Tag Archives: 2255

A Compassionate Release Math Lesson – Update for June 15, 2023

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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.

3582 ≠ 2255, 6TH CIRCUIT SAYS

Most of the time, unsavory houseguests nick a towel from the bathroom or a spoon from the silver. Not Lennie Day. While staying at Roy West’s Akron, Ohio, house (the decision says he was “hiding out”), Lennie stole $300,000 in cash and jewelry, a .40-caliber gun, and car keys.

houseguest230615If this had been an Airbnb rental, Lennie would have gotten a flaming’ bad review.

Roy, appalled at Lennie’s poor manners, felt that he should confront his erstwhile guest and upbraid him for his rudeness. So Roy organized a posse of friends, led them to Detroit, and asked them to locate Lennie
so that he could express his unhappiness directly to Lennie. He didn’t find him, but later, Lennie passed away after being perforated by several bullets. Sadly, Roy never got to tell Lennie what a faux pas his guest had committed…

In 2014, Roy was convicted for his participation in what the government labeled a murder-for-hire conspiracy targeting Lennie. He was sentenced to life in prison. His direct appeal and a post-conviction motion under 28 USC § 2255 failed.

Eight years later, Roy sought compassionate release under 18 USC § 3582(c)(1)(A). He argued that extraordinary and compelling reasons for the reduction included his risk of catching COVID, his rehabilitation, and – raising it for the first time – that his sentence violated Apprendi v New Jersey, a 2000 Supreme Court decision holding that any statutory sentencing enhancement had to be supported by a jury finding the facts supporting the enhancement beyond a reasonable doubt.

Roy claimed that the jury instructions given at his trial did not require the jury to find that death resulted from the conspiracy – a necessary finding for the court to impose a life sentence for the crime.

The district court didn’t bite on the medical risk for COVID, but it did find that the Apprendi error and Roy’s rehabilitation constituted “extraordinary and compelling reasons” to reduce his sentence. It reduced Roy’s sentence to 17 years and cut him loose.

Last week, the 6th Circuit reversed, agreeing with the government that Roy’s § 3582 motion was really a second or successive § 2255 motion in mufti.

mufti230615The Circuit assumed the district court was right that “a harmful Apprendi violation occurred.” That doesn’t matter, the Circuit said, because “compassionate release cannot ‘provide an end run around habeas.’ The § 2255 procedure “provides a specific, comprehensive statutory scheme for post-conviction relief” and therefore, the 6th ruled, “any attempt to attack a prisoner’s sentence or conviction must abide by its procedural strictures.”

Once a prisoner has already filed and appealed the denial of a § 2255 motion (as Roy had already done), “relief cannot be obtained in a successive § 2255 motion unless new evidence or a new rule of constitutional law is announced,” the Circuit held. Roy “cannot avoid these restrictions on post-conviction relief by resorting to a request for compassionate release instead.”

Of course, because Apprendi predated Roy’s conviction and – for whatever reason – the error was not raised in his self-written § 2255, there is no way he will be allowed a second § 2255. Roy will just have to do his sentence. For the rest of his natural life.

United States v. West, Case No. 22-2037, 2023 U.S. App. LEXIS 14424 (6th Cir. June 9, 2023)

– Thomas L. Root

Explainer: When Federal Prisoners Can Get Relief Under Range, Dubin – Update for June 12, 2023

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ASK THE PROFESSOR

explainer230612Last week, I reported on the 3rd Circuit’s en banc ruling that someone convicted of a nonviolent “crime punishable by imprisonment for a term exceeding one year” (18 USC § 922(g)(1)) could not constitutionally be prohibited from possessing a gun or ammo. That report was followed by a dispatch on the Supreme Court’s decision last Thursday that dramatically limited the reach of the aggravated identity theft statute (18 USC § 1028A).

This was followed by the predictable questions from prisoners: “When can I use the Range decision to get my § 922(g) conviction vacated? And how about getting rid of my aggravated identity theft conviction under § 1028A?”

Very good questions, and inquiries for which the hopemongers who will write any motion for a federal prisoner in exchange for a modest fee – let’s call them what they are, hopemongers – have a ready answer. That answer usually starts with, “Pay me…”

Now let’s ask the professor.  Or, because he’s nowhere around, ask me…

professor230612To be sure, a lot of people could be affected by the decisions, provided there’s a procedural route to raise them. About 21% of federal prisoners have a § 922(g) conviction, while about 2% are doing time for aggravated ID theft. That’s a potential of about 35,000 felon-in-possession and 3,500 § 1028A defendants.

Range: Remember first that the Range decision is only binding in the 3rd Circuit. If your case isn’t from there, Range doesn’t help you. In fact, as I reported a week ago, the 8th Circuit just went the other way in its United States v. Jackson decision.

However, if your 1-year deadline for filing a § 2255 motion hasn’t expired, by all means challenge § 922(g) constitutionality in your motion. But if your time has expired, your options are limited. Under 28 USC § 2255(f)(3), you can file within a year of a new SCOTUS ruling on the constitutionality of a statute, but Range is not a Supreme Court case. If you have already lost your § 2255 motion, you have to get Court of Appeals permission to file another § 2255 and that standard likewise requires that the motivating decision be from the Supreme Court.

So how about a 28 USC § 2241 petition? We’ll know a lot more about § 2241s in a few weeks when SCOTUS decides Jones v Hendrix. For now, fitting a Range-type claim into the standards for bringing a § 2241 (under the § 2255(e) saving clause) will be tough.

dice161221For § 922(g) defendants, it may be worth a shot if your conviction came from a 3rd Circuit district court. For everyone else, it’s a waiting game…

ID Theft: For those beyond the § 2255 filing deadline, the traditional 28 USC § 2241 petition for habeas corpus will likely be available under the saving clause.

Because Dubin is a statutory interpretation and not a constitutional holding (despite Justice Gorsuch’s argument that it could easily have been), the route of filing a second or successive § 2255 (under the rules set up by § 2255(h)) is probably unavailable.

General Pro Tip: If you’re proceeding on § 2255 or § 2241, find competent help. Procedural questions are boring but vitally important to winning.

Ohio State University law prof Doug Berman observed last week that “offenders now looking to pursue what might be called “Dubin claims” could, of course, face procedural barriers of all sorts. But the still-open-ended sentence reduction authority of 3582 might be one ready means for at least some (over-sentenced) prisoners to secure relief…”

USSC, Quick Facts – Felon in Possession (June 2022)

USSC, Quick Facts – Sec 1028A Aggravated Identity Theft Offenses (July 2022)

Sentencing Law and Policy, How many of the many thousands convicted of federal aggravated identity theft might now have Dubin claims? (June 8, 2023)

– Thomas L. Root

Man Bites Dog; 2255 Movants Win A Few – Update for February 23, 2023

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PAIR OF 2255 WAIVER RULINGS VALUE SUBSTANCE MORE THAN PROCEDURE

Two appellate decisions last week – from the 4th and 10th Circuits – reminded even the most jaded critics of criminal justice that sometimes fairness can triumph.

robbbq230223In the 4th Circuit, Donzell McKinney and friends robbed a barbeque joint with a gun back in 2011. He pled guilty to Hobbs Act conspiracy and using a gun in a crime of violence under 18 USC 924(c). In the plea agreement, the government dropped the Hobbs Act robbery count. After the 2015 Johnson v United States ruling, Donzell filed a § 2255 motion arguing that the 924(c) count should be vacated.

After over five years of being held in abeyance, Donzell’s district court agreed that he was innocent of the § 924(c) because of the Supreme Court’s 2019 United States v. Davis ruling that conspiracy to commit a violent crime was not itself violent and thus could not support a § 924(c) conviction. But that didn’t help Donzell, the district court ruled, for a bunch of reasons including that his plea agreement waived his right to bring the § 2255, Donzell procedurally defaulted the claim, and anyway, if Donzell had been able to raise the issue back in 2011, the government would not have dismissed the Hobbs Act robbery count but instead would have hitched the § 924(c) charge to that count instead of the conspiracy.

Last week, the 4th Circuit reversed it all, ruling that enforcement of Donzell’s appeal waiver to bar his claim would result in a miscarriage of justice and that he had shown both cause and prejudice for his procedural default.

An appellate court can refuse to enforce an appeal waiver when a sentence is imposed in excess of the statutory maximum or is based on a constitutionally impermissible factor. Among these is the most fundamental reason, where enforcing an appeal waiver would result in a miscarriage of justice. Donzell’s § 924(c) conviction and punishment are for an act that the law does not make criminal. “There can be no room for doubt,” the 4th said, “that such a circumstance inherently results in a complete miscarriage of justice and presents exceptional circumstances that justify collateral relief under 28 USC § 2255.”

Robber160229But, the government protested, Donzell really was guilty of the robbery, and would have pled to it if the government hadn’t agreed to drop it. So he wasn’t prejudiced by the Davis error.

That’s not how it works, the Circuit replied. “Where the record in a case shows that a count of conviction is now invalid, no precedent authorizes a court to then rely on a dismissed count to negate that demonstrated prejudice. Rather, in determining prejudice for purposes of excusing procedural default, the court asks whether it is likely a defendant, had he known of the error, would not have pled guilty to the count of conviction. The court does not look to whether it is likely a defendant, had he known of the error, would not have pled guilty to a dismissed count.”

Fraud170406Meanwhile, in the 10th Circuit, Joe Chatwin pled guilty to bank fraud and a § 924(c), an unusual combination to be sure. Joe’s offenses were pretty prosaic, identity theft, turning a $30 cashier’s check into a $30,000 check that he used to buy an RV from a guy, but he apparently pulled a gun when the Marshals came to arrest him. The 18 USC § 111 assaulting a fed charge was dismissed, but it underlay the § 924(c) conviction.

After Johnson, Joe filed a bare-bones § 2255 that said simply, “police chase not a violent crime.” He later amended after Davis to argue that the district court had relied solely on the § 924(c) residual clause (which Davis held was unconstitutionally vague). The government never argued Joe’s merits, instead moving to dismiss the § 2255 motion because Joe had “knowingly and voluntarily waived his § 2255 rights in a Rule 11(c)(1)(C) plea agreement.”

Lose200615The district court agreed with the government, holding that enforcing the waiver would not be a miscarriage of justice because Joe’s Davis claim was a dead-bang loser. Joe’s appealed, raising for the first time the argument that his collateral-attack waiver must fail because his conviction-based § 2255 motion fell outside the scope of his plea agreement collateral-attack waiver. He argued that his waiver barred any collateral attacks to his sentence but not to his convictions.

The 10th applied “plain error” review to the issue Joe hadn’t argued in the district court, but it agreed Joe was right that the waiver applied only to challenging the sentence, not the conviction. The government argued the error did not affect Joe’s “substantial rights,” that is, it did not change the outcome of the proceeding because Joe would have lost his § 2255 motion anyway.

Plain error in real life...
Plain error in real life…

But because the district court only addressed the motion to dismiss, not the merits of the § 2255 claim, the Circuit held that “the ‘outcome of the proceeding’ here means the outcome of the motion to dismiss—not matters beyond that.” The 10th ruled that Joe “has shown substantial prejudice based on the dismissal of his § 2255 motion. He has shown that the outcome of ‘the proceeding’ would have been different in that the district court could not have dismissed on the issue of the collateral-attack waiver’s scope. Absent plainly erring on the waiver’s scope, the district court could not have dismissed on that ground.”

United States v. McKinney, Case No. 20-6396, 2023 U.S. App. LEXIS 3715 (4th Cir. Feb. 16, 2023)

United States v. Chatwin, Case No. 21-4003, 2023 U.S. App. LEXIS 3889 (10th Cir. Feb. 17, 2023)

– 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

Stranger in a Strange Land – Update for October 13, 2022

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3RD CIRCUIT HOLDS THAT COLORABLE 2255 CLAIMS DEMAND A HEARING

burr221013Venue isn’t a very big deal in federal civil cases. But venue in a criminal trial – the right to be tried “in the state and district wherein the crime shall have been committed” – is a 6th Amendment requirement so basic that it has its own jargon: vicinage.

And that makes sense. Just ask Aaron Burr. He got hauled all the way from Louisiana to stand trial in Richmond, Virginia, far from where the offense occurred and witnesses were located.  

Even now, criminal venue can get short shrift.  I once had a Philadelphia lawyer – who had just left the U.S. Attorney’s office – tell me over coffee that lack of venue in an indictment was no big deal because the issue was easily waived and hardly mattered anyway.  

He was wrong.

Dave and Judy Haisten ran a diversified business, selling misbranded pesticides and animal drugs, as well as a variety of counterfeit goods (which included DVDs). They sold some of the pesticides in the Eastern District of Pennsylvania. The DVDs, however, were seized by customs officials in Cincinnati en route to the Haistens’ South Carolina home.

Dave and Judy were convicted in the Eastern District of Pennsylvania on 14 charges, including two counts of trafficking in counterfeit DVDs. They each got 12 months’ concurrent imprisonment on the first twelve counts (relating to pesticides and animal drugs). However, Dave got 78 months on the two DVD counts, concurrent with the other 12 counts (for a total sentence of 78 months). Judy got 60 months on her DVD counts, all running concurrently.

The Haistens believed that where the DVDs were concerned, they were strangers to the Eastern District of Pennsylvania.  They argued that venue for the DVD counts only existed in Ohio – where the shipment was intercepted – or South Carolina, where they kept their stash of counterfeit DVDs. But their trial attorney did not request a jury instruction on improper venue or move for acquittal on the DVD counts for lack of proper venue in the Eastern District of Pennsylvania.

bartsimpson221013The Haistens ultimately filed a joint § 2255 motion, arguing that their lawyer had been ineffective for failing to challenge venue on the DVD counts. The U.S. Attorney’s opposition to their § 2255 motion followed the typical government script: (1) the lawyer did not screw up; (2) the lawyer’s screw-up was done for strategic reasons; and (3) the lawyer’s screw-up did not prejudice the defendants.

The District Court denied Dave and Judy’s § 2255 motion, holding that any venue argument by their lawyer would have been futile because the government had proved venue for the DVD counts, based on a spreadsheet offered by the government that showed the Haistens had sent five DVDs to customers in the Eastern District of Pennsylvania. Neither the government nor the district court obtained a declaration from the Haistens’ lawyer as to why he did not argue venue.

Last week, the 3rd Circuit reversed the denial, and sent the case back to the district court for an evidentiary hearing. In so doing, the Court of Appeals provided a refreshing reminder that the standard for entitlement to an evidentiary hearing is to be kept low. 

On appeal, the government finally admitted that there was no venue for the DVD counts, because the seized DVDs at issue in those counts were not actually involved in sales to Eastern District of Pennsylvania customers. It argued nevertheless that their lawyer had a strategic reason for not raising venue, and anyway, Dave and Judy could not prove that their sentences would have changed.

The Circuit admitted that an attorney’s performance is not deficient if it is the product of a strategic litigation choice. But, it noted, “a district court must hold a hearing unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief… If a claim, when taken as true and evaluated in light of the existing record, states a colorable claim for relief… then further factual development in the form of a hearing is required.”

strategy221013The 3rd ruled that “colorable legal merit is distinct from actual merit. The threshold for a habeas petitioner’s claim to be colorable is low. The bottom line is, given the lack of evidence in the record about trial counsel’s strategic reasons for failing to object to improper venue on [the DVD counts], it is inconclusive whether the Haistens’ trial counsel performed deficiently. And while we take no definitive position on the merits of the Haistens’ arguments on the prejudice prong, their theory that they are prejudiced by having additional, improperly imposed felony convictions on their record is not so conclusively meritless as to have justified denying them a hearing.”

United States v. Haisten, Case No 21-1421, 2022 U.S.App.LEXIS 27771 (3d Cir., Oct. 5, 2022)

– Thomas L. Root

Supreme Court’s Final Days Include Criminal Decisions – Update for June 20, 2022

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BIG CRIMINAL DECISIONS STILL PENDING WITH ONLY TWO WEEKS OF SCOTUS TERM LEFT

The Supreme Court held two opinion days last week, but the most-watched criminal cases – United States v. Taylor, Concepcion v. United States and Ruan v. United States – remain among the 18 opinions yet to be issued before the Court’s term ends on June 30.

scotus161130Most people expect the two “big” cases, New York State Rifle & Pistol Assn v. Bruen (a 2nd Amendment case) and Dobbs v. Jackson Women’s Health Organization (the possibly-leaked abortion decision) to happen on the last day. But Taylor, which concerns whether an attempted offense that would be a “crime of violence” for application of 18 U.S.C. § 924(c) – the mandatory consecutive sentence for using a gun – is a “crime of violence” if it is only attempted but not completed – has been hanging around for six months since its December argument. Concepcion, which concerns proper resentencing considerations in First Step Section 404(b) resentencing, and Ruan, which considers physician liability under 21 USC 841(a), was argued in the Court’s February sitting.

Ohio State University law professor Doug Berman wrote last week in his Sentencing Law and Policy blog that “the standard and ready explanation, of course, for why decisions in Taylor and Conception may be taking a long time is because the Justices are (perhaps deeply?) divided in these cases, and so we should expect multiple (and lengthy?) opinions. And, to add a bit of spicy speculation, I am inclined to guess that the delay is also partially a function of the Justices in these cases not being divided neatly along the “standard” ideological lines.”

rules201202The only case of interest to defendants last week was Kemp v. United States. In that case, petitioner Dexter Kemp filed a 28 USC 2255 motion in 2015. The District Court dismissed the motion as untimely, and Dix did not appeal. But three years later, he sought to reopen his 2255 under Federal Rule of Civil Procedure 60(b)(1) and (6), rules which permit a court to reopen an otherwise final judgment if certain conditions are met. A 60(b)(1) motion has to allege that a mistake was made, and must be filed within a year, Relief under Rule 60(b)(6) for any other just reason can be filed at any time, but is available only when the other grounds for relief specified in the Rule don’t apply.

Dex was right that the District Court had goofed on dismissing his § 2255 motion as untimely. In a just world, his § 2255 should be reopened, and that would be that. But in the real world, it’s not that easy.

The Supreme Court held that a judge’s error of law is a “mistake” within the meaning of Rule 60(b)(1), meaning that Dex’s motion fit under Rule 60(b)(1). Subject to the Rule’s one-year limitations period, Dex’s motion was late and had to be dismissed as untimely.

Sentencing Law and Policy, Any (spicy?) speculations about why SCOTUS has not yet decided Taylor or Conception, two little sentencing cases? (June 13, 2022)

Kemp v. United States, Case No. 21-5726, 2022 U.S. LEXIS 2835 (June 13, 2022)

– Thomas L. Root

Procedure Matters… Innocence? Not So Much – Update for March 24, 2022

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IN § 2255 CASES, PROCEDURE MATTERS

procedure220324Over the past three weeks, Russia has been reminded of the truth of General Omar Bradley’s old saw that “amateurs talk strategy, professionals talk logistics.” Likewise, two cases handed down last week underscore the truth that inmates talk substance, judges talk procedure.”

DeMarko Collins pled guilty to being a felon in possession under 18 USC § 922(g)(1). DeMarko’s presentence report determined he had two prior felony convictions for crimes of violence, including a Missouri 2nd-degree robbery, which enhanced his Guidelines advisory sentencing range under USSG § 2K1.1.

Five months before DeMarko’s sentencing hearing, a divided 8th Circuit panel held in United States v. Bell that Missouri 2nd-degree robbery was not a crime of violence, but DeMarko’s attorney goofed and did not cite the decision in opposing the § 2K2.1 enhancement. The district court granted the government’s motion for an upward variance, and sentenced DeMarko to 216 months.

DeMarko appealed his sentence. Relying on Bell, he argued the § 2K2.1 enhancement should not have applied. But while his appeal was pending, the 8th Circuit en banc overruled Bell and held that a Missouri 2nd-degree robbery is a violent felony after all. Because of that, Demarko lost his appeal.

stupidlawyr191202DeMarko then filed a § 2255 post-conviction motion, arguing that his lawyer should have cited Bell, which had been controlling authority and good law at the time of his sentencing. The district court denied the § 2255, finding that even if DeMarko was right that his lawyer should have raised Bell at sentencing, “he cannot demonstrate he was prejudiced by” the error.

Last week, the 8th Circuit agreed, holding that by the time DeMarko on “direct appeal cited Bell in challenging his § 2K2.1 enhancement based on a Missouri 2nd-degree robbery conviction, Bell had been overruled… and this prior conviction was once again a predicate crime of violence under the Guidelines. Strickland prejudice ‘focuses on the question whether counsel’s deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair…’ DeMarko was not deprived of a substantive or procedural right to which the law entitles him, so he ‘suffered no legally cognizable prejudice’.”

Meanwhile, in the 9th Circuit, Cesar Gonzalez filed a 28 USC § 2244 application for permission to file a second § 2255 motion. He wanted to argue that his 18 USC § 924(c) conviction for having a gun in furtherance of a crime of violence was invalid because his predicate crime – racketeering – was no longer a categorical crime of violenceunder a new rule of constitutional law announced in the Supreme Court’s United States v. Davis decision.

Last week, the 9th Circuit shot Cesar down, finding that his new Davis argument was not “previously unavailable” as required by 28 USC § 2255(h)(2).

When Davis was handed down, Cesar had filed his § 2255 motion, and the government had responded. Cesar, however, had not yet filed his reply. The 9th Circuit ruled that to show the argument was “previously unavailable” to him, he had to show “that the real-world circumstances that he faced prevented him, as a practical matter, from asserting his claim based on a new rule of law in his initial habeas proceeding.”

The Circuit said it “recognized that pro se prisoners face unique difficulties when litigating habeas relief or anything else, and that language barriers, as Cesar cited in his case, add to those difficulties.” However, the 9th ruled, “nothing in the text or context of AEDPA‘s previously-unavailable-claim requirement suggesting that this limited exception to the otherwise broad prohibition against filing second or successive habeas proceedings was intended to be applied subjectively.”

innocent210504The 9th concluded that Cesar could show that his new Davis argument was unavailable during his initial § 2255, where Davis issued shortly before Cesar filed his reply brief and a few months before the § 2255 was decided. Cesar had the facts that he needed for his claim, the Circuit held, and no systemic or external barrier prevented him from presenting his claim in his initial habeas proceeding.

So it did not matter that Cesar stood convicted of a § 924(c) offense unlawfully, because a hypothetical reasonable inmate would have tried to raise Davis in the nearly-completed § 2255 proceeding.

Substance? Who cares about substance when procedure triumphs?

Collins v. United States, Case No. 20-3662, 2022 U.S. App. LEXIS 6725 (8th Cir., March 16, 2022)

Gonzalez v. United States, Case No 20-71709, 2022 U.S. App. LEXIS 6943 (9th Cir., March 17, 2022)

– Thomas L. Root

Chewing on a Procedural Pretzel – Update for January 27, 2022

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NO PERMISSION NEEDED FOR AN APPEAL FOR WHICH PERMISSION NEEDED

“Huh?” you ask. No wonder.

This problem has happened to inmates before, especially during pandemic lockdowns. In 2015, Serwan Mizori filed a 28 USC § 2255 motion arguing that his lawyer had rendered ineffective representation. The motion languished for four years before his court got around to denying it.

pretzel2230127Once the court acted, Serwan had 60 days under the rules to file his notice of appeal (NOA). But as luck would have it, he was confined in the Special Housing Unit (“SHU”) for some prison rules violation right about then, and had no access to stamps or a law library. He got out of the SHU about two weeks after the NOA was due.

Serwan filed an NOA and a motion for leave to file it late under Federal Rule of Appellate Procedure 4(a)(5)(A)(ii). The district court turned him down, so Serwan appealed its denial of his right to file the NOA. To turn this into even more of a procedural pretzel, the 6th Circuit first took up the question of whether he needed a certificate of appealability (COA) to appeal denial of his motion to late file the NOA.

Section 2253(c)(1)(A) of Title 28 provides that unless a circuit justice or judge issues a COA, an appeal may not be taken from “the final order in a habeas corpus proceeding in which the detention complained of arises out of process” issued by a court. A COA is a ruling that the issue to be appealed is one that is subject to reasonable dispute, one that “jurists of reason” would find debatable.

Last week the Circuit ruled Serwan could argue his procedural motion without a COA. The Court said that for COA purposes, a “final order… disposes of the merits of a habeas corpus proceeding.”

rules201202Here, the district court’s two-page order denying Serwan’s motion under Rule 4(a)(5) “plainly did not dispose of the merits of his 2255 motion,” the Circuit said. “The district court’s July 2019 order denying the 2255 motion had already done that; and the order that Mizori seeks to appeal now said nothing about the merits of his underlying § 2255 motion.”

Thus, Serwan could proceed with appealing the denial of his late-filed notice of appeal without a COA. If he wins that, then he will require a COA.

No wonder lawyers make big bucks.

Mizori v. United States, Case No, 19-2433, 2022 U.S. App. LEXIS 1639 (6th Cir., Jan. 20, 2022)

– Thomas L. Root

Fecklessness Is No Legal Strategy, 1st Circuit Says – Update for November 15, 2021

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SOMETIMES THE DIFFERENT DRUM IS POUNDING OUT THE WRONG BEAT

diffdrummer211115Sandy Flores-Rivera was one of 46 people charged with a drug-trafficking conspiracy. At trial, most of the evidence against Sandy and her co-defendants came from three cooperating witnesses, all of whom fingered Sandy and helped the government present non-testimonial evidence.

After the jury returned guilty verdicts against Sandy and the other defendants, the government belatedly disclosed some pretrial documents created by a cooperating witness. One was a letter to the lead prosecutor, in which the witness described himself as the government’s “best cooperator: “I promised you to do everything you said and I have done it to the point that you know how this has gotten, we have more than we expected, more evidence and more strength for the case…” Another document consisted of notes that the cooperating witness kept of conversations he had with other cooperators while they were in prison together, in which he had encouraged them to testify. Finally, the government disclosed a note showing the FBI knew the cooperating witnesses were talking to each other in jail.

Of course, the government’s failure to disclose this evidence – which suggested the cooperating witnesses were singing a version of the “truth” they thought would be most pleasing to the authorities who controlled their fates – was a slam-dunk violation of the constitutional requirement of disclosure enshrined in Brady v. Maryland.

[Remember Brady? Brush up on it here]

Sandy and the other defendants moved for a new trial under Rule 33(b) of the Federal Rules of Criminal Procedure due to the Brady violation, but the district court turned them down. On appeal, the other defendants again raised the Brady violation, and this time someone listened: the 1st Circuit granted those other defendants new trials because the court found it was “reasonably probable that the impeachment evidence would have caused the jury to acquit” them.

lawyerjoke180807Sandy’s lawyer, however, marched to a different drummer: he didn’t bother raising the Brady issue in Sandy’s appellate brief, but rather argued a couple of loser claims that hadn’t even been preserved in the lower court record. Those issues ran into what the 1st Circuit called “a stone wall of controlling precedent.” In fact, the Circuit even pointed out in amazement that Sandy’s counsel had joined in the new trial motion at the district court but inexplicably “did not renew the argument despite his clear awareness of his ability to adopt a co-appellant’s arguments in a consolidated case… since he reserved his right to do so in Sandy’s opening brief.”

After losing her appeal while her co-defendants won theirs, Sandy filed a post-conviction motion under 28 USC § 2255 claiming her attorney rendered ineffective assistance on appeal. Last week, the 1st Circuit agreed.

The Circuit said the government’s case against Sandy “depended quite heavily on the largely uncorroborated testimony of the three cooperators. Hence, she would have prevailed on the Brady issue just like her co-defendants had she raised the issue. And for that reason, she establishes prejudice under Strickland.”

Appellate counsel performs deficiently, the Circuit said, when he or she “ignor[es] issues that are clearly stronger than those presented.” Forgoing an argument is not a reasonable strategic decision when there is no downside to objecting to an error or when the omitted argument would not “detract from” but would rather “build upon” another challenge.

feckless211115“Here,” the 1st ruled, “any reasonable attorney handling Flores-Rivera’s appeal would have known of the Brady claim’s availability even after a cursory review of the district court docket and the arguments offered by Flores-Rivera’s co-defendants… Appellate counsel opted to forgo an obviously serious, preserved Brady claim in favor of two dubious plain-error challenges, one of which was foreclosed by binding precedent. That choice resembles rejecting a lifeboat in favor of two lily pads… Fecklessness is not a strategy.”

Flores-Rivera v. United States, Case No. 18-1963, 2021 U.S. App. LEXIS 32404 (1st Cir. Oct 29, 2021)

– Thomas L. Root

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

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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.

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