attorney Wagnild. We are mindful that there may be circumstances of which we are unaware that cast the matter in a different light. Yet … we do not believe this is a sufficient reason to keep silent. The individuals we have named may wish to furnish a copy of this opinion to the state bar and seek to clear their names by providing an explanation for its consideration.”

Four of the en banc judges accused Judge Kozinski of using the decision as a “platform to offer the author’s ‘two-cents’ on the supposed inner-workings of Washington’s criminal justice system. Along the way, the character and integrity of several public employees is tarnished.”

Kozinski, Alex, Criminal Law 2.0, 44 Geo.L.J. Ann.Rev.Crim.Proc. (2015)

Frost v. Gilbert, Case No. 11-35114 (9th Cir. Mar 21, 2016)

2255 PREJUDICE COMES CHEAP IN THE 5TH CIRCUIT

Fletcher Freeman was charged with a drug conspiracy and possession. Later, the government piled on a third count for possession in a superseding indictment. He was convicted in due course.

Fletch filed a motion under 28 U.S.C. § 2255, claiming that the possession count was barred by the statute of limitations. He argued his lawyer was ineffective in failing to argue that the third count was filed past the 5-year cutoff.

Most 2255 ineffective assistance of counsel claims fail, not because lawyers don’t blunder (they often do), but because inmates can’t show that if that the mistake hadn’t happened, it’s reasonably probable they would have ended up better off. That’s what happened to Fletch in the district court: the government admitted the possession count was barred by the statute of limitations, but said Fletcher would gotten the same sentence even without it.

Last week, the 5th Circuit reversed. It held that “Freeman’s counsel was deficient … Counsel was required to perform research on whether the superseding indictment would relate back to the original indictment.” More important for Fletcher Freeman, the Circuit held that “the ‘prejudice prong’ is also supported by the record. Freeman had to pay a $100 special assessment on count three; thus, he suffered prejudice as a result of counsel’s failure to move to dismiss said count.”

So a hundred bucks will buy you prejudice. There are few better bargains in life.

United States v. Freeman, Case No. 14-30220 (5th Cir. March 21, 2016)

LEGAL BRIEFS

ME AND MY BIG MOUTH

When Jorge Sanchez was being booked after his arrest on trafficking charges, the police booking asked the not-yet-Mirandized defendant the usual questions about his name, date of birth, height, weight, and so on. When asked for his current employment, Sanchez matter-of-factly answered that he was “a drug dealer.”

Not a good answer. Last week, the 1st Circuit told the abashed Sanchez that normal booking questions do not constitute an interrogation, and that it would not suppress his wise-ass response.

United States v. Sanchez, Case No. 15-1107 (1st Cir. Mar. 23, 2016)

TRY TO SAVE ME MONEY? TAKE THAT!

Prison phone companies told the U.S. Court of Appeals for the D.C. Circuit last week that enforcement of new Federal Communications Commission-ordered lower rates for in-state calls will cause “jail unrest.”

The phone companies want the Court to stay the FCC order. The vendors say the court should mostly preserve the status quo, while the FCC argues that the order lets it apply its existing caps on interstate call rates to intrastate calls.

A phone company executive said in an affidavit that if the new order is enforced, “inmates will be angry if they believe that we are charging the wrong rates. There could be damage to our phones and equipment, as well as a threat to overall security and corrections personnel including inmates within the facilities. Having been in this industry for eight years, I have experience with jail unrest and I know that issues with the phones can trigger it.”

Ars Technica, Prison phone company says rate caps will make inmates angry and dangerous (Mar. 18, 2016)

YOU’RE NOT GUILTY ENOUGH

“I admit I was in a conspiracy with other people to, uhm — with 50 grams or more of meth, to have bought it,” Lloyd Nickle told the district court.  The judge, however, wanted more, telling him to “admit enough information for me to make a reasonable decision about your drug activity.” But Nickle added only that other conspiracies were not in Montana, but “in other states.” The district refused to “accept a plea from this man under these circumstances,” and made him go to trial.

Last week, the 9th Circuit reversed. It said “there is no requirement in Rule 11(b) that the defendant himself give an in-depth account of his crime or confirm that everything in the government’s offer of proof is true. Although Nickle claimed ‘some of the things that the witnesses say [in the government’s offer of proof] are untrue,’ he never suggested that the government did not have sufficient evidence for a jury to conclude that he is guilty. Armed with the defendant’s admission of guilt and the government’s offer of proof, the district court had all it needed to fulfill its duty under Rule 11(b)(3).”

United States v. Nickle, Case No. 14-30204, -30229 (9th Cir. Mar 21, 2016)

SENTENCE REFORM LAYS AN (EASTER) EGG

The Sentencing Reform and Corrections Act of 2015 – before the Senate as S. 2123, and before the House as H.R. 3713 –is nowhere near hatching.  All that happened last week was that H.R. 3713 picked up yet two more cosponsors, both  Democrats from New York. The Senate bill still has 28 cosponsors, while H.R. 3713 now has 63.

Mostly, legislators were  home for Easter week. Back in Kentucky, Senate Majority Leader Mitch McConnell told students at Northern Kentucky University that S. 2123 is supported by a majority of Democrats, but Republicans are divided on the issue. “The reason it’s kind of divided is that you’ve got an awful lot of people in the law enforcement community that are not really convinced that having lighter sentences is a good idea,” McConnell said. “They oppose federal sentencing reform because “there aren’t any casual users in the federal prison, these are all the bad guys.”

And how about those “bad guys?” The Justice Department last week released statistics – which showed federal prosecutors pursued fewer but more serious drug cases – as evidence that Obama’s criminal justice reforms are bearing fruit. “Federal prosecutors are consistently using their discretion to focus our federal resources on the most serious cases and to ensure that we reserve harsh mandatory minimum sentence for the most dangerous offenders,” Deputy Attorney General Sally Yates said.

New statistics show federal drug prosecutions down 6% in 2015 after a prior 14% drop since the beginning of former Attorney General Eric Holder’s “Smart on Crime” initiative. Since 2012, the number of federal drug defendants accused of using a weapon rose from 15% to 17% and the number with a leadership role went from 6.6% to 7.8%.

In a speech last Wednesday to Congressional interns, House Speaker Paul Ryan (R-Wisconsin) said that criminal justice policies embraced by Congress in the 1990s have “end[ed] up ruining [defendants’] lives and hurting their communities where we could’ve have alternative means of incarceration, instead of basically destroying someone’s life. I’ve become a late convert.”

Business Insider reported that Ryan said, “Criminal-justice reform is something I never thought of when I was younger.  Be tough on crime, be tough on crime.”  Ryan said criminal-justice reform bills would be brought to the House floor soon, and he pledged to “advance” them.  “I didn’t necessarily know this before, but redemption is a beautiful thing. It’s a great thing.  Redemption is what makes this place work. We need to honor redemption. We need to make redemption something that is valued in our culture and our society and in our laws.”

Legal Information Services Associates provides research and drafting services to lawyers and inmates. With over 20 years experience in post-conviction motions and sentence modification strategy, we provide services on everything from direct appeals to habeas corpus to sentence reduction motions to halfway house and home confinement placement. If we can help you, we’ll tell you that. If what you want to do is futile, we’ll tell you that, too.

If you have a question, contact us using our handy contact page. We don’t charge for initial consultation. 

Would you like a copy of this newsletter in PDF format?  Click here.

Vol. 2, No. 12

This week:

More Clemency Grants Rumored

Honor the Procedure

Public Defender Calls For Post-Conviction Right To Counsel

Stop Me Before I Rob Again

No Friend Of Mine

Nothing Happening On Sentence Reform

MORE CLEMENCY GRANTS RUMORED

President Obama is expected to grant clemency to another group of federal prisoners in the coming weeks, part of his effort to provide relief to federal inmates sentenced to harsh sentences for drug offenses.

When Obama first announced his clemency initiative in 2014, the Department of Justice asked private attorneys for help in locating candidates for commutation. At that time, DOJ was already sitting on thousands of applications. Two years later, 9,000 petitions are pending at DOJ, and another 9,000 still await review by the lawyers who volunteered to help review applicants. So far the organization, known as Clemency Project 2014, has been contacted by 34,000 prisoners, but has forwarded petitions from only 300 or so. Only 31 have received commutations.

The raw number of commutations granted by Obama – 187 – looks impressive, but it represents less than 1% of the petitions he has received, compared to almost 7% for Richard Nixon, 4% for Gerald Ford, and almost 3% for Jimmy Carter. In 2014 the Obama administration envisioned granting thousands of commutations by the end of 2016. After a very slow start in his first term, Obama did pick up the pace, but not nearly enough to hit that target.

The DOJ blames the Clemency Project, and says the group should hand over the outstanding cases without further vetting. Cynthia Roseberry, project manager at the lawyers’ network, denies foot dragging. One reason the Clemency Project has been moving so slowly is to be sure applicants meet the DOJ’s “excessively picky criteria,” which include whether a prisoner would have received a shorter sentence under current law, whether he has a significant criminal history, whether he has good conduct in prison, and whether he has significant gang ties.”

Washington Post, President Obama expected to grant more clemencies to federal prisoners in coming weeks (Mar. 11, 2016)

Reuters, Obama’s prisoner clemency plan faltering as cases pile up
(Mar. 14, 2016)

HONOR THE PROCEDURE

Calvin Davis made a few mistakes. First, he joined a heroin conspiracy. Second, he didn’t pick his buyers carefully, one of whom turned out to be a confidential informant. Third – and most important – he made a lousy plea deal.

Last week, he learned why economist Thomas Sowell warns that “you will never understand bureaucracies until you understand that for bureaucrats procedure is everything and outcomes are nothing.”

Cal’s plea deal provided he would be sentenced to 66% of either the low end of the Guidelines sentencing range or the statutory minimum term, whichever was higher. He expected an 80-month prison term. But the Guidelines range figured by the probation officer came out much higher than the parties had expected. The court ordered Davis to serve 172 months, a term that was 66% of the low end of the Guidelines range (consistent with the plea agreement) but more than twice what the parties anticipated when they made the plea deal.

Cal didn’t appeal or file a timely motion under 28 U.S.C. § 2255. But after the Supreme Court’s decision in Alleyne v. United States, Davis filed a § 2255 motion contending that he was entitled to relief because the judge’s sentencing findings regarding his criminal history had increased the minimum term of imprisonment. Alleyne held that any factual determination increasing a defendant’s statutory mandatory minimum term (in that case, the fact that a defendant “brandished” a gun instead of just “possessing” it) must be charged in the indictment and proven beyond reasonable doubt to the factfinder.

The district court held Davis had no Alleyne claim because the Supreme Court has not declared that decision applicable retroactively on collateral review. Last week, the 7th Circuit agreed.

The appellate judges were puzzled as to why Davis thought Alleyne helped him at all. He was subject to a 10-year statutory minimum based on the amount of drugs involved in the trafficking conspiracy – an amount charged in the indictment and to which he admitted. What’s more, criminal history findings like the ones that subjected Calvin to higher guidelines are exempt from the Apprendi v. New Jersey precedents entitling a defendant to a formal charge and a trial on facts that expose him to harsher penalties. But “the clearest impediment to the Alleyne claim” was “that the Supreme Court has not held that Alleyne applies retroactively to cases on collateral review.”

Only the Supreme Court has authority to declare Alleyne retroactive, the 11th Circuit said, and unless it does, no one can claim the benefit of Alleyne in a § 2255 motion. The Supreme Court has not declared Alleyne to be retroactive, so the case’s constitutional teachings are not available to anyone unlucky enough to be improperly sentenced before it was decided.

Procedure is everything.

Davis v. United States, Case No. 14-3019 (7th Cir. Mar. 15, 2016)

PUBLIC DEFENDER CALLS FOR POST-CONVICTION RIGHT TO COUNSEL

In a column coinciding with last Friday’s 53rd anniversary of Gideon v. Wainright, a New York public defender official called for establishment of a post-conviction right of counsel.

Under current law, prisoners are seldom entitled to a lawyer for habeas corpus actions like § 2255 motions or suits challenging prison conditions. Ken Strutin, director of legal information services at the New York State Defenders Association, argued that the right to counsel has not kept pace with overcriminalization and mass incarceration.

Strutin contended that “for the pro se, ‘access to the courts’ has been whittled down to filling out forms and rummaging through libraries inadequate to their purpose … There is no equality of lawyering between the state and the imprisoned. The information world is cruelly biased in favor of the free and the Internet ready. Government lawyers can cite materials in their briefs found easily online or on the other side of publisher paywalls. They have access to the most current resources, information archives and litigation support. How do ill-starred pro se prisoners respond to something they can’t look up, update or understand?”

Kenneth Strutin, Post-Conviction Representation, A Human Need, A Cognitive Right, New York Law Journal (Mar. 15, 2016)

STOP ME BEFORE I ROB AGAIN

Willie McCloud was convicted of being a felon-in-possession. Because he had three prior robberies, the court sentenced him under the Armed Career Criminal Act.

The ACCA provides that the prior crimes making a defendant eligible for an ACCA sentence enhancement must be “committed on occasions different from one another.” Over the years, courts have generally agreed that a crime is successive when a defendant has “a meaningful opportunity to desist … activity before committing the second offense” and “the crimes reflect distinct aggressions.”

The Government argued that Willie’s charging documents showed three separate case numbers assigned to the offenses he committed on August 4, 2008, that Willie and his fellow perps stole from three different people that day, that different kinds of property were stolen, and that the robberies were committed with different co-defendants. Willie seems to have been pretty busy that day.

The 11th Circuit threw out the ACCA enhancement. It held that just because “the charging documents indicate there were unrelated victims and different items stolen does not constitute ‘reliable and specific evidence’ pertaining to the time and location of the offenses, or otherwise indicate that there was a meaningful break between the offenses. We would not consider three temporally and logistically distinct robberies of the same victim to be a single offense. Correlatively, we do not consider – without more evidence – three different victims to indicate that the offenses were temporally or logistically distinct. Similarly, whether the pieces of property stolen were of the same or different types does not indicate the time or place of events. On the face of the charging documents, it is plausible that all three victims were standing in the same location, and each simultaneously gave up the items of value in his pockets. Thus, that there were different victims and the items stolen were two gold chains, one cell phone, and one wallet provides no indication whether the thefts were committed successively rather than simultaneously.”

United States v. McCloud, Case No. 14-14547 (11th Cir.  March 16, 2016)

NO FRIEND OF MINE

Last week, President Obama nominated D.C. Circuit Judge Merrick Garland to the Supreme Court. The nomination still has to be approved by the Senate – which has promised not to act on it until after the election – and it’s hardly sure that Judge Garland will reach the high court.

Still, special interest groups are already howling that Judge Garland is too progressive and anti-business. Whatever. For prisoners – a one-issue special interest bloc if ever there was one – only one question matters: How is Judge Garland on criminal law issues?

Not so good, it turns out. When Garland was in the running for the Supreme Court in 2010, Washington attorney Tom Goldstein analyzed of Garland’s record for Supreme Court website SCOTUSblog. Although there were few cases to go on (the DC Circuit doesn’t handle many criminal law cases), Goldstein found that Garland tended to take conservative positions on criminal law.

Garland’s “track record shows a substantial sympathy for the government in criminal cases. He rarely votes to overturn a criminal conviction,” Goldstein said. In the 2010 analysis, Goldstein found Garland ruled the “opposite of his more liberal colleagues 10 times, but never goes opposite in the other direction of being more favorably inclined to the defendant.”

In cases where the law is unclear, Garland will probably be more likely to rule against the defendant. So he may not follow the rule of lenity — and side with defendants when criminal law is vague — like Scalia did. “He is a centrist, a call-them-as-I-see-them, I-have-no-interest-in-changing-the-law kind of guy,” Goldstein reported.

Is Merrick Garland more conservative than Antonin Scalia
on criminal justice issues? Vox (Mar. 17, 2016)

NOTHING HAPPENING ON SENTENCE REFORM

The legislative glacier that is the Sentencing Reform and Corrections Act of 2015, before the Senate as S. 2123, and before the House as H.R. 3713, did not budge last week. H.R. 3713 picked up two more cosponsors, Democrats from Georgia and California. The Senate bill remains at 28 cosponsors, while the House measure now has 61.

The Austin American-Statesman and Las Vegas Review-Journal newspapers strongly supported federal sentence reform last week. And Washington Post columnist George Will wrote a column last Wednesday entitled Sentencing reform alone won’t fix crime and punishment in America, which argued that more effective post-release services had to be adopted along with sentencing reform.

Will noted that “the federal prison population, which devours 25% of the Justice Department’s budget, has increased more than 300 percent in less than 30 years. Only 7% are convicted of violent crimes. Granted, a person in prison poses no threat to the community. The problem is that almost everyone who goes to prison is going to return to the community from which he or she came, and most will not have been improved by the experience of incarceration … What we are not doing well is supervising people released from incarceration. Hence … the “crime-incarceration-crime cycle.” He says “more people are sent to prison each year for violating probation or parole conditions than as a result of conviction for new crimes.”

Legal Information Services Associates provides research and drafting services to lawyers and inmates. With over 20 years experience in post-conviction motions and sentence modification strategy, we provide services on everything from direct appeals to habeas corpus to sentence reduction motions to halfway house and home confinement placement. If we can help you, we’ll tell you that. If what you want to do is futile, we’ll tell you that, too.

If you have a question, contact us using our handy contact page. We don’t charge for initial consultation. 

Would you like a copy of this newsletter in PDF format?  Click here.

Vol. 2, No. 11

This week:

Every Dog Gets One Bite

Hold the Phone

Welcome Back

Judge Gleeson’s Swan Song

Let Me Sleep on It

The Brady Bunch

Some Rumblings On Sentence Reform Legislation

EVERY DOG GETS ONE BITE

About 20 years ago, Congress rewrote the habeas corpus laws to sharply limit prisoner access to 28 U.S.C. § 2255 motions. A central component of the change was the requirement that every prisoner gets only one § 2255 motion, unless a court of appeals authorizes a “second-and-successive” § 2255 filing.

Generally, getting permission for a second § 2255 is as rare as a snow squall in August (although if Johnson v. United States becomes retroactive, there’ll be a flurry of such motions). But federal prisoner and serial filer Sheldon Fuller thought he’d figured out a way around the second-and-successive limitation.

Sheldon filed his first § 2255 motion in 2011.  It was denied.  He sought a certificate of appealability from the 2nd Circuit in order to appeal.  The COA was denied, too.  But before the Court of Appeals acted on the COA, Sheldon filed a second § 2255 motion, arguing that it was not “second-and-successive” (and thus he did not need Court of Appeals permission to file it), because denial of his first § 2255 was not yet final.

The district court denied the second § 2255 on the merits, too. Likewise, his application for a COA was denied. But – you guessed it – before denial of the second § 2255 was final, Sheldon filed a third § 2255, claiming that it too was not second and successive because his prior § 2255 was still pending. Under Sheldon’s theory, he could keep filing new § 2255s until his release date (which, given his life sentence, was never), as long as he filed the new one before denial of the previous one was final.

Last week, the Second Circuit limited Sheldon’s dog to one bite. Holding that the Antiterrorism and Effective Death Penalty Act was intended to give every prisoner one chance for full collateral review, it ruled that because Sheldon’s first § 2255 had “reached final adjudication prior to commencement of the present proceeding, his instant § 2255 motion is successive.” The Court said the rule is that any § 2255 is successive if it “filed subsequent to the conclusion of a proceeding that counts as the first.” Interestingly, however, the Court suggested in a footnote that while Sheldon’s “second § 2255 motion was successive is not currently at issue, we note that it differed from the third § 2255 motion in that the second motion was filed before the adjudication of Fuller’s first § 2255 motion became final.”

Perhaps Sheldon’s strategy does work … once.

Fuller v. United States, Case No. 15-3006 (2nd Cir. Mar. 5, 2016)

HOLD THE PHONE

The U.S. Court of Appeals for the D.C. Circuit last week put on hold a Federal Communications Commission order capping prison phone-call rates.

The FCC voted 3-2 last fall to put a rate cap on charges for all phone calls to and from prison inmates. The order was intended to curb what the FCC called “excessive rates and egregious fees” paid by inmates – as high as $14 a minute in some jails (31 times the per-minute cost of a call to Antarctica). The FCC’s rule limits the rate for debit and prepaid calls in state or federal prisons to 11 cents a minute.

The caps were challenged by prison phone companies and several states, which argued that the FCC had exceeded its statutory authority and had unlawfully disregarded the actual costs of providing telephone services to inmates.

Global Tel*Link v. FCC, Case No. 15-1461 (D.C.Cir., Mar. 7, 2016)

WELCOME BACK

How many Federal inmates will come back to prison at some point in their lives? Ask around the table at chow some time. The answers you get will probably be at odds with reality.

Last week, the U.S. Sentencing Commission issued results of a study that reported some sobering facts. Over an 8-year follow-up period, almost half of federal offenders released in 2005 (49.3%) were rearrested for a new crime or rearrested for a violation of supervision conditions. Almost a third (31.7%) of those guys were also reconvicted, and one-quarter (24.6%) of them were reincarcerated over the same study period.

The most dangerous time for a freed inmate is the first two years after release. The Sentencing Comission said that median time from release to rearrest was 21 months.

What’s more, all that talk about “frequent fliers” – people with impressive criminal histories who keep coming back – seems to be true. An inmate’s criminal history closely correlates with recidivism rates. Rearrest rates range from 30.2% for offenders with zero total criminal history points to 80.1% of offenders in the highest Criminal History Category. A federal prisoner’s age at time of release into the community is also closely associated with differences in recidivism rates. Offenders released prior to age 21 had the highest rearrest rate (67.6%), while offenders over 60 years old at the time of release had a recidivism rate of 16.0%.

U.S. Sentencing Commission, Recidivism Among Federal Offenders:
A Comprehensive Overview (Mar. 9, 2016)

JUDGE GLEESON’S SWAN SONG

U.S. District Judge John Gleeson, in his final days on the Eastern District of New York bench before joining a white-shoe Wall Street law firm, last week invented a blueprint for helping people convicted of federal crimes secure jobs.

More than a dozen states issue certificates to ex-offenders who prove rehabilitation, usually by remaining offense-free for a long stretch. The certificates protect prospective employers and may exempt recipients from laws that bar convicted felons from obtaining occupational licenses (now required for about one out of five jobs).

There is no equivalent federal certificate, so Judge Gleeson rolled his own. In an order issued last week, the judge 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 did 15 months for it, and was released 12 years ago.

Judge Gleeson wrote, “I had no intention to sentence [Doe] to the unending hardship she has endured in the job market … Her conviction makes her no different than any other nursing applicant. In the 12 years since she reentered society after serving her prison sentence, she has not been convicted of any other wrongdoing. She has worked diligently to obtain stable employment, albeit with only intermittent success. Accordingly, I am issuing Doe a federal certificate of rehabilitation.”

The judge expunged the conviction of another defendant in the same case last year, in what legal experts said was the first instance of a federal court erasing a criminal record on the grounds that it interfered with employment. Unsurprisingly, the Justice Department is appealing his order in that case.

Doe v. United States, Case No. 15-Misc-1104 (E.D.N.Y., Mar. 7, 2016)

LET ME SLEEP ON IT

Nicholas Ragin was concerned about being charged with running a prostitution ring and dealing drugs. His lawyer, Nikita V. Mackey, however, remained calm … very calm. So calm, in fact, that he slept during the 3-week trial of Nick and his co-conspirators.

The jury convicted Nicholas, and he got 30 years. He filed a § 2255 motion that raised eight different issues, one of which was his complaint that counsel had slept during trial. Nick’s one-paragraph aside in the § 2255 motion became the focus of an evidentiary hearing. Other defense counsel and a juror testified to counsel’s extended napping, with stories such as this one:

Mr. Mackey was sort of sitting back, leaning back in his chair with his left elbow on his left thigh … and sort of with his chin resting on his fist, and government counsel held the document in front of him and he didn’t move, he sort of sat there. Judge Conrad leaned into his microphone, because we were all sitting there and Mackey wasn’t moving and said, ‘Mr. Mackey’ . . . very loudly. Mackey then jumped up and sort of looked around and was licking his lips and moving his mouth and looked sort of confused and looked all over the room except at government counsel. And after a few seconds, he saw government counsel standing there and looked at the document.”

Despite the testimony, the district court denied the § 2255 motion, holding that Nick had not proven that he was prejudiced by counsel’s one-man slumber party. The district judge discounted the juror’s testimony because he thought she perhaps felt “remorse” for the stiff sentence the defendant received.

Last Friday, the 4^th Circuit Court of Appeals threw out Nick’s conviction. The decision said, “We find it impossible not to conclude that Mackey was … not functioning as a lawyer during a substantial portion of the trial. Unconscious counsel equates to no counsel at all. Because we have no basis to conclude that an attorney who sleeps through a substantial portion of the trial has exercised judgment on his client’s behalf, ‘we have insufficient basis for trusting the fairness of that trial and consequently must presume prejudice.’ Therefore, the fact that Mackey was sleeping during Ragin’s trial amounted to constructive denial of counsel for substantial periods of that trial.”

United States v. Ragin, Case No. 14-7245 (4^th Cir. Mar. 11, 2016)

THE BRADY BUNCH

Just about everyone knows something about Brady v. Maryland, the 1963 Supreme Court decision that holds the government violates due process when it fails to disclose to the defense evidence favorable to the accused, either because the evidence is exculpatory or because it is impeaching.

Thus, there was a flutter of excitement last week when the Supreme Court tossed a Louisiana murder conviction in a summary reversal that drew a sharp dissent from two conservative justices. The unsigned opinion held that the state court erred in upholding Michael Wearry’s conviction after it turned out that the prosecution withheld information “that could have advanced” Wearry’s defense. The opinion said that “beyond doubt, the newly revealed evidence suffices to undermine confidence in Wearry’s conviction.”

Justices Samuel Alito and Clarence Thomas, dissented, calling it “highly inappropriate” to reverse without granting certiorari so that the State of Louisiana could be heard. The majority retorted that “the Court has not shied away from summarily deciding fact-intensive cases where, as here, lower courts have egregiously misapplied settled law.”

The decision is interesting to anyone who likes seeing a blatant Brady violation, but it does not really extend or expand Brady in any meaningful way.  Still, a due process win and a hot cup of coffee is a good way to start a cold spring morning.

Wearry v. Cain, Case No. 14-10008 (Supreme Court, Mar. 7, 2016)

SOME RUMBLINGS ON SENTENCE REFORM LEGISLATION

Nothing changed on the House or Senate legislative calendars last week for the Sentencing Reform and Corrections Act of 2015 (which some call “Sriracha”). The Senate bill (S. 2123) still has 28 cosponsors, while the House measure (H.R. 3713) has 59.

However, people are talking, and for a change, some of the talkers are people who are in a position to know something. Speaking at a Georgetown University Law Center conference last week, Senate Judiciary Committee Chairman Charles Grassley (R-Iowa) said “We are very close to making some changes in this bill so we can get it brought before the United States Senate.”

In January, a group led by Sen. Tom Cotton (R-Arkansas) raised concerns that Sriracha could release thousands of violent criminals early. Criminal justice reform advocates argued the bill would not guarantee the release of violent criminals, but simply let their cases get reevaluated by a federal judge.

Last Tuesday, Grassley called Cotton’s concerns “legitimate and reasonable.” While he did not provide specifics on the amendments, Grassley said legislators may have to drop parts of the bill that would have allowed Armed Career Criminal Act inmates get their sentences lowered retroactively.

Ohio State law professor Doug Berman said last week in his sentencing blog that “Senator Grassley also spoke about all the complaints he receives back in Iowa and elsewhere about leaders in DC spending all their time fighting over politics and not getting anything actually done. Senator Grassley’s comments have me now thinking that he and other GOP members of the Senate are likely to stress bipartisan work on sentencing reform when attacked by Democrats and others for ‘not doing anything …’ And work on sentencing reform will not seem all that meaningful if a bill does not come to the floor of the Senate at some point.”

The House also must pass its version of the bill, and there are reasons for concern that the House will not do so unless mens rea reform is a part of the equation.  Berman said “every day that goes by without the legislative process moving forward tangibly is yet another day lost before the congressional election season gets into full swing when members of Congress start focusing more on November voting dynamics rather than whether they get anything done on a complicated policy issue that involves lots of compromises and intricacies.”

In what could be a favorable indication of Congressional movement, the Senate last Thursday overwhelmingly passed a broad drug treatment and prevention bill, the largest of its kind since a law in 2008 that mandated insurance coverage for addiction treatment. The New York Times suggested that this legislative accomplishment could be a bipartisan model for Senate cooperation on criminal justice reform.

Former Congressman J.C. Watts (R – Oklahoma), chairman of the Charles Colson Task Force on Federal Corrections, wrote a spirited piece in The Hill last week attacking myths about prison reform, such as “all drug offenders are violent” and “law enforcement is opposed to Sriracha.” He concluded that “as Congress contemplates prison reform, it could take a page out of the book of state experiences … There, public officials on both sides of the aisle came together to develop better models, informed by evidence and data, that could reduce prison overcrowding, conserve resources, and enhance public safety. These reform efforts demonstrate that it is indeed possible to promote public safety while being fiscally responsible, creating a more equitable and effective criminal justice system.”

Legal Information Services Associates provides research and drafting services to lawyers and inmates. With over 20 years experience in post-conviction motions and sentence modification strategy, we provide services on everything from direct appeals to habeas corpus to sentence reduction motions to halfway house and home confinement placement. If we can help you, we’ll tell you that. If what you want to do is futile, we’ll tell you that, too.

If you have a question, contact us using our handy contact page. We don’t charge for initial consultation. 

Would you like a copy of this newsletter in PDF format?  Click here.

Vol. 2, No. 10

This week:

English 101

It’s Good To Be The King

Plea Bargaining “A Monster”

What’s Yours Is Mine

You Must Act Now

Take Your Time

Could Supreme Court Nominee Battle Help Pass Criminal Reform?

ENGLISH 101

Remember how bored you were in the back of the classroom while your English teacher droned on about conjugation, dependent clauses and prepositional phrases? Here’s another reason you should have paid attention.

Lockhart pleaded guilty to possessing child pornography. Because he had a prior state court conviction for first-degree sexual abuse involv¬ing his adult girlfriend, the district court held that he was subject to a 10-year sentence enhancement triggered by conviction for a crime “relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward.”

Lockhart argued that the limiting phrase “involving a minor or ward” applied to all three state crimes, so his prior conviction should not trigger the enhancement. But last week, the Supreme Court disagreed.  The majority applied the Rule of the Last Antecedent – a rule of statutory interpretation holding that “a limiting clause or phrase … should ordinarily be read as modifying only the noun or phrase that it immediately follow.” The rule means that the phrase “involving a minor or ward” modifies only the immediately preceding noun phrase “abusive sexual conduct.” The phrases “aggravated sexual abuse” and “sexual abuse” are not restricted by the modifier.

The 6-2 opinion admitted that the Rule of the Last Antecedent “can . . . be overcome by other indicia of meaning,” but argued that here, the statute’s context reinforces the conclusion that sexual abuse against anyone – not just a minor – was enough to trigger the enhancement.

Lockhart v. United States, Case No. 14–8358                                          (Supreme Court, Mar. 1, 2016)

IT’S GOOD TO BE KING

Back in the Days of Yore, peasants were simply not allowed to sue the King. Or do anything else, for that matter. Times have changed, but the notion that you cannot sue the king survives in a doctrine known as “sovereign immunity.” In other words, us peasants may not sue the government, unless we get permission from the government to do so

In the case of the federal government, permission comes in the form of the Federal Tort Claims Act, which grants permission to sue the Feds for certain kinds of wrongs, but not others.

The FTCA is what Frank Douglas turned to when he thought he’d been cheated out of BOP inmate pay.  Frank was a Performance Grade I inmate employee, working 154 hours a month running a cardboard recycler at FCI Coleman.  His boss agreed that he had $91.00 a month coming, but when got paid, Frank found his pay had been cut to about $7.00.  Frank alleged his pay had been cut by a lieutenant who said he didn’t “like Inmate Douglas black ass and I’m going to pay him what I want.” Predictably, the government moved to dismiss, arguing that paying inmates for their work was a purely discretionary function, and thus the L-T’s conduct couldn’t be reached under the FTCA.

The FTCA’s discretionary function exception does not waive sovereign immunity for claims “based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency …” The government argued that because the BOP doesn’t have to give inmates jobs to begin with, then obviously, whether to pay them is discretionary as well.

Last week, the 11th Circuit rejected that defense. The court held that the “discretionary function” issue relates to the individual employee – in this case, whether the lieutenant had discretion – not whether the BOP had discretion. Here, the BOP had rules that give prisons discretion to decide which inmates will work and which types of work, if any, will be compensated at which pay grade. But once an inmate’s work is assigned a pay grade and evaluated by his supervisor, the rules made clear that the inmate is entitled to the pay that the supervisor computed. The lieutenant had no discretionary right to change pay that was vested.

Besides, the court said, “if as Mr. Douglas claims, Lt. Barker unilaterally altered Mr. Douglas’s wages out of racial animus, Lt. Barker’s conduct, even if discretionary, “cannot be said to be based on the purposes that the regulatory regime seeks to accomplish.”

Douglas v. United States, Case No. 14-11444 (11th Cir. Feb. 29. 2016)

PLEA BARGAINING IS “A MONSTER”

Another respected federal judge sharply criticized the criminal justice system recently, focusing primarily on plea bargaining.

“We created this monster and it’s taken on a life of its own,” U.S. District Judge Jed Rakoff (S.D.N.Y.) said during a symposium on crime at John Jay College of Criminal Justice on Feb. 25. He said even in the Southern District of New York – a fairly progressive federal court – his judicial colleagues think sentencing offenders to long prison terms is fair.

Judge Rakoff said he’s seen the system change in the past few decades, from a time where 15 percent of federal criminal cases went to trial to only 3 percent currently. He called the plea bargaining process a “system of totally secret justice” where prosecutors hold “all the cards” and are able to get a vast majority of defendants to plead guilty to charges when faced with extremely long sentences imposed through sentencing guidelines or mandatory minimums.

Julie Seaman, a law professor and president of the Georgia Innocence Project, told the symposium it’s “completely rational for an innocent person to plead guilty because there is so much risk involved in going to trial.” The plea bargaining is done behind closed doors, and “because it’s so totally untransparent,” Judge Rakoff said, it will “inevitably going to lead to some serious mistakes.”

Rodney Roberts, a New Jersey man who pled guilty to a crime of which he was exonerated (only after serving 17 years in prison), said he faced a life sentence if convicted at trial. He said, “Most people ask, ‘What would make an innocent person plead guilty?’ Most people say, ‘Oh I wouldn’t have done that. I would have fought for my innocence.’ My response is always the same, I say, ‘I hope you’re never in that situation.’”

Roberts called it an “assembly-line” process where his overworked public defender coerced him into to take a deal. “I thought, ‘This is the only guy who is on my side,’ if he’s telling me this, then what chance do I have?” he said.

Judge Rakoff said he decided to speak out a few years ago after thinking about all the cases where he was encouraged to impose increasingly longer sentences on low-level criminals. He said the judicial code encourages judges to speak out, but not enough judges do so. “It’s very worrisome to me,” he said. “Who is going to judge the judges? It will be history …”

Wisnieski, “A ‘Draconian’ System Where the Innocent Plead Guilty,”
The Crime Report (Feb. 26, 2016)

WHAT’S YOURS IS MINE …

“Possession” can be a slippery concept. Last week, the 8th Circuit made it a bit slipperier.

Patrelle Green-Bowman and three others were riding in a car stopped by police. A shotgun lay on the back seat, wrapped in Patrelle’s jacket. Patrelle, having a criminal record, was convicted of being a felon-in-possession.

Patrelle argued on appeal that the government had not proved that he – as opposed to other folks in the car – possessed the shotgun. The 8th Circuit rejected his defense. “As we have repeatedly explained,” the Court said, “more than one person may possess a thing. And that remains true even though the government focused on Green-Bowman and did not tell the jury a story about someone else possessing the gun along with him. Without evidence someone else had exclusive control over the shotgun, the presence of other people who might have possessed the weapon does not prove Green-Bowman did not also possess it.”

Of course, the Court said, the fact that Patrice’s jacket was wrapped around the scattergun also helped convince the jury he had control over the weapon.

United States v. Green Bowman, Case No. 14-2826                                    (8th Cir. Mar. 2, 2016)

YOU MUST ACT NOW

The late Ed McMahon used to hawk Colonial Penn Life Insurance to older people, warning sternly that “you MUST act now.” Chris McCoy wishes Ed had told him that.

Chris was convicted on a guilty plea, entered before a magistrate judge. Later, he filed a § 2255 motion alleging all sorts of issues. He won the right to a hearing, but his 2255 was ultimately denied.

However, at about the same time, the 7th Circuit ruled in United States v. Harden that the law didn’t let magistrate judges accept guilty pleas. Relying on Harden, Chris filed a motion to set aside his 2255 judgment.

Last week, the 7th Circuit said, “too little, too late.” The Court noted that “a § 2255 appellant cannot raise for the first time on appeal a claim not presented to the district court in the § 2255 proceedings below” unless he can show cause and prejudice, that is, a good reason for raising the issue before and a showing that the issue had an impact on his case.

Chris claimed that Harden was a complete change in the law that was completely unexpected. The 7th Circuit disagreed. It said the “Harden decision on which McCoy bases his claim was issued a full two weeks before the hearing in the district court on his § 2255 motion. Harden was not an obscure, unpublished order dealing with a minor legal matter in a distant district. Rather, it was a published decision of this court that originated from the same district and even the same judge as McCoy’s case.”

Chris should have amended his 2255 motion as soon as was issued.  Trying to reopen the case on a Rule 60(b) motion left Chris a day late and a dollar short.

United States v. McCoy, Case No. 14-2741 (7th Cir. Mar 2, 2016)

TAKE YOUR TIME

With retroactivity of Johnson v. United States pending before the Supreme Court in Welch v. United States, more than a few people doing time under the Armed Career Criminal Act find themselves between a rock and a hard place.

Johnson was decided June 26, 2015. Under 28 U.S.C. § 2255(f)(3), inmates have one year from that date to file for relief as a result of Johnson’s holding. That one-year period runs from last summer, not from whatever date in the future that Johnson is held to be retroactive.  Dodd v. United States, 545 U.S. 353 (2005).

So a lot of people who need permission to file a second-and-successive 2255 motion are filing now, to get in line for approval whenever Welch is decided. However, 28 U.S.C. § 2244(b)(3)(D) says a Court of Appeals “shall grant or deny the authorization to file a second-or-successive application not later than 30 days after the filing of the motion.” So if someone files now, the Court would have to act the motion before the Supreme Court decides Welch, meaning that the second-or-successive application is doomed.

That is, it’s doomed unless – as the 11th Circuit held last week – “shall” doesn’t really mean “shall.”  Citing a Supreme Court decision about a different statute, the 11th Circuit said “[t]hough ‘shall’ generally means ‘must,’ legal writers sometimes use . . . ‘shall’ to mean ‘should,’ ‘will,’ or even ‘may’ … We hold that ‘shall’ in § 2244(b)(3)(D) indicates a preference for a decision within 30 days but does not mean ‘must’ in all circumstances.”

Seven other circuits have held the same. Only the 3rd, 5th, 8th and D.C. circuits are excluded, because the question has not yet arisen there.

What the holding means is that a second-and-successive application raising Johnson will be held in abeyance until Johnson’s retroactivity is settled, regardless of the 30-day clock in the statute.

In re Anthony Johnson, Case No. 16-10011 (11th Cir. Feb. 26, 2016)

COULD SUPREME COURT NOMINEE BATTLE HELP PASS CRIMINAL REFORM?

The Sentencing Reform and Corrections Act of 2015 (which some call “Sriracha”) now before the Senate as S. 2123, and before the House as H.R. 3713, did not advance last week. H.R. 3713 picked up two more cosponsors, Democrats, from Ohio, Illinois and Florida. The Senate bill remains at 28 cosponsors, while the House measure has 59.

However, Sen. Mike Lee (R-Utah), one of the sponsors of Sriracha, suggested in the conservative Daily Signal recently that the Senate fight over the next Supreme Court nominee could help the chances of a criminal justice reform overhaul passing Congress this year. Sen. Lee said, “We in the Senate naturally want to find areas where there is significant bipartisan agreement, and this is one of them. The fact we disagree in some areas makes it much more important for us to pass bills like the Sentencing Reform and Corrections Act, and in that respect, it makes it more likely we will.”

Former Attorney General Michael Mukasey – already a Sriracha supporter – wrote last week in The Hill, a newspaper covering Congress, that he was one of “the original supporters of the 1990s ‘tough on crime’ laws. After decades of enforcing them, I … now recognize many provisions, like overly harsh sentencing, went too far … The Sentencing Reform and Corrections Act recalibrates sentencing policy to meet the needs of the 21st century. Lowering mandatory minimum sentences for low-level crimes will reduce unnecessary incarceration. This will allow us to better direct law enforcement resources to arresting, prosecuting, and punishing the most serious and violent criminals.”

The Sunlight Foundation, an organization that monitors Congressional lobbying, reported last week that nearly 30 organizations spent over $27 million to influence Sriracha in 2015. The groups included the National Association of Assistant United States Attorneys – which paid a lobbyist $60,000 last year to fight Sriracha – and others like the American Civil Liberties Union, NAACP, Starbucks, Gun Owners of America and the United Methodist Church. Sunlight Foundation said, “Due to vague disclosure laws, it is impossible to pinpoint exactly how much these groups are spending to specifically influence the Sentencing Reform Act. But we do know these organizations are powerful players in Washington …”

Much of the recent battle over criminal justice reform has centered around Republican attempts to strengthen the mens rea requirement. Writing in the National Law Journal last week, two experienced criminal defense attorneys said “it may come as a surprise to many in the bar, but some legislators in Congress, at the strong urging of federal prosecutors and even members of the media, are balking at bipartisan legislation aimed at ensuring a default intent requirement kicks in where a federal criminal law’s intent requirement, or mens rea, is unclear or absent.  The question of intent, of course, is always crucial.  That is one important experience we have witnessed in our combined 55 years as criminal defense lawyers.  From working as appointed counsel for the poor, to representing people accused of every sort of crime, we have seen first-hand the steady erosion of the intent requirement.”

Legal Information Services Associates provides research and drafting services to lawyers and inmates. With over 20 years experience in post-conviction motions and sentence modification strategy, we provide services on everything from direct appeals to habeas corpus to sentence reduction motions to halfway house and home confinement placement. If we can help you, we’ll tell you that. If what you want to do is futile, we’ll tell you that, too.

If you have a question, contact us using our handy contact page. We don’t charge for initial consultation. 

Would you like a copy of this newsletter in PDF format?  Click here.