Tag Archives: 2244

Bowe Gets His §2255 Second Chance – Update for February 20, 2026

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

11TH CIRCUIT GIVES BOWE ANOTHER ARROW

You may remember that a month ago, Michael Bowe – convicted 10 years ago of conspiracy to commit a Hobbs Act robbery, attempted Hobbs Act robbery, and using a gun during the offenses in violation of 18 USC § 924 – won his Supreme Court case. On January 12, 2026, SCOTUS ruled that while 28 USC § 2244 provides that a denial of authorization “to file a second or successive application” shall not be subject to Supreme Court review, the limitation does not apply to federal prisoners. The Supremes said the limitation is housed within 28 USC § 2244, “which imposes several strict requirements that apply only to state prisoners.” What’s more, subsection 2244(b)(3)(E) addresses only “second or successive application’ but “unlike state prisoners who file such ‘applications,’ federal prisoners file ‘motions.”

Mike filed and lost a § 2255 motion in 2016, arguing that Johnson v. United States, which invalidated the residual clause in the Armed Career Criminal Act (18 USC § 924(e)), also invalidated his § 924(c) conviction. He lost. He filed a second § 2255 motion in 2019, after United States v. Davis held that conspiracy to commit a vviolent crime was not itself a violent crime. He lost again, because while Davis announced a new, retroactive constitutional rule, Mike’s attempted Hobbs Act robbery conviction was still a crime of violence.

After United States v. Taylor held in 2022 that attempted Hobbs Act robbery was not a crime of violence, Mike once again asked the 11th Circuit for authorization under § 2255(h), arguing that Davis and Taylor leave none of his convictions as valid predicates for a § 924(c) charge. The Circuit dismissed the part of his request resting on Davis, reasoning that the claim had been “presented in a prior application” and that the panel lacked jurisdiction over such old claims under § 2244(b)(1) –  a statute that on its face applies to state prisoners seeking leave to file a second 28 USC § 2254 petition in federal court but has ambiguously been applied by federal appeals courts to federal § 2255 movants as well.

The Supreme Court reversed, holding that § 2244(b)(1)’s old-claim bar – that states that “[a] claim presented in a second or successive habeas corpus application under § 2254 that was presented in a prior application shall be dismissed” – applies only to state prisoners.

Last week, the 11th  ruled that Mike could go forward with a new § 2255 motion. “Based on Taylor and the 11th Circuit’s Brown v. United States decision, Bowe contends that neither of his predicate offenses — conspiracy to commit Hobbs Act robbery (Count 1) and attempted Hobbs Act robbery (Count 2) — can now quality as a ‘crime of violence’ that would support his § 924(c)(1)(A) conviction (Count 3) for using, brandishing, or discharging a firearm during a crime of violence,” the 11th said.

Bowe has made a prima facie showing that he meets the statutory criteria in § 2255(h)(2)… But a prima facie showing case is not a final showing entitling an applicant to relief. A prima facie showing is only the necessary first step. He still has to show the district court that he is entitled to the relief he seeks. As we have explained: “Things are different in the district court. That court has the benefit of submissions from both sides, has access to the record, has an opportunity to inquire into the evidence, and usually has time to make and explain a decision about whether the petitioner’s claim truly does meet the § 2244(b) requirements. The statute puts on the district court the duty to make the initial decision about whether the petitioner meets the § 2244(b) requirements—not whether he has made out a prima facie case for meeting them, but whether he actually meets them…”

In re Bowe, Case No. 24-11704, 2026 U.S. App. LEXIS 3876 (11th Cir. February 6, 2026)

Brown v. United States, 942 F.3d 1069 (11th Cir. 2019)

United States v. Taylor, 596 U.S. 845 (2022)

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

Bowe v. United States, Case No. 24-5438, 2026 U.S. LEXIS 4 (January 9, 2026)

~ Thomas L. Root

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

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

2254/2255 AMENDMENT IS TOO LITTLE, TOO LATE

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

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

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

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

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

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

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

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

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

– Thomas L. Root

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

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

SCOTUS LETS 2244 “FACTS VERSUS CLAIMS” CIRCUIT SPLIT FESTER

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

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

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

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

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

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

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

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

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

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

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

– Thomas L. Root

Some § 2255 Motions Are Less Successive than Others, 6th Circuit Says – Update for December 16, 2022

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NOT ALL SECOND 2255s ARE SECOND-OR-SUCCESSIVE, 6TH CIRCUIT SAYS

mulligan190430Generally (a word that is employed dangerously where the law is concerned), every federal prisoner is entitled to file one post-conviction habeas corpus motion challenging his or her conviction under 28 USC § 2255. To file a second one – called a “second-or-successive” 2255 – a prisoner must first petition the court of appeals having jurisdiction over his or her district court for permission to do so.

Permission is only granted if the Supreme Court has handed down a retroactive constitutional decision that would affect the prisoner’s conviction or sentence, or if newly-discovered facts would convince a jury the petitioner was not guilty. These standards – set out in 28 USC § 2244 – are daunting.

Fortunately, while all men may be created equal, not all second-and-successive 2255s are.

rodeo221216In 2007, Ronald Jones was convicted of meth distribution. It was not Ron’s first rodeo – he had two California drug distribution priors. Under 21 USC § 841(b)(1)(A), a defendant with two prior drug convictions would see his or her mandatory minimum set at 300 months. Ron got 360 months.

In 2016, Jim lost a 28 USC § 2255 post-conviction motion raising a Johnson claim. Then, last year, Jim got one of his prior state cases dismissed under California’s Proposition 47. He then filed a 28 USC § 2244 motion with the 6th Circuit, asking permission to file a second § 2255 motion raising a sentencing issue because he no longer qualified for the “two priors” § 841(b)(1)(A) enhancement, and his mandatory minimum dropped to 180 months.

Last week, the 6th Circuit denied Ron’s § 2244 as “unnecessary” and sent his § 2255 to the district court for consideration.

The Antiterrorism and Effective Death Penalty Act limits courts’ authority to hear “second or successive” § 2255 motions. But not all successive § 2255s are “successive” in the eyes of the law.

The Circuit held that “some second-try § 2255 motions are not ‘second or successive’ within the meaning of 2255(h).” Where “the events giving rise to a 2255 claim have not yet occurred at the time of a prisoner’s first 2255 motion, a later motion predicated on those events is not second or successive… A motion based on changes to a prisoner’s eligibility for parole, for example, is not ‘second or successive’ if the changes occurred after the prisoner took his first shot at 2255 relief. Section 2255 is strict, but (in this context at least) it does not demand clairvoyance – that prisoners predict their claims before they arise.”

For Ron, “the events giving rise” to his second § 2255 claim came about in 2021, when California dismissed and vacated his prior California conviction, well after the 2016 § 2255 petition.

circuitsplit220516Not every Circuit agrees with the 6th on this. So far, only the 4th, 7th, 10th and 11th concur that petitions like Ron’s are not successive. The decision could set up a Supreme Court review, but the government would have to be the one to appeal, and that’s unlikely.

In re Jones, Case No. 22-5689, 2022 U.S.App. LEXIS 33759 (6th Cir., December 8, 2022)

– Thomas L. Root

Going Back to the Well – Update for September 24, 2021

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PROCEDURAL BOOTSTRAPPING

well210924Back to the Well Once Too Often: Federal prisoners who lose their 28 USC § 2255 motions sometimes resort to filing motions to set aside the § 2255 judgment under Federal Rule of Civil Procedure 60(b), as a clever means of getting around seeking permission for a second or successive § 2255 under 28 USC § 2244. It seldom works.

A few fun facts: First, although a post-conviction motion under 28 USC § 2255 challenges a criminal conviction or sentence, the § 2255 proceeding itself is considered to be a civil action. That is how a movant even has the option to employ Fed.R.Civ.P. 60(b), or any other Federal Rule of Civil Procedure, for that matter. Second, Rule 60(b) – which governs motions to set aside the judgment – is usable after a final judgment is rendered, although that some time constraints and designated bases for invoking the Rule that are beyond today’s discussion. Third, the Anti-Terrorism and Effective Death Penalty Act – known as the AEDPA – puts severe restrictions on prisoners bringing more than a single § 2255 motion without meeting some pretty high standards (a new retroactive rule of constitutional law or some killer new evidence) and getting advance approval from a United States Court of Appeals under 28 USC § 2244. These restrictions can run headlong into a Rule 60(b) motion.

Desmond Rouse and several co-defendants were convicted based on what they called “outdated, false, misleading, and inaccurate” forensic medical evidence, testimony that had since been recanted, and juror racism. Having failed to win their § 2255 motions, they filed a motion to set aside the § 2255 judgment under Rule 60(b), arguing that a “new rule” announced in Peña-Rodriguez v Colorado would now let them “investigate whether their convictions were based upon overt [juror] racism,” and the witness recantations showed they were actually innocent.

Last week, the 8th Circuit rejected the Rule 60(b) motion as a second-or-successive § 2255 motion.

aedpa210504The Circuit held that newly discovered evidence in support of a claim previously denied and a subsequent change in substantive law “fall squarely within the class of Rule 60(b) claims to which the Supreme Court applied § 2244(b) restrictions in Gonzalez v. Crosby back in 2005. The requirement in § 2244(b)(3) that courts of appeals first certify compliance with § 2244(b)(2) before a district court can accept a motion for second or successive relief applies to Rule 60(b)(6) motions that include second or successive claims. Our prior denial of authorization did not sanction Appellants’ repackaging of their claims in Rule 60(b)(6) motions to the district court. The motions are improper attempts to circumvent the procedural requirements of AEDPA.”

Back to the Well is Just Fine: In the 7th Circuit, however, a prisoner who filed reconsideration on denial of his First Step Act Section 404 motion chalked up a procedural win. Within the 14 days allowed for filing a notice of appeal after his district court denied him a sentence reduction, William Hible filed a motion asking the district judge to reconsider his denial. The judge denied the motion, and Bill filed his notice of appeal, again within 14 days of the denial. The government argued the notice was late, because a motion for reconsideration doesn’t stop the appeal deadline from running.

Last week, the 7th Circuit agreed with Bill. The 7th observed that while the Federal Rules of Criminal Procedure lack any parallel to the Federal Rules of Civil Procedure 59, the Supreme Court “has held repeatedly that motions to reconsider in criminal cases extend the time for appeal. But under the Sentencing Reform Act of 1984, only Criminal Rules 35 and 36 offer any prospect of modification by the district judge. Rule 36 is limited to the correction of clerical errors. Under Federal Rule of Appellate Procedure 4(b)(5), a motion under Rule 35 does not affect the time for appeal.

 timewaits210924The government argued these rules govern sentence reduction proceedings, but the 7th disagreed. The Circuit said the First Step Act authorizes reduction of a sentence long after the time allowed by Rule 35. Thus, “the First Step Act’s authorization to reduce a prisoner’s sentence is external to Rule 35,” so the provision in Rule 4(b)(5) about the effect of Rule 35 motions does not apply here. A reconsideration motion in a 404 proceeding thus stops the running of the time to appeal, and Hible’s notice of appeal was timely.

Rouse v. United States, Case No. 20-2007, 2021 U.S. App. LEXIS 27795 (8th Cir., September 16, 2021)

United States v. Hible, Case No. 20-1824, 2021 U.S. App. LEXIS 27548 (7th Cir., September 14, 2021)

– Thomas L. Root

Resentencing Good Fortune Can’t Be Bootstrapped Into a New 2255 – Update for February 8, 2021

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GOING BACK TO THE WELL

nogoingback210208Any federal prisoner who has filed a post-conviction habeas corpus motion under 28 USC § 2255 knows that the § 2255 remedy – a powerful way to get as conviction overturned or sentence vacated – is pretty much a one-and-done thing: you can’t file a second § 2255 without permission from a court of appeals (pursuant to 28 USC § 2244). Getting that permission is a pretty tall order, requiring that you show there’s a new Supreme Court decision that the Court has decided should be applied retroactively to cases already decided, or you have some newly-discovered evidence that is so boffo that the jury would have acquitted you and the judge himself would have driven you home.

Charlie Armstrong thought he had found a work-around that would let him file a second § 2255 without having to jump through the § 2244 hoop. After being convicted and imprisoned on a marijuana charge, Charlie found himself to be the beneficiary of the Sentencing Commission’s 2014 reduction of drug-crime scoring for Guidelines sentence. The change was essentially an across-the-board reduction of two levels, and people already sentenced were allowed to apply two their sentencing judges for discretionary resentencing applying the 2-level reduction under the procedure laid out in 18 USC § 3582(c)(2).

After his conviction but before the 2014 Guidelines reduction, Charlie filed a § 2255 motion alleging ineffective assistance of trial and appellate counsel. While the § 2255 motion was pending, the Sentencing Commission adopted Amendment 782, and after Charlie applied to his sentencing court, his judge cut his sentence by 25%.

mulligan190430Some time later, the district court got around to denying Charlie’s § 2255 motion (which, alas, is the fate of most such motions). Charlie promptly filed a second § 2255, challenging his newly-reduced sentence on the basis of ineffective assistance of his attorney. Charlie explained that he didn’t need § 2244 permission to file the new motion, because his 2-level reduction was a new, intervening judgment giving him the right to challenge the new sentence with a § 2255, essentially giving him a § 2255 mulligan.

The district court disagreed, and dismissed the new § 2255 petition as a second or successive motion.

The 2010 Supreme Court Magwood v. Patterson decision held that if “there is a ‘new judgment intervening between the two [§ 2255] petitions, an application challenging the resulting new judgment is not second or successive.” With this opinion in hand, Charlie appealed the district court’s denial, arguing his 2-level reduction was the exactly the kind of new judgment Magwood had in mind.

doover210208Last week, the 11th Circuit turned him down. The Circuit said that in Magwood, the sentencing court “conducted a full resentencing and reviewed the aggravating evidence afresh,” the 11th said, giving the sentencing judge a chance to commit new errors or to repeat the same errors as in the original sentence. But a § 3582(c)(2) sentence reduction “does not authorize a sentencing or resentencing proceeding.” Instead, it simply “provides for the ‘modification of a term of imprisonment’ by giving courts the power to ‘reduce’ an otherwise final sentence in circumstances specified by the Commission.”

Armstrong v. United States, Case No 18-13041, 2021 U.S. App. LEXIS 3265 (11th Cir., February 5, 2021)

– Thomas L. Root

Melon Thumping at the Supreme Court – Update for April 2, 2020

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SCOTUS PUNTS ON SUCCESSIVE 2255 MOTION CASE

thumpmelon200402The Supreme Court last week refused to hear a challenge to 28 USC § 2244, the statute governing when prisoners should be permitted to file a second or successive habeas corpus motion under 28 USC § 2254 (for state prisoners) or 28 USC § 2255 (for federal prisoners). The denial is noteworthy for Justice Brett Kavanaugh’s published statement that the high court should settle a circuit split on the issue the next time a similar case comes before it.

Section 2244 states that a second or successive habeas corpus application filed under § 2254 must be dismissed unless it meets one of two very narrow exceptions, being based on a new Supreme Court retroactive constitutional ruling or on newly-discovered facts that just about guarantee the petitioner would have been acquitted by a jury. Like the Biblical eye-of-the-needle, it’s a pretty tight standard to squeeze through.

Although § 2244 by its express terms applies to § 2254 motions, federal appellate courts have traditionally interpreted the provision to apply to § 2255 motions as well.

Ed Avery filed a successive § 2255 motion, but the district court dismissed it based on his failure to get appellate court permission to file under 28 USC § 2244. He appealed to the 6th Circuit, which upheld the dismissal in an unpublished opinion. Six federal courts have ruled that the § 2244 dismissal statute applies to § 2255 motions. But last fall, the 6th Circuit flipped on the issue, holding in a published opinion that § 2244 clearly did not apply to a § 2255 motion.

In the appellate court world, a published opinion becomes precedent that binds all courts, even three-judge panels on the Court of Appeals. An unpublished opinion, along with about $5.00, will get you a venti latte at Starbucks. Ed, no latte drinker, wanted the published opinion to apply to his case, too. Having no other avenue, he went to the Supreme Court.

ventilatte200402An influential Washington, D.C., law firm took up the battle for Ed, arguing in a petition for writ of cert that the 6th Circuit’s published contrary ruling created a circuit split that called for resolution. He faced no pushback: the government had already filed a brief in the 6th Circuit saying it agreed that 28 USC § 2244 does not apply to § 2255 motions.

Predicting what cases the Supreme Court will decide to hear is more of an art than a science. The issue can be one the Court would like to decide, but it may still decline to review a case if the justices don’t think the facts of the case are quite right. It’s kind of like thumping melons in the produce section to decide which one is ready to eat. As you get better at it, you can find a good one more often. But in the end, it’s still how you hear the “thump” on any given day.

The Supremes decided for whatever reason that Ed’s case was not the right one to review in order to resolve the circuit split. Nevertheless, Justice Kavanaugh noted in a separate statement (which in itself is unusual on a denial of certiorari) that “[i]mportantly, the United States now agrees with the Sixth Circuit that ‘Section 2244(b)(1) does not apply to Section 2255 motions’ and that the contrary view is ‘inconsistent with the text of Section 2244.’ In other words, the Government now disagrees with the rulings of the six Courts of Appeals that had previously decided the issue in the Government’s favor. In a future case, I would grant certiorari to resolve the circuit split on this question of federal law.”

Avery v. United States, 2020 U.S. LEXIS 1651 (certiorari denied March 23, 2020)

– Thomas L. Root

Supreme Court Davis Decision Declared Retroactive By 11th Circuit – Update for July 29, 2019

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11th CIRCUIT HOLDS DAVIS TO BE RETROACTIVE

I have been asked a lot in the last month whether the Supreme Court decision in United States v. Davis would apply retroactively to convictions for using or carrying a gun during a violent or drug crime (violation of 18 U.S.C. § 924(c)) that were already final when the Davis decision was handed down June 24th. While I have always been sure that Davis ought to be retroactive, I was never completely confident that the courts of appeal would agree with me.

retro190729Last Tuesday, the 11th Circuit surprised me in a good way. Faced with a motion for permission to file a second-or-successive § 2255 motion (known as a “2244” because the request is filed under 28 USC § 2244) by a defendant whose § 924(c) conviction was based on a solicitation-to-murder count (and thus was invalid under Davis), the Circuit ruled that Davis is retroactive.

This retroactivity rule is important, because it opens the door for people who have filed 2255 motions already to get permission to file a second one challenging their § 924(c) convictions under the Davis ruling. Davis, you may recall, (1) affirmed that the categorical approach to judging whether a prior conviction was a crime of violence is the appropriate standard, rejecting several circuits’ claims that in a § 924(c) review, the court should look at a defendant’s actual conduct; (2) effectively ruled that conspiracies to commit crimes of violence (as well as solicitations and, quite possibly, attempts and accessories charges) are not crimes of violence; and (3) ruled that the § 924(c) residual clause, like the Armed Career Criminal Act and 18 USC § 16(b) residual clauses, was unconstitutionally vague.

violence160110The 11th Circuit held that Davis met all of the requirements for retroactivity. Davis announced a new substantive rule, because just as Johnson narrowed the scope of the ACCA, Davis narrowed the scope of 924(c) by interpreting the term “crime of violence.” And, the Circuit said, the rule announced in Davis is “new” because it extended Johnson and Dimaya to a new statute and context. “The Supreme Court in Davis restricted for the first time the class of persons § 924(c) could punish,” the appeals court said, “and, thus, the government’s ability to impose punishments on defendants under that statute. Moreover, the Supreme Court’s grant of certiorari in Davis to resolve the circuit split on whether § 924(c)(3)(B) was unconstitutionally vague illustrates that the rule in Davis was not necessarily dictated by precedent or ‘apparent to all reasonable jurists’.”

While the Supreme Court has not held Davis to be retroactive, the 11th said, “the Supreme Court holdings in “multiple cases… necessarily dictates retroactivity of the new rule.” Davis announced a new substantive rule, the 11th held, “and Welch tells us that a new rule such as the one announced in Davis applies retroactively to criminal cases that became final before the new substantive rule was announced.”

Two days later, the 11th Circuit held that another defendant would be allowed to pursue his 924(c) claims under Davis, despite the fact he had tried and failed to do the same under Johnson and Dimaya. The fact that he had previously lost the same issue would not preclude a successive 2255, despite the fact that 11th Circuit precedent in In re Baptiste suggested otherwise. The court said the defendant’s “proposed Davis claim is not barred under In re Baptiste (concluding that a repeat § 2255 claim that was raised and rejected in a prior successive application is barred by [28 USC] 2244(b)(1)).” Although the rationale underlying Johnson and Dimaya on which the defendant’s prior successive applications were based is the same rationale that underlies Davis, his prior losses do not bar him raising the Johnson/Dimaya claim again, because “Davis announced a new substantive rule of constitutional law in its own right, separate and apart from (albeit primarily based on) Johnson and Dimaya.”

knuckles190729Other courts of appeal will have to weigh in on Davis retroactivity for inmates seeking 2244 permission in those circuits, but the 11th position, laid out in a detailed and well-reasoned published opinion, will wield substantial influence on those courts. The 11th, after, is notoriously stingy in granting 2244 motions (it was the circuit that turned down Greg Welch, whose case went on to establish that Johnson was retroactive in Welch v. United States), as well as the appeals court whose Ovalles opinion was directly contrary to what the Supreme Court decided in Davis). That this Circuit has articulated a basis for Davis retroactivity so soon after having its figurative knuckles rapped is a welcome surprise.

In re Hammoud, 2019 U.S. App. LEXIS 21950 (11th Cir. July 23, 2019)

In re Cannon, 2019 U.S. App. LEXIS 22238 (11th Cir. July 25. 2019)

– Thomas L. Root

3rd Circuit Expands Second-and-Successive 2255 Rights – Update for September 12, 2017

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LISAStatHeader2small
ZAX’S PATIENCE REWARDED IN THE 3RD CIRCUIT

We reported several weeks ago that the 4th Circuit had joined the 6th in dodging the lingering question of whether Johnson v. United States applied to mandatory Guidelines sentences. Now, the 3rd Circuit has stepped into the breach.

violence151213The Armed Career Criminal Act provides that people with three prior convictions for serious drug offenses or crimes of violence face stiff mandatory minimum sentences. A crime of violence is defined as one of four specific offenses – burglary, extortion, arson or use of explosives – or any other crime that has as an element the actual or threatened use of physical force.

Up to two years ago, the ACCA’s definition has a third subcategory known as the residual clause. A crime of violence also included any crime that carried a substantial risk of physical harm to another. In Johnson, the Supreme Court ruled that this residual clause was so vague that the average person could not tell what offenses counted and what did not. Such a vague statute violates a defendant’s 5th Amendment due process rights. Because Johnson meant that a number of people serving ACCA sentences were in fact innocent of their offense, the Supreme Court held that it was retroactive, that is, that people already convicted could apply to courts with a 28 USC 2255 motion to obtain relief.

At the time, the ACCA definition of “crime of violence” appeared elsewhere in the criminal code as well as in the Guidelines, where it was used in several sections, especially in Chapter 4 to label someone a “career offender.” A “career offender” under the Guidelines faces dramatically increased sentencing ranges. Naturally, defendants serving long career offender sentences promptly filed for relief as well, despite the fact that Johnson only encompassed the ACCA, and not the Guidelines.

limitone170912Every federal criminal defendant is entitled to file one and only one 2255 motion after conviction, that filing being due within a year of the conviction becoming final. In order to file a second 2255, the defendant must request permission from the Court of Appeals first. Permission is granted only under limited circumstances, where there is newly discovered evidence that convincingly proves innocence, or where a new rule of constitutional law – like the Johnson holding – is made retroactive.

Soon after Johnson was decided in June 2015, Tom Hoffner asked the 3rd Circuit for permission to file a second 2255. He argued that Johnson was the new rule of constitutional law that should apply to his career offender sentence, which was handed down in 2000. Back then, judges were required by law to follow the Guidelines, which only changed in 2005 when the Supreme Court declared mandatory Guidelines unconstitutional in United States v. Booker.

zax170912Remember Dr. Seuss’s story of a North-Going Zax and a South-Going Zax, who run into each other? Both are trying to get to their desired locations, but neither will move out of the way to let the other one pass. While both stand facing each other, unmoving, the world continues on moving and time passes by.

Tom’s case was something like that. The statute directs courts of appeal to decide applications to file second 2255s within 30 days. Holding that the 30-day language in 28 USC 2244 is merely “advisory,” the 3rd Circuit required over two years to decide whether Tom should be allowed to file a second 2255.

While Tom patiently waited, toe to toe with the government like the two Zaxes, the world did not stand still. First, the Supreme Court decided in Welch v. United States that the Johnson holding should be retroactive. Then, the Supreme decided last March in Beckles v. United States that Johnson would not be extended to people who were career offenders under the advisory Guidelines, leaving open the question of whether Johnson could be extended to people like Tom who had become career offenders under the mandatory Guidelines.

After that, two cases that many thought would decide whether Johnson extended to mandatory Guidelines people the 6th Circuit in United States v. Raybon and the 4th Circuit in United States v. Brown – ended up turning on the decidedly procedural question of whether the 2255s had been filed on time.

rely170912Finally, Tom’s time came last Thursday. The 3rd Circuit handed down 25 pages of careful thought-out analysis on the issue, concluding that while Johnson did not necessarily address Tom’s precise issue, 2244(b) only looks at whether the movant’s claim “relies” on the new rule of constitutional law. Nothing mandates that it be precisely the same point that the movant wants to claim. Thus, if Johnson is a new rule of constitutional law applying to language in the ACCA, and Tom “relies” on that rule in his argument that the same vagueness infirmity afflicts a guideline used to sentence him, that reliance is enough to come within the statute.

The Circuit held that in analyzing 2244 motions, the court needed to lean toward grant.

The context of Section 2244(b)… supports interpreting “relies” permissibly and flexibly… As explained above, Congress has mandated that the “grant or denial of an authorization… shall not be appealable and shall not be the subject of a petition for rehearing or for a writ of certiorari.” 28 U.S.C. § 2244(b)(3)(E). This creates an asymmetry in the impact of our gatekeeping decision on a particular case… On one hand, if we erroneously deny authorization, the petitioner “will have no opportunity to appeal or seek rehearing.” On the other hand, “if we err in granting certification, ample opportunity for correcting that error will remain.” The district court will have the opportunity to determine anew whether the petitioner has “shown that the claim satisfies the requirements of this section,” and whether the habeas petition has merit… In turn, we may review the district court’s decision.

It’s not a done deal that Tom will win the 2255 motion he now has permission to file (although you could be forgiven for reading it like the 3rd thinks he will). But the Circuit seems pretty convinced that there’s some merit in his claim.

The significance of this decision, which the 3rd Circuit issued as precedential, is its thoroughness in discussing the 2244 process. In a world where most decisions on second-and-successive 2255s are three-page affairs, and where the statutory limitations on certiorari mean that the Supreme Court will never be able to opine on the matter, this decision is as much guidance as any court has ever given on 2244 practice.

In re Hoffner, Case No. 15-2883 (3rd Circuit, Sept. 7, 2017)

– Thomas L. Root

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2nd Circuit Says Mathis Is Nothing Special – Update for July 14, 2017

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

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YESTERDAY WAS A BUSY ONE IN MANHATTAN

silver170714All right, we’ll lead with what everyone is talking about: Yesterday, a three-judge panel of the 2nd Circuit – while holding its collective nose – threw out former New York State Assembly Speaker Sheldon Silver’s 2015 fraud and corruption conviction. As soon as the U.S. Attorney for the Southern District of New York could put down his coffee cup, he announced that his office would retry the case.

And why not? The Court of Appeals almost begged the prosecution to retry the case, this time with a correct set of jury instructions. “We recognize that many would view the facts adduced at Silver’s trial with distaste,” Judge José Cabranes wrote. “The question presented to us, however, is not how a jury would likely view the evidence presented by the government. Rather, it is whether it is clear, beyond a reasonable doubt, that a rational jury, properly instructed, would have found Silver guilty. Given the teachings of the Supreme Court in McDonnell, and the particular circumstances of this case, we simply cannot reach that conclusion.”

The Court ruled that the evidence in Silver’s high-profile trial was certainly enough to convict him of money laundering, Hobbs Act extortion and honest services fraud. But after the Supreme’s decision last summer in McDonnell v. United States, which narrowed the definition of “official acts,” a necessary element of bribery, the panel said the trial court erred by not properly instructing the jury on the charges of honest services fraud and extortion.

But we march to the tune of a different drummer, so our focus is on yesterday’s 2nd Circuit decision in Washington v. United States, one much more consequential to federal inmates.

burglary160502The Supreme Court’s decision last year in Mathis v. United States dramatically tightened the rules used in determining whether defendants’ prior state convictions fit the generic definitions of crimes used in “crime-of-violence” definitions sprinkled throughout the U.S. criminal code. The stakes are high: two defendants may have both committed three of the same types burglaries before being caught with a gun. But because the state statute under which one was convicted defined burglary to include breaking into cars as well as houses, those burglaries are not “burglaries” as defined in the Armed Career Criminal Act. That defendant gets 60 months in prison.

The other guy was convicted in a neighboring state’s statute, which defines burglaries as being committed only on structures. That is not too broad, so his burglaries qualify him for sentencing as under the Armed Career Criminal Act. He will get at least 180 months (15 years) under the ACCA, no matter how the judge might feel about it.

The ACCA is where the battle has mostly been fought, but similar “crimes-of-violence” definitions are used in the Sentencing Guidelines, in the statute on carrying a gun during a crime of violence (18 USC 924(c)) and in the general crime-of-violence definition in 18 USC 16(b), which has great consequence for immigrants subject to deportation for serious crimes.

diagram170714So Mathis, which limited when courts could look at the actual burglary conduct of the defendant and tightened how statutory terms could be defined (remember sentence diagrams in 7th grade English?), is as important to defendants as it is arcane. Of course, equally important to the defendants who have already been convicted and sentenced based on prior crimes of violence is whether the redefinition of the interpretative rules in Mathis is retroactive to their cases. Is Mathis a get-out-of-jail card?

The law substantially limits second bites of the post-conviction apple. Inmates who have filed habeas corpus motions under the statute (28 USC 2255) may not file second 2255 motions without getting prior permission from a court of appeals under 28 USC 2244. That permission is granted only where the new decision that will free them – in this case Mathis – is retroactive. If it’s retroactive, inmates have one year from the new decision’s issuance to file their second 2255.

There were some less-than-scrupulous “paralegal” firms busy earlier this year convincing inmates that they had to file for relief under Mathis by June 22, the one-year anniversary of Mathis. We complained a few months ago that there was no way Mathis could be held to be retroactive, and that filing a 2244 motion with the court of appeals was a waste of time and money.

Some guys didn’t get the message. One was Ronnie Washington, who was sentenced to 240 months’ imprisonment as a career offender under § 4B1.1 of the advisory Sentencing Guidelines. His 2244 motion to the 2nd Circuit asked permission to file a new 2255 motion on the grounds that his prior state law convictions for drug trafficking was unconstitutional in light of Mathis. Yesterday, the Court of Appeals turned him down.

A second or successive 2255 motion on a ground not previously presented is allowed only if the court of appeals certifies that the motion is based on either newly discovered evidence or “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.”

mathis170714Ronnie argued that Mathis “established a new rule that makes” his unconstitutional. The Court disagreed, finding that Ronnie’s “view of Mathis is without merit, as its holding was not based on the Constitution and was based on a rule applied for decades,” at least since the Supreme Court’s 1990 decision in Taylor v. United States. The Court said, “In sum, the Mathis Court was interpreting ACCA, not the Constitution… And although the Mathis Court noted that its ACCA interpretation had been based in part on constitutional concerns, those concerns did not reflect a new rule, for “Taylor set out the essential rule governing ACCA cases more than a quarter century ago.”

The 2nd Circuit decision joins those of three other circuits – the 5th, 7th and 11th – in holding that whatever Mathis may be, it’s not retroactive.

Washington v. United States, Case No. 17-780 (2nd Circuit, July 13, 2017)

– Thomas L. Root

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