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RULE 4 SHOULD BE USED SPARINGLY IN 2254/2255 CASES, 9TH HOLDS
A 28 USC § 2255 motion often seems to be stacked against the movant. The district court can throw it out on its own if the judge thinks it “plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief.” If the court tells the government to answer, the judge can then deny the motion without allowing for discovery or an evidentiary hearing. If there is a hearing, the court can then deny it.
Pat Neiss filed a state habeas claim that his Montana conviction should be set aside because his lawyer was ineffective. He was denied by the state courts, so he filed a 28 USC § 2254 petition in district court. Thirteen days after he filed, the district court summarily dismissed Pat’s petition with prejudice, holding that Pat’s claim was not cognizable because his trial counsel “moved repeatedly, in different contexts, to suppress the evidence,” even though he failed to make the one suppression motion – a particularity claim – that would have worked.
The district court cited Strickland v, Washington’s statement that “Counsel’s decision to focus on certain aspects of these attacks rather than on others does not cause their performance to ‘f[a]ll below an objective standard of reasonableness.”
A 9th Circuit decision last week reversed the summary dismissal, warning judges to err on the side of the petitioner in applying Rule 4.
The Circuit held that Rule 4 permits summary dismissal of claims on the basis of lack of cognizability only where the allegations in the petition are vague, conclusory, palpably incredible, or patently frivolous or false.” Rule 4’s standard, the Court said, “essentially is whether the movant has made specific factual allegations that, if true, state a claim on which relief could be granted… Our case law has made clear that as long as a petition has any potential merit, it is not so frivolous or incredible as to justify summary dismissal under Rule 4. The legal term ‘frivolous’ is defined in Black’s Law Dictionary as ‘lacking a legal basis or legal merit; manifestly insufficient as a matter of law.’ And 9th Circuit case law is in accord.”
Here, the 9th said, Pat’s petition alleged that his trial counsel provided ineffective assistance when counsel waived a meritorious particularity objection to a search warrant. The Supreme Court has recognized that an ineffective assistance of counsel claim may be based on defense counsel’s failure to litigate a 4th Amendment claim competently. Thus, these allegations state a cognizable claim on which relief could be granted, the Circuit held.
Nothing on the face of Pat’s petition plainly showed that his particularity objection to the search warrant lacked merit as a matter of law or that trial counsel’s failure to object on that ground could not have prejudiced him. But rather than conducting this analysis, the district court ruled that regardless of whether a particularity challenge was made, counsel’s wide and repeated efforts to get the computer search evidence suppressed were objectively reasonable.”
At the summary dismissal stage,” the 9th held, “district courts must consider only whether a claim is frivolous, not whether it is ultimately—or likely—a winner or loser.”
Neiss v Bludworth, Case No. 22-35877, 2024 U.S. App. LEXIS 20752 (9th Cir., August 16, 2024)
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WHERE THERE’S A WILL, THERE’S A PROCEDURAL WAY
Mike Bowe was convicted of an attempted Hobbs Act robbery, during which a gun was fired. So he was convicted as well of an 18 USC § 924(c) violation for the gun and received a sentence for an additional 10 years. After the Supreme Court decided United States v. Davis back in 2019, Mike filed a motion for 11th Circuit permission to file a second § 2255 motion arguing that his predicate Hobbs Act attempt was not a crime of violence to which a § 924(c) could attach.
The Circuit turned him down, holding that Mike’s § 924(c) conviction was predicated in part on attempted Hobbs Actrobbery, which remained a qualifying “crime of violence” (COV) under circuit precedent. But after that, the Supreme Court decided United States v. Taylor in 2022, holding that an attempted Hobbs Act robbery was not COV, meaning that Mike had been right all along.
Being right doesn’t count for much in the world of habeas corpus. When Mike again asked for permission to file a successive § 2255 motion, the 11th Circuit again turned him down, this time because 28 USC 2244(b)(1) – part of the statute governing the procedure for getting permission for a successive § 2255 motion – barred him from raising an issue already denied in a prior § 2255 motion. No matter that the Circuit had denied that claim under erroneous, pre-Taylor precedent. Mike did everything right; his § 924(c) conviction was plainly invalid; and, but for the misapplication of § 2244(b)(1), he would now be a free man.
Under 28 USC § 2244, a prisoner who is denied the right to bring a second or successive § 2255 motion is not allowed to appeal the denial any further. It’s over. But Mike had some canny lawyers, and they filed a petition for habeas corpus with the Supreme Court, a permissible but seldom used gambit. They pointed out that under 28 USC § 2244(b)(1), a federal court must dismiss a “claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application.” 28 USC § 2244(b)(1). But state prisoners seek federal post-conviction relief under § 2254. Federal prisoners seek post-conviction relief under § 2255. Mike argued that three Circuits agreed that § 2244(b)(1) only affected state prisoners: Mike was free to bring his attempted Hobbs Act COV claim again, and that their position – not the view of the six circuits going the other way – should prevail.
The Government agreed with Mike.
On Wednesday, the Supreme Court denied Mike’s § 2241 petition for habeas corpus. No surprise there: the Court hasn’t granted habeas to a federal prisoner in a long time. But what is noteworthy is that Justice Sonia Sotomayor joined Justice Kavanaugh in calling for a grant of review to decide the split.
But how to do that? Because the Government agrees § 2244(b)(1) doesn’t apply to federal prisoners, if one of the three circuits agreeing with that position grant permission for a second-or-successive § 2255, there will never be a petition for certiorari filed by the Government. But if the petitioner is in one of the six circuits that say that § 2244(b)(1) applies to federal prisoners as well as state prisoners, permission to file a second-or-successive § 2255 in a case like Mike’s will never be granted, and the unfortunate prisoner will not be allowed to seek certiorari.
Justice Sotomayor admitted that “[t]here are considerable structural barriers to this Court’s ordinary review via certiorari petition.”
A petition cannot reach the Supreme Court from the three Circuits that read § 2244(b)(1) to apply only to state prisoners. Before a federal prisoner can file a second or successive habeas corpus § 2255 motion, a court of appeals must certify it. When a federal prisoner files a second or successive § 2255 motion that raises an issue he has raised previously, neither the court of appeals nor the district court will apply § 2244(b)(1)’s bar. If the court of appeals certifies the motion, the district court will decide it on the merits.
A petition cannot reach the Supreme Court from the six Circuits that apply § 2244(b)(1) to both state and federal prisoners either. In those Circuits, the court of appeals will apply § 2244(b)(1)’s bar and deny certification to any second or successive § 2255 motion that raises an issue the prisoner has previously raised. Neither the Government nor the prisoner can seek review of that interpretation of § 2244(b)(1) from this Court, however, because the law bars petitions for certiorari stemming from “[t]he grant or denial of an authorization by a court of appeals to file a second or successive application.”
Mike tried to invoke the Supreme Court’s jurisdiction to entertain original habeas petitions under § 2241(a). However, as Justice Sotomayor said, “The standard for this Court’s consideration of an original habeas petition is a demanding one. A petitioner must show both that ‘adequate relief cannot be obtained in any other form or from any other court” and “exceptional circumstances warrant the exercise of the Court’s discretionary powers. Whether Mike has met that demanding standard here is questionable,” the Justice wrote, “because it is not clear that, absent § 2244(b)(1)’s bar, the 11th Circuit would have certified his § 2255 motion.”
But the Circuit split needs to be settled, the Justice said, and thus, she “would welcome the invocation of this Court’s original habeas jurisdiction in a future case where the petitioner may have meritorious § 2255 claims. The Government also suggests that a court of appeals seeking clarity could certify the question to this Court. In the meantime, in light of the demanding standard for this Court’s jurisdiction over original habeas petitions, I encourage the courts of appeals to reconsider this question en banc, where appropriate.”
Writing in his Sentencing Law and Policy blog, Ohio State law professor Doug Berman observed, “I still recall fondly when the Second Circuit in United States v. Penaranda, a full 20 years ago, certified three questions to SCOTUS concerning the application of Blakely to the federal sentencing system. I am not sure if there have been any other circuit certifications in the last two decades, but I am sure it is interesting to have two Justices flag this notable means of getting an issue on the SCOTUS docket”
Where there’s a will on the Supreme Court to hear an issue, there’s a way to get it there. Just not for Mike and not for today.
In re Bowe, Case No. 22-7871, 2024 U.S. LEXIS 988 (February 20, 2024)
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COUNSEL’S INVESTIGATION IS A GOOD IDEA, 3RD CIRCUIT SAYS
Socrates is reputed to have said that “the unexamined life is not worth living.” The 3rd Circuit reminded us last week that an attorney’s unexamined defense strategy is not worth crediting.
Two guys, Ron Rogers and Demetrius Hayes, got into a shootout on a Philadelphia street. Neither one hit the other, but Ron’s friend Bill Green got hit by a stray bullet from Ron’s gun. He died, and both Ron and Demetrius were charged by the Commonwealth with murder.
Demetrius got tried first. One witness, Myra Summers, said she wasn’t sure who had fired first. Another witness, Tyrone Singleton – who was Demetrius’s friend – said Ron fired first. Demetrius was acquitted.
A week later, Ron went to trial. Now, Ty’s testimony took an abrupt turn, naming Demetrius — not Ron —as the first shooter. Without pointing out Tyrone’s flip, the prosecutor continued questioning Singleton for a bit before the trial judge ended proceedings early for the day. After excusing the jury, the judge admonished Ty for his inconsistent testimony, saying he committed “perjury on the record.” The judge warned Tyrone that if he was “playing some little game here,” the judge would ensure he “receive a maximum consecutive sentence” for perjury. The judge encouraged him to “[d]o some long hard thinking” before resuming his testimony, because if “you say that [Demetrius shot first] again, it is perjury.”
Through this harangue, Ron’s lawyer raised no objection.
Unsurprisingly, Tyrone got it. The next day, he suddenly remembered that Ron – not Demetrius – shot first. Ty explained he “made a mistake” the day before, chalking the error up to nervousness. Again, Ron’s lawyer said nothing. In fact, not only did he not object, he didn’t even bother to cross-examine Tyrone about the changed testimony. Ron was convicted of third-degree murder and sentenced to 16 to 32 years in prison.
Ron claimed ineffective assistance of counsel in a state post-conviction claim. When he lost, he took it to federal court, where a district judge held that the state court conclusion that Ron’s lawyer was not ineffective made perfect sense.
Last week the 3rd Circuit disagreed, and granted Ron’s 28 USC § 2254 motion. It rejected the claim of Ron’s attorney that “he had no basis for objecting to the admonishment because regardless of how Tyrone testified, his testimony would not have been determinative because he lacked credibility.” Counsel said his strategy was to rely on Myra Summers, who counsel said was the more credible witness despite the fact she had testified the week before that she didn’t see who shot first.
The 3rd Circuit complained that Ron’s counsel had neither seen nor read Myra’s testimony the week before. The Circuit observed that an attorney’s duty to test the government’s case requires that “defense counsel has done some investigation into the prosecution’s case and into various defense strategies”. The constitutional standard for ineffective assistance – established almost 40 years ago in Strickland v, Washington – is the same whether counsel screws up in a state or federal criminal proceeding. Here, the 3rd ruled, the state courts had unreasonably applied Strickland when they found Ron’s counsel’s performance adequate, “having failed to properly consider prevailing professional standards.”
And that wasn’t all, the Circuit said. Pennsylvania law firmly established that a trial judge admonishing a witness about perjury if he or she persisted was reversible error. The witness says what the witness says, and any such threat in the middle of testimony puts “pressure on a witness to testify in a particular way.” For Ron’s lawyer to believe that the trial judge’s threats against witness Tyrone were permissible was deficient performance, the 3rd said. “An attorney’s ignorance of a point of law that is fundamental to his case combined with his failure to perform basic research on that point is a quintessential example of unreasonable performance under Strickland.”
“So too,” the appeals court said, with counsel’s later failure to cross-examine Ty regarding his changed testimony. “Counsel characterized Singleton as a liar, trying to help his buddy out, whose testimony would not be determinative of the outcome of this case, Not so,” the 3rd Circuit said. “Singleton was the only witness to ever claim Ron shot first — the ultimate issue in the case. And Singleton’s pre-admonishment testimony to the contrary, which aligned with Myra Summer’s original eyewitness statement, would benefit the defense by casting doubt on Singleton’s earlier implication of Rogers… Counsel’s performance [is] deficient when he, among other failures, neglected to “adapt his argument to the testimony in evidence.”
But winning an ineffective assistance of claim also requires a finding of prejudice. The state court found Ron had not shown “that but for the act or omission in question, the outcome of the proceedings would have been different.” But Strickland is clear that the standard is just “a reasonable probability that . . . the result of the proceeding would have been different.” By requiring Ron to prove the outcome would have changed, the state court applied a standard “contrary to… clearly established Federal law, as determined by the Supreme Court.”
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11TH CIRCUIT SENDS § 2255 MOTION BACK TO DISTRICT COURT FOR CLISBY ERROR
A Clisby is not – to the best of my knowledge (and I try to keep up with this sort of thing because my three grandkids expect nothing less) – the hottest new toy this Christmas season. Instead, Clisby is an 11th Circuit decision that requires a federal district court “to resolve all claims for relief raised in a petition for writ of habeas corpus… regardless whether habeas relief is granted or denied.” The holding applies to § 2254 and § 2255 motions alike.
Cliff Senter filed a § 2255 motion claiming that his Armed Career Criminal Act conviction could not stand after Johnson v. United States was decided, because one of the priors it relied on was an attempted Alabama robbery, and – because no such crime was on the books in Alabama when he was convicted of it – it had no elements, and thus could not be matched with the elements test of 18 USC § 924e.
It was a pretty solid argument, but the district court misinterpreted it to be a collateral attack on the attempted robbery conviction. While a post-conviction movant can argue that a state prior conviction doesn’t meet the ACCA test, he or she cannot argue that the state conviction is invalid and should be thrown out. That question needed to be resolved by the state courts that imposed the conviction to begin with. The district court thought that Cliff was attacking the validity of the Alabama attempted robbery conviction, and held Cliff couldn’t do that in a § 2255 motion.
Of course he could not, but sometimes an argument does double duty, and when that happens, the court has to apply it to the issue properly before it, even if it could apply equally to an issue that – if raised – would not properly be before it. Last week, the 11th Circuit reversed the dismissal of Cliff’s § 2255 motion, holding that
“when a habeas petitioner… presents a claim in clear and simple language such that the district court may not misunderstand it,” a district court must address and resolve the claim. In this case, Senter clearly raised the claim that his ‘attempted robbery cannot qualify as a violent felony under either the force clause or as an enumerated offense because it is a non-existent offense and therefore does not have any elements and by misconstruing it as a collateral attack on his state conviction, the district court failed to resolve his actual claim and violated Clisby.”
To be sure, a district judge may grow weary of deciding an especially prolix § 2255 motion – with issue after issue, and each issue having multiple sub-issues which themselves have multiple sub-parts – but that’s what comes with the cool robe and lifetime sinecure.
This decision remind us thatClisbywill cause a case to be sent back until the district court finishes all of the paperwork.
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SCOTUS PUNTS ON SUCCESSIVE 2255 MOTION CASE
The 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.
An 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.”
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3RD CIRCUIT RULES PREJUDICE NEED NOT BE SHOWN IN ATTORNEY INEFFECTIVENESS CASE
Most post-conviction motions brought under 28 USC 2254 or 2255 fail, especially the ones that claim that the defendant’s lawyer was ineffective. It is not that hard proving that the lawyer screwed up. That happens all the time. Instead, the problem is that the defendant has to show that if the lawyer had not messed up, there is a reasonable chance that things would have turned out different.
This “prejudice” showing is what trips up most such motions. After all, if a busload of nuns passing by saw you run out of the bank with a sack of money and a gun, it is pretty tough to convince the court that you would have been acquitted if only your lawyer had called your mother to the stand to swear you were at home helping her bake cookies.
The problem with post-conviction prejudice showings is what a 3rd Circuit decision last week so noteworthy. In August 2006, Gary Moses shot Lawson Hunt in Philadelphia. Hearing the shots, Jeff Workman ran to the victim, saw Gary and opened fire at him. One of Jeff’s bullets ricocheted off a solid object and struck the victim in the chest, who died (but of which shot no one was sure).
Jeff and Gary were both charged with first-degree murder. Before trial, Jeff’s lawyer told him that he could not be convicted, because the victim was already dead when Jeff’s bullet hit him. At trial, Jeff’s lawyer built his whole case on that fact, arguing to the jury that Jeff could not be found guilty because you cannot murder a dead man.
Except it was not a fact. The only evidence in the case record showed that the victim was still alive when Jeff’s bullet struck him. Jeff’s lawyer ignored this inconvenient fact. The jury did not. It convicted Jeff but acquitted Gary.
The 3rd Circuit last week ruled that Jeff’s lawyer gave substandard assistance that pervaded the whole proceeding. But normally, that’s not enough. Jeff was obligated to prove that if his lawyer had advanced a defense based on the facts in the case, Jeff might have been acquitted. Now how can he prove something like that?
The 3rd Circuit said that under the circumstances of the case, Jeff didn’t need to show prejudice. In United States v. Cronic, the Supreme Court held back in 1984 that “if counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing, then there has been a denial of 6th Amendment rights that makes the adversary process itself presumptively unreliable.” Employing the Cronic holding, the 3rd Circuit ruled that Jeff need not show any prejudice:
Trial counsel’s failure to present a case on behalf of Workman or to modify his theory of the case to account for, if not rebut with evidence, the testimony offered by the Commonwealth, represents a near-total failure on the part of trial counsel to contest the Commonwealth’s case. This is not to say that the decisions not to call a rebuttal expert on a defendant’s behalf or to decline to call fact witnesses in a defendant’s case-in-chief are inherently unreasonable. Here, however, they clearly derived not from a legitimate and reasonable trial strategy but from trial counsel’s failure to understand what was happening in the case in which he was ostensibly participating. The Commonwealth sought to prove that Workman killed Hunt, but Workman’s counsel sought only to prove his chosen theory seemingly without regard for the facts in evidence. This deprived Workman of his 6th Amendment right to counsel.
Jeff will get a new trial, where exactly how the victim was killed to death will be addressed.
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7th CIRCUIT SAYS KIDNAPPING NOT CRIME OF VIOLENCE
Antwon Jenkins was convicted of kidnapping and carrying a firearm during a crime of violence. He appealed, claiming the government had violated the plea agreement. He got 188 months for the kidnapping and another 120 months for the 18 USC 924(c) charge.
Before the appeal was decided, Johnson v. United States was decided by the Supreme Court, holding the residual clause of the Armed Career Criminal Act was unconstitutionally vague. Antwon amended his appeal to claim that the 924(c) conviction was void, because kidnapping could only be a crime of violence under the residual clause, making the conviction unconstitutional under Johnson.
Last Friday, the 7th Circuit agreed. It found that the first element of kidnapping – unlawfully seizing, confining, inveigling, decoying, kidnapping, abducting, or carrying away — does not necessarily require the use of force. The government argued that because the second element, holding for ransom or reward or otherwise, must be unlawful, it necessarily requires at a minimum the threat of physical force, but the Circuit disagreed. “Holding can be accomplished without physical force. For example, a perpetrator could lure his victim into a room and lock the victim inside against his or her will. This would satisfy the holding element of kidnapping under 18 USC § 1201(a) without using, threatening to use, or attempting to use physical force.”
The decision brings the 7th Circuit into harmony with other circuits that have held that similar crimes of false imprisonment and kidnapping by deception do not have physical force as an element.”
Antwon had not raised the issue in the trial court, but the 7th found that despite this, he had met the stringent FRCrimP 52(b) “plain error” standard for bringing it up for the first time on appeal. The Court said, “A 120‐month prison sentence for a nonexistent crime undermines the fairness of the judicial proceedings and cannot stand.”
For state prisoners who have exhausted their habeas corpus claims, 28 USC § 2254 permits filing the claims in federal court. Such cases are not easy to win, because federal courts will go with the state court’s decision unless it’s absolutely unreasonable. Even filing the cases on time is tough.
Mostly, 2254 does not affect federal prisoners, but a decision last Friday by the 11th Circuit delivers a stark message that federal inmate litigants should take to heart: if your lawyer drops your case without telling you, that’s one thing. But if he or she is just stupid – even really, really stupid – you’re bound by counsel’s mistakes.
Ernest Cadet, a Florida prisoner, was denied habeas corpus relief in state court. Under the convoluted rules that apply to 2254 motions, his one-year clock then started running for filing in federal court. It stopped with only 5 days left when he filed for review with the Florida Supreme Court.
But even an average lawyer should know how to count…
While his Supreme Court petition was pending, Ernie hired Attorney Goodman, a guy who may have been a “good man” but was a lousy attorney. When the Supreme Court turned Ernie’s motion down, the inmate told Goodman they didn’t have much time to file a 2254. He said inmates in the law library warned him that he had to act fast. Goodwin replied he had read the statute, and Ernie had a full year, asking “who are you going to believe, the real lawyer or the jailhouse lawyer?”
The correct answer was “the jailhouse lawyer.” Goodwin filed the motion within the time he thought Ernie had, but it really about a year late. The federal district court threw out the petition as untimely. Ernie appealed.
The 11th Circuit upheld the dismissal. Inmates love to talk about “equitable tolling” as an end run around statutory deadlines, but the plain fact, the Circuit said, is that equitable tolling is an extraordinary remedy “limited to rare and exceptional circumstances and typically applied sparingly.” To warrant equitable tolling, a prisoner has to show he has been pursuing his rights diligently but that some extraordinary circumstance prevented timely filing.
The Court said attorney miscalculation of a filing deadline “is simply not sufficient to warrant equitable tolling, particularly in the post-conviction context where prisoners have no constitutional right to counsel.” The relevant distinction should be between attorney negligence – which is “constructively attributable to the client” – and “attorney misconduct that is not constructively attributable” to the client because counsel has abandoned the prisoner. A lawyer’s “near-total failure to communicate with petitioner or to respond to petitioner’s many inquiries and requests over a period of several years” might be abandonment. “Common sense,” Justice Alito concluded in a prior Supreme Court case, “dictates that a litigant cannot be held constructively responsible for the conduct of an attorney who is not operating as his agent in any meaningful sense of that word.”
The problem in this case is that Goodman never abandoned Ernie. He kept communicating, but arrogantly dismissed the possibility Ernie and his jailhouse lawyer friends might be right without doing as much as five minutes’ worth of research to see whether they might be.
Ernie “acted with reasonable diligence,” the Court said, “but the reasonable diligence and extraordinary circumstance requirements are not blended factors; they are separate elements, both of which must be met before there can be any equitable tolling.” Just because an agent (the lawyer) is grossly negligent does not mean he had abandoned his principal (the client).
Goodman was stupid, but he did not disappear on Ernie. The 11th held that “because the attorney is the prisoner’s agent, and under well-settled principles of agency law, the principal bears the risk of negligent conduct on the part of his agent… as a result, when a petitioner’s post-conviction attorney misses a filing deadline, the petitioner is bound by the oversight.
In a remarkable decision handed down by the 4th Circuit last Thursday, a deaf inmate’s claim that the BOP violated his 8th Amendment and 1st Amendment rights by denying him a sign-language interpreter and videophone link.
The inmate complained that he was denied an interpreter to assist at medical appointments, and to enable him to take a class required because of the nature of his offense. He also said communications with the outside was limited to an antiquated TTY phone device, which he could only use when a BOP staff person trained in TTY was available to supervise. Often, he said, he was denied TTY access because of staff shortages or just because of arbitrary reasons, and he could never use the TTY on nights or weekends.
The Circuit reversed a district court decision that threw out all of the claims, saying the inmate did not have to show he had been harmed by the 8th Amendment deliberate indifference, just that there was a substantial risk of harm. As for the 1st Amendment claim, the Court swept away BOP claims of the security risks of a videophone, holding that the Bureau could easily monitor videophone calls just as it did TTY calls.
The BOP tried to derail the case by promising to provide interpreters in the future, stating that inmates would be provided “with a qualified interpreter… if necessary for effective communication during religious ceremonies or programs.” That was good enough for the district court, but the 4th swept the promises aside: “It is well established that a defendant’s voluntary cessation of a challenged practice moots an action only if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur,” the Court said. “Even if we ignore the equivocation inherent in the promise to provide interpreters ‘if necessary’ the statement amounts to little more than a ‘bald assertion’ of future compliance, which is insufficient to meet BOP’s burden.”
So many ways to lose!
Here, the 9th said, Pat’s petition alleged that his trial counsel provided ineffective assistance when counsel waived a meritorious particularity objection to a search warrant. The Supreme Court has recognized that an ineffective assistance of counsel claim may be based on defense counsel’s failure to litigate a 4th Amendment claim competently. Thus, these allegations state a cognizable claim on which relief could be granted, the Circuit held.
