Tag Archives: 2255

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

Supreme Court Loosens 2255 ‘Second or Successive’ Restrictions – Update for January 12, 2026

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SCOTUS GUTS § 2244 LIMITATIONS ON SUCCESSIVE § 2255 MOTIONS

For federal prisoners, the only workable means of challenging an unlawful conviction or sentence after direct appeal rights have lapsed is through a petition for writ of habeas corpus. Such a petition is brought through a mechanism provided by 28 USC § 2255.

The procedure is restricted as to timing and frequency: generally, the motion must be filed within a year of the end of direct appeal rights. What’s more, it is a one-to-a-customer filing: to bring a “second or successive” § 2255 motion, the prisoner must get advance approval from the Court of Appeals, and the new filing must fit within very narrow restrictions described in 28 USC § 2255(h).

Congress adopted the restrictions in the Antiterrorism and Effective Death Penalty Act some 30 years ago. I have railed about the AEDPA often enough, so here I will just mention that constitutional abomination in passing.

Back in 2008, Michael Bowe was convicted 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. In 2016, after the Supreme Court invalidated the residual clause in the Armed Career Criminal Act, Mike filed a § 2255 motion arguing that § 924(c)’s residual clause was unconstitutional as well. The District Court denied the motion, reasoning that – regardless of the residual clause’s constitutionality – he was not entitled to a second bite of the apple because attempted Hobbs Act robbery qualified as a “crime of violence” under the elements clause of the statute.

In 2019, after United States v. Davis held that conspiracy to commit a violent crime was not itself a violent crime, Mike sought permission from the 11th Circuit under § 2255(h) to file a second or successive motion raising whether his § 924(c) conviction should be thrown out. A three-judge panel found that while Davis announced a new, retroactive constitutional rule (one of the two statutory gateways for successive motions under § 2255(h)(2)), Mike could not show that his § 924(c) conviction was unconstitutional because Circuit precedent still treated attempted Hobbs Act robbery as a crime of violence under the elements clause.

After United States v. Taylor held in 2022 that attempted Hobbs Act was not a crime of violence either, Mike once again asked the 11th Circuit for authorization under § 2255(h), arguing that Davis and Taylor left neither of his Hobbs Act convictions as a valid predicate 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 28 USC § 2244(b)(1). That statute on its face applies to state prisoners seeking leave to file a second 28 USC § 2254 petition in federal court, not federal prisoners proceeding under § 2255. Nevertheless, language in § 2255(h) has led courts to ambiguously apply § 2244(b)(1) to federal § 2255 movants as well.

The Circuit panel also denied the part of Mike’s request that rested on Taylor because Taylor did not announce a new constitutional rule within the meaning of § 2255(h)(2).

Mike didn’t give up, going back to the 11th several times, seeking authorization to pursue a § 2255 motion, asking for an en banc hearing, and seeking reversal of Circuit precedent applying § 2244(b)(1)’s old-claim bar to federal prisoners’ successive § 2255 motions. He also requested certification of the question whether § 2244(b)(1) applied to federal prisoners at all. But the 11th turned down all of his entreaties.

Mike eventually filed for a Supreme Court review, pointing out that while six Circuits apply § 2244(b)(1)’s old-claim bar to federal prisoners, three others held that it only applied to state prisoners seeking leave to file a second § 2254 petition in federal court.

Last Friday, the Supreme Court ruled for Mike.

First, the Justices held 5-4 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, that provision does not apply to federal prisoners. The Supremes reasoned that the limitation is housed within § 2244, “which imposes several strict requirements that apply only to state prisoners.” What’s more, § 2244(b)(3)(E) addresses only “second or successive application’ but “unlike state prisoners who file such ‘applications,’ federal prisoners file ‘motions’.”

The Supreme Court also ruled 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 alone: “That specific reference to § 2254 was deliberate: Elsewhere in this very section, Congress expressly distinguishes § 2254 “applications” from § 2255 “motions… When interpreting statutes, the Court presumes that “differences in language like this convey differences in meaning.” By its plain terms, § 2244(b)(1)’s old-claim bar applies only to state prisoners.”

In the Bowe decision, SCOTUS resoundingly underscores that “the best textual reading of both § 2255(h) and § 2244(b) is that, when a federal prisoner moves for authorization [to file a successive § 2255], a panel can authorize the filing if the filing makes a prima facie showing that it satisfies one of the two grounds in § 2255(h), the ‘two—and only two—conditions in which a second or successive § 2255 motion may proceed’,” quoting Jones v. Hendrix.

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

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

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

Jones v. Hendrix, 599 U.S. 465 (2023)

~ Thomas L. Root

Santa Courts Deliver Post-Conviction Coal – Update for December 18, 2025

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

A CHRISTMAS LIST

A few appellate court holdings for your stocking (even if they seem to be lumps of coal):

Incompetence Here and There: Airrion Blake was convicted of tax fraud. Two months after his conviction, his attorney was thrown off the roster of attorneys allowed to practice in the 7th Circuit after “flagrantly disregard[ing]” the district court’s instructions in a civil case that “raise[d] serious concerns about his professional competence.”

Airrion filed a 28 USC § 2255 petition claiming that his lawyer’s disciplinary proceedings should negate any presumption that he was professionally competent in Airrion’s case. Last week, the 7th Circuit disagreed, reaffirming that ineffective assistance claims require case-specific analysis.

The court found that while Airrion’s lawyer misunderstood Brady obligations, Airrion failed to show how that prejudiced his case. Airrion admitted on the stand that his tax return was false, and ample evidence supported his conviction. Thus, there was no reasonable probability that correcting counsel’s errors would have changed the outcome.

Blake v. United States, Case No. 23-2399, 2025 U.S.App. LEXIS 32146 (7th Cir. Dec. 9, 2025)

No Need To Double Count: Jefferson Washington was convicted of a drug offense in 2020. His sentencing range would have been 24-30 months, but he was held to be a Guidelines career offender, making his sentencing range 151-188 months.

A few years later, the 4th Circuit held that Jeff’s predicate offenses did not qualify for career offender status. Jeff filed for compassionate release under 18 USC § 3582(c)(1)(A), arguing that the gross sentence disparity between what he got in 2020 and what he would get today was an extraordinary and compelling reason for a reduction, and that the same disparity should be considered when the court weighed the 18 USC § 3553(a) sentencing factors.

The district court denied relief.

It agreed that Jeff had demonstrated that he had an extraordinary and compelling reason for a sentence reduction based on the “enormous disparity” between the career offender Guidelines range at sentencing and what it would be if his career offender status were eliminated. Despite that determination, the court ruled that compassionate release was not justified under the § 3553(a) sentencing factors because of Jeff’s “significant criminal history” – dating back some thirty years and including a collection of non-violent and violent offenses showed “disrespect for the law.” The court held that Jeff’s commendable rehabilitative efforts weren’t enough to convince it that he posed ‘a reduced danger to himself or his community.” Jeff argued that his time served was more than the top end of his guidelines if he had been sentenced today, but the court didn’t discuss that argument in its decision denying Jeff’s compassionate release motion.

“We… reject Washington’s argument that the court abused its discretion by failing to explicitly address the sentencing Guidelines range disparity… as part of its § 3553(a) discussion,” the 4th Circuit held. “[D]istrict courts are not required to restate views expressed in its “extraordinary and compelling” analysis in its § 3553(a) analysis. And… on appellate review… we consider the totality of [the court’s] statements rather than view them in isolation.”

The 4th ruled that the “district court’s reasoning demonstrates that it was fully aware of the extent of the sentencing disparity at issue here and that it factored in Washington’s favor… [N]othing required the district court to… readdress this same point when considering the other statutory factors relevant to its decision whether to grant relief… [B]ecause the record demonstrates that the district court understood and explicitly engaged with Washington’s Guidelines range disparity as part of its decision to deny relief, it was not required to repeat the same information twice.”

United States v. Washington, Case No. 23-7036, 2025 U.S.App. LEXIS 32550 (4th Cir. Dec. 12, 2025)

Hurts so Bad: If there is any recurring theme in Bureau of Prisons prisoner care, it’s the BOP’s consistent failure to give any credence to inmate health complaints, too often until it’s much too late to prevent permanent injury or death.

Troy Williams filed a compassionate release motion claiming that the Bureau of Prisons had failed to adequately treat his medical condition by not testing his blood enough to ensure the medicine was working and that lockdowns were preventing treatment.

The district court found that the BOP medical treatment may have been inadequate, but it wasn’t that inadequate. Just sort of inadequate, and not inadequate enough to warrant intervention. Last week, the 6th Circuit agreed.

The Circuit said that while the BOP provided a declaration from its Health Services clinical director, Troy provided no “expert medical testimony” to connect sporadic and inadequate blood testing with any harm to his health. The evidence showed that even during a period with less than the recommended monthly testing, his numbers remained within an acceptable range and his doctors did not adjust his drug dosage.“ Given the overall record, the 4th said, the district court did not clearly err in finding that the frequency of Williams’s blood testing did not present a “risk of serious deterioration” to his health.

Troy also argued that lockdowns were preventing the facility from adequately treating him, but his medical records showed only one blood test was missed. He cited a third-party investigation of the prison that reported that frequent lockdowns interfered with medical care. As the government points out, however, there is only one documented instance in Williams’s voluminous medical records of a lockdown interfering with his blood testing. The BOP’s declaration and medical records got more credit than the third-party report, a decision that the appellate court held was not clearly erroneous.

The suggestion that compassionate release movants may need their own expert witnesses to counter the BOP’s self-serving medical declarations is troubling, raising a financial bar to relief that not many people can afford to overcome.

United States v. Williams, Case No. 25-3241, 2025 U.S.App. LEXIS 32556 (6th Cir. Dec. 12, 2025)

~ Thomas  L. Root

Low Sentence Undoes § 2255 Prejudice – Update for December 9, 2025

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LAWYER’S ERROR ON GUIDELINES NOT ALWAYS PREJUDICIAL, 11TH SAYS

In 2016, Cecil Buckner pled guilty to several Hobbs Act violations and 18 USC § 924(c) counts. The presentence report classified him as a Guidelines career offender because Cecil had two prior felony convictions for a controlled substance offense. The combined statutory minimum sentence for his § 924(c) convictions was 384 months. The PSR calculated a career-offender range of 535 to 572 months’ imprisonment. Without the career-offender classification, Cecil’s guideline range would have been 504 to 534 months.

At Cecil’s sentencing, no one objected to the PSR. The district court adopted it as its findings of fact and imposed a 414-month prison sentence, reducing it by 121 months because the § 924(c) mandatory sentence was so long that it amounted to an essentially life sentence.

Later, in a 28 USC § 2255 petition, Cecil argued that the PSR was wrong in classifying him as a career offender and that his lawyer had been ineffective for failing to object to the error. Without the mistake, Cecil says, the bottom of his Guidelines range would have been 31 months lower.

It has always been generally accepted that an incorrect Guidelines calculation is enough to show § 2255 prejudice, that is, a reasonable probability of a different outcome. But last week, the 11th Circuit said this presumption is not carved in stone.

The Circuit held that the application of an erroneous Guideline range may not be dispositive on the prejudice prong when the district court gives “a detailed explanation… mak[ing] it clear that the judge based the sentence… on factors independent of the Guidelines.” Here, the district court sentenced Cecil based on factors independent of his career-offender classification, imposing a sentence of 414 months of imprisonment, only 30 months more than the mandatory 384 months for the two § 924(c)s.

Because the district court arrived at Cecil’s sentence by balancing his life expectancy with the “terror” and “fear” that he inflicted upon his victims, the 11th held, Cecil had “not established a reasonable probability that his sentence would have been different if counsel had objected to his career-offender classification.”

Buckner v. United States, Case No. 24-10001, 2025 U.S.App. LEXIS 31479 (11th Cir., December 3, 2025)

~ Thomas L. Root

You Should Have Told Me That… Update for October 24, 2025

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IT WASN’T BRAIN SURGERY…

Nita Patel operated companies offering mobile diagnostic test services at a physician’s office. To pay for the services, Medicare required a licensed physician on staff to sign off on the tests.

When applying to Medicare for approval to do one kind of neurologic diagnostic testing, Nita’s husband falsely represented that a licensed neurologist would supervise the tests. Based on the representation, Medicare approved the companies as providers of the specialized test. The companies started testing with one of the owners – who was not a licensed doctor – forging a physician’s signature on the tests.

The companies made over $4 million from the scheme.

People who pull such scams shouldn’t. If they do, they should keep their employees happy. A disgruntled Patel worker lodged a qui tam claim against the companies (a civil action in which, if the government wins a judgment, the person bringing the action gets a monetary reward).

The government looked at the claim and smelled a rat. It then indicted the Patels. A day after the husband and wife pled guilty in 2016, the Government took over the qui tam action from the employee, asserting a False Claims Act cause of action. 

There’s a problem with guilty pleas beyond the obvious prison, fines, forfeitures and reputational harm. Such a plea can be used against the defendant in a civil action. The Patels’ guilty pleas pretty much made their liability in the qui tam action ‘game, set and match.’

Nita filed a 28 USC § 2255 motion, claiming her lawyer rendered ineffective assistance because he never told her that her guilty plea could be used against her in a False Claims Act lawsuit. Comparing her case to Padilla v. Kentucky –  a 2009 Supreme Court decision holding that defense attorneys have a duty to advise their defendant-clients of the immigration consequences of a guilty plea – Nita argued that counsel had a duty to advise her of all collateral consequences of pleading guilty, including the risk of civil liability.

C’mon, people. The notion that if you rip off the government, you might be forced to pay the government back is not such a hard idea to wrap your head around. Likewise, if you swear under oath that you committed a crime in doing so – necessary if you’re pleading guilty – you shouldn’t be shocked if another court relies on that admission.

Last week, the 3rd Circuit ruled against her.

The 3rd held that even though Nita had finished her prison sentence and supervised release term, she still met § 2255’s “in custody” requirement for bringing a motion because she faced substantial collateral civil consequences from her conviction.

That hardly mattered, however, because the Circuit held that Padilla does not address whether the “distinction between direct and collateral consequences [should] define the scope of constitutionally ‘reasonable professional assistance’ required under Strickland.” Rather, deportation stands alone among non-criminal consequences requiring proper attorney advice as a matter of the 6th Amendment.

It probably would have been a good idea for defense counsel to talk about civil liability flowing from admitting criminal guilt to a $4 million scam.  But counsel’s failure to do so was not ineffective assistance under the 6thAmendment.

Patel v. United States, Case No. 23-2418, 2025 U.S. App. LEXIS 27085 (3d Cir. October 17, 2025)

~ Thomas L. Root

Lawyers Can Be Wrong But Still Be Good, 7th Says – Update for October 2, 2025

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WRONG DOESN’T MEAN INEFFECTIVE, 7TH CIRCUIT SAYS

Otis Elion pleaded guilty to distributing meth in 2017. The district court held that he qualified as a Guidelines Chapter 4B “career offender.” Otis’s attorney did not object, because after researching whether his prior convictions qualified as predicate offenses for career offender, she concluded that challenging that sentencing enhancement would fail.

In his 28 USC § 2255 petition, Otis argued his lawyer provided ineffective assistance under Strickland v. Washington by not challenging his “career offender” status. The district court agreed that he was prejudiced because he really didn’t qualify as a “career offender,” but that his lawyer – although wrong – was not ineffective.

With several prior drug convictions, Otis may have been a “career offender” under USSG § 4B1.1(a). The drug convictions might have been considered to be “controlled substance offenses, “defined as federal or state offenses that “prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance (or a counterfeit substance)” or possession with intent to engage in those actions, punishable by imprisonment for a term exceeding one year.”

One of Otis’s priors was a 2006 federal conviction for distribution of crack cocaine. Before that was a 2000 conviction for delivery of a look-alike substance. The oldest was a 1999 conviction for delivery of a look-alike substance within 1,000 feet of public housing property. The Presentence Report concluded that those convictions qualified Otis for career offender.

His attorney reached the same conclusion, so she did not object to the application of the enhancement at Otis’s sentencing. Instead, she argued Otis ‘s health and life circumstances justified a mitigated sentence. The district court sentenced Otis as a “career offender” to 167 months.

To Otis, neither his 1999 nor his 2000 state convictions was controlled substance offense because look-alike substances made the Illinois statute broader than the Guidelines, and his lawyer’s failure to make that argument violated his 6thAmendment right to effective assistance of counsel. Using the modified categorical approach, the court agreed the Illinois use of “look-alike” substance made it different from the Guideline’s use of counterfeit substance.

Otis’s attorney had wrongly concluded that “counterfeit” and “look-alike” were a categorical match. But the 7th Circuit said last week that a defense attorney does not need to forecast changes in the law. “Failure to object to an issue that is not settled law within the circuit is not unreasonable by defense counsel… A defense attorney’s choice not to make a potentially meritorious argument is not automatically deficient performance, even if it stems solely from a legal error.” 

Strickland holds that the “proper measure of attorney performance remains simply reasonableness under prevailing professional norms,” the 7th said. Strickland necessarily permits mistakes that are reasonable. Only when the defense attorney’s error is so appalling that he can no longer be considered “counsel” for his client is his performance deemed deficient… The giving of legal advice that later is proven to be incorrect, therefore, does not necessarily fall below the objective standard of reasonableness.

If an attorney declines to make an argument that no court has accepted and no other attorney has made, yet which later succeeds, it is doubtful the attorney’s omission was unreasonable under prevailing norms of practice. Otis’s lawyer did the necessary work, the 7th observed. “She researched the categorical approach arguments, found the applicable caselaw, and analogized that precedent to Otis’s case. When the caselaw provided no answer, she used statutory interpretation and relied on her extensive experience. She just reached a different conclusion than the Circuit did —a  conclusion on which reasonable minds could disagree.”

Elion v. United States, Case No. 24-3014, 2025 U.S. App. LEXIS 24770 (7th Cir. September 24, 2025)

~ Thomas L. Root

Failure to Anticipate Is Not Ineffective Assistance – Update for September 12, 2025

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Should Have Seen That Coming

Tyree Neal pled guilty to conspiracy to distribute cocaine in violation of 21 USC §§ 841(a)(1), (b)(1)(C), and 846. At his sentencing, the district court found that Ty’s prior Illinois cocaine conviction supported a recidivism enhancement under § 841(b)(1)(C) that raised his maximum sentence from 20 years to 30 years. The district court hammered him with 30 years.

Two years after Tyree lost his appeal, the 7th Circuit held in United States v. Ruth that under the “categorical approach,” because Illinois’s definition of cocaine is broader than the federal definition, an Illinois conviction for cocaine delivery could not support a recidivism enhancement under 21 USC § 841(b)(1)(C). This meant that if Ty were sentenced today, his maximum sentence would be 20 years.

Ty filed a 28 USC § 2255 habeas corpus motion arguing that his appellate, sentencing, and plea attorneys were all constitutionally deficient because they failed to anticipate the argument that ultimately won in Ruth. Ty claimed they should have seen it coming and raised it in his case.

The district court denied his § 2255 motion. Last week, the 7th Circuit agreed.

The Circuit said the proper inquiry is “an objective assessment of counsel’s performance considering the options available to the defense.” Considering his appellate attorney, the 7th agreed that “looking back, it is fair to say the Ruth argument was stronger than those appellate counsel made (if that is not already apparent from the outcome of Ruth compared to Neal’s direct appeal). But we cannot conclude the Ruth argument was “clearly stronger” at the time of Neal’s appeal.

“A significant obstacle to comparison is that the arguments aimed at different goals. As an appellate lawyer must, counsel curtailed the number of issues by focusing on Neal’s conviction. If her arguments prevailed, Neal would have had a second opportunity for trial and acquittal. A successful Ruth challenge would have left Neal with a 20-year sentence. Those different ends do not affect the likelihood of success for their different means, but they would influence an attorney’s professional judgment about the “strongest” issues for appeal. Although we can imagine situations where an argument against a defendant’s sentence is strong enough that it must be raised even if in the alternative, appellate attorneys are not always required to pick issues with a higher likelihood of success but a lower reward.”

“Holding that appellate counsel provided ineffective assistance would thus encourage a kitchen-sink approach to advocacy,” the Circuit said, “the implicit logic being that she should have made the Ruth argument in addition to the issues she raised, not instead. Would an attorney still think we would find the Ruth argument persuasive if she knew it shared a limited page-count with Neal’s plea arguments? “As for sentencing counsel, the 7th said, he did what Ty asked him to, attackng the enhancements for use of violence, obstruction of justice, and reckless endangerment. After Neal provided “the names of a number of witnesses that he wanted counsel to interview,” counsel retained an investigator to interview those witnesses, subsequently spoke with several, and subpoenaed them to appear at Ty’s sentencing. Counsel also negotiated a plea deal that, if the court had followed it, would have given Ty the same 20-year sentence that a Ruth issue would have given him.

The Circuit said,

After Ruth, we can comment that sentencing counsel’s attempts to lower Neal’s offense level and convince the district court to exercise its discretion leniently were not the best possible approach to reducing Neal’s exposure. But it is difficult to establish ineffective assistance when counsel’s overall performance indicates active and capable advocacy.

Neal v. United States, Case No. 23-1722, 2025 USApp LEXIS 23018 (7th Cir. Sept 5, 2025)

United States v. Ruth, 966 F.3d 642 (7th Cir. 2020)

~ Thomas L. Root

Second Guessing from the Peanut Gallery – Update for August 18, 2025

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Summer is ending with back-to-school, football, and cooler days upon us. In commemoration of a short summer, I am condensing a surprising amount of news from last week into ‘shorts’.

CASE ‘SHORTS’

‘Structural Errors’ Are Not a ‘Pass,’ 11th Says: The Parnell brothers ran a big peanut factory that accidentally killed 90 people or so nationwide with dangerous bacteria in the company’s products. When an investigation showed they had been falsifying certifications that their products were pure, they were indicted for fraud.

The brothers hired a team of experienced defense attorneys for the well-publicized trial but got convicted anyway. After losing appeals, they filed 28 USC § 2255 motions claiming their lawyers were ineffective.

Back in 2010, the Supreme Court held in Skilling v. United States that in some cases, prejudice to a defendant can be presumed if he is denied a change of venue because of pretrial publicity. Such a denial is a structural error, one that affects the framework within which the trial proceeds, rather than being simply an error in the trial process itself. Because a structural error “defies analysis by harmless error standards,” the Supreme Court has held, when such an error occurs, prejudice to the defendant is presumed.

The Parnells’ lawyers considered asking for a change of venue because of publicity but rejected it after investigation, because they concluded that a trial in the Albany, Georgia, area – where people understood peanut production and processing – could be better for defendants hoping to sell their argument that they were over-regulated and being scapegoated. In their § 2255 motions, the brothers this decision was deficient representation and – because the Skilling error was structural – they didn’t have to show that their lawyers’ blunder had prejudiced them. Instead, that could be presumed.

Last week, the 11th ruled that just because the underlying error might be structural did not mean that the Parnells’ claim that their lawyers had screwed up by not asking for a Skilling change-of-venue didn’t have to show prejudice. What was more, their Parnells’ lawyers – who brought about 150 years of trial experience to the table – had investigated whether to seek a change of venue and decided that the slim chance the Parnells could meet the Skilling standard and the possible benefits of a local jury where at least one juror understood how tough a business peanut processing could be, argued against seeking a change of venue.

“This case involves a challenge to a carefully conceived and thoroughly thought-out strategic decision made by two teams of experienced counsel after a full investigation,” the Circuit ruled. “It is not one of those rare, few and far between cases in which we will second-guess their strategic decision and find that they performed outside the wide range of reasonable professional assistance. They did not.”

Parnell v. United States, Case No. 22-13907, 2025 U.S.App. LEXIS 20328 (11th Cir. Aug 11, 2025)

Skilling v. United States, 561 U.S. 358 (2010)

Federal Territorial Jurisdiction Question Not Easily Answered: Federal prisoner  Jesse Perez committed a crime while locked up at FCI Petersburg. After being convicted at trial, he argued that the government had not proven to the jury that the crime was committed within the “special maritime or territorial jurisdiction” of the federal government, and – without that showing – the crime was not prosecutable in a federal court.

Last week, the Court ruled that the issue of “special maritime or territorial jurisdiction” has two parts. The jury must find as fact where the crime occurred, in this case at FCI Petersburg. Whether FCI Petersburg is within the special maritime or territorial jurisdiction of the federal government is a purely legal question that the judge, not the jury, decides.

In this case, however, the district court goofed. Under 18 USC § 7(3), a three-part test for special territorial jurisdiction requires (1) federal acquisition of the property; (2) state consent to federal (or cession of its own) jurisdiction; and (3) federal acceptance of jurisdiction. The district court failed to evaluate each element, instead just taking judicial notice that the prison was part of the special territorial jurisdiction of the United States because the government has “practical usage and dominion” over FCI Petersburg.

That’s not enough, the 4th Circuit said, sending the case back for the district court to apply the right test.

United States v. Perez, Case No. 24-4039, 2025 U.S. App. LEXIS 20396 (4th Cir. Aug. 12, 2025)

~ 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