Tag Archives: 2255

11th Circuit Says ‘Answer All the Questions, Judge’ – Update for November 17, 2020

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11TH CIRCUIT SENDS § 2255 MOTION BACK TO DISTRICT COURT FOR CLISBY ERROR

clisby201117A 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.”

paperwork201117To 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 that Clisby will cause a case to be sent back until the district court finishes all of the paperwork.

Senter v. United States, 2020 U.S. App. LEXIS 35704 (11th Cir. November 13, 2020)

– Thomas L. Root

“If At First You Don’t Succeed…” Doesn’t Work in Habeas Corpus – Update for October 28, 2020

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WHEN TOO MUCH IS MORE THAN ENOUGH

oneshot201029You pretty much only get one shot trying to convince your judge you were wrongly convicted in a habeas corpus motion under 28 USC § 2255 (except for a few circumstances not relevant here). But how about the “saving clause” in § 2255(e) which lets an inmate use another route to file habeas corpus when a § 2255 petition “is inadequate or ineffective to test the legality of detention?”

Roberto Beras, convicted of using his check cashing/money transfer business to launder millions in drug proceeds, figured § 2255(e) meant he could file a § 2241 petition for habeas corpus if the § 2255 no longer worked (because it had already been filed and denied in the 2nd Circuit, and two requests to file successive § 2255s denied as well).

Roberto figured the Supreme Court’s 2008 Cuellar v. United States decision was his ticket home. So even while his § 2255 motion was pending in New York, Roberto was filing § 2241 habeas corpus motions wherever he happened to be. In two petitions filed in U.S. District Court for the Northern District of Ohio, he claimed he was innocent under the Cuellar statutory interpretation decision, but the Northern District court disagreed, finding Roberto would have been found guilty even under Cuellar. When Roberto was transferred to a facility in the Western District of Louisiana, he filed the same claim again.

Last week, the 5th Circuit threw out Roberto’s latest § 2241 petition as an “abuse of the writ.”

The § 2255(e) “saving clause” permits an inmate to file a 28 USC § 2241 petition based on new interpretations of federal statutes – like Cuellar – when the claim was previously “foreclosed by circuit law at the time when it should have been raised” and when the “retroactively applicable decision establishes that the petitioner may have been convicted of a nonexistent offense.” But, the Circuit said, that wasn’t the issue here. Instead, Roberto’s § 2241 should be dismissed as “an abuse of the writ of habeas corpus.”

2255(e)filings201029“Abuse of the writ” is a common-law based “body of equitable principles informed and controlled by historical usage, statutory developments, and judicial decisions.” Under 28 USC § 2244(a), the Circuit held, it can dismiss a successive habeas application as an “abuse of the writ” where the movant raises a claim in a subsequent petition that either was raised or could have been raised in an earlier petition.

The 5th said Roberto “has filed claims in at least four circuits and for nearly twenty years. To allow him to repeat the same claim – heard and denied by another circuit – would be to condone forum-shopping… Perpetual disrespect for the finality of convictions disparages the entire criminal justice system.”

Beras v. Johnson, Case No. 18-30684, 2020 U.S. App. LEXIS 33058 (5th Cir Oct 20, 2020)

– Thomas L. Root

1st Circuit Gives Pre-Booker Career Offenders Some Relief– Update for October 5, 2020

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NO DEFENDANT LEFT BEHIND

vagueness160110The 2015 Supreme Court decision Johnson v. United States was a landmark, holding that the residual clause in the Armed Career Criminal Act’s definition of “crime of violence” was unconstitutionally vague. Johnson’s reasoning led to Sessions v. Dimaya (extending Johnson to the criminal code’s general definition of “crime of violence” at 18 USC § 16(b)) and 2019’s United States v. Davis holding extending Johnson to 18 USC § 924(c), the “use or carry a firearm” statute.

But thousands of inmates who were held to be Guidelines “career offenders” because of prior crimes of violence got no relief. A Guidelines “career offender” is very different from an ACCA armed career criminal. A Guidelines career offender is someone with two prior crimes of violence or serious drug convictions (federal or state). If a defendant qualifies as a Guidelines career offender, he or she will be deemed to have the highest possible criminal history score and a Guidelines offense level that ensures a whopping sentencing range.

After Johnson, a number of Guidelines career offenders, whose status had been fixed by including some dubious prior convictions as “violent,” sought the same kind of relief that Johnson afforded armed career criminals. But in 2017 the Supremes said that Johnson did not apply to the Guidelines. Beckles v. United States held that the Guidelines were not subject to the same kind of “vagueness” challenge that worked in Johnson, because the Guidelines did not “fix the permissible range of sentences, but merely guided the exercise of discretion in choosing a sentence within the statutory range.”

This may have been so for people sentenced under the advisory Guidelines. However, back before the 2005 Supreme Court decision in United States v. Booker, those “advisory” Guidelines were mandatory. They did not guide a judge’s discretion. Instead, the law required a judge to sentence within the applicable Guidelines sentencing range except in very narrow circumstances, and then only if the sentencing court jumped through the many hoops the Guidelines erected.

Robber160229So, how about guys like Tony Shea, who was sentenced after a bank robbery spree as a career offender back in 1998? Tony’s prior crimes of violence were pretty shaky bases for a career offender enhancement (not that Tony didn’t have plenty of problems for his string of armed robberies, but that’s another story). Tony was looking at minimum 430 months under normal Guidelines, nothing to sneeze at, but with the career offender label, Tony’s minimum sentence shot that up to 567 months (that’s 47-plus years, or 330 dog years).

Tony filed a § 2255 motion arguing that because his Guidelines career offender sentence was mandatory, not “advisory,” the Johnson holding should apply to wipe out his career offender status.

Last Monday, the 1st Circuit agreed. The appeals court noted that while Beckles was right that advisory Guidelines guide a judge’s discretion rather than “fix the permissible range of sentences,” the pre-Booker Guidelines did much more than this. The Circuit said “when the pre-Booker Guidelines ‘bound the judge to impose a sentence within’ a prescribed range, as they ordinarily did, they necessarily “fixed the permissible range of sentences” she could impose.”

Judicial despotism... probably not a good thing.
         Judicial despotism… probably not a good thing.

“It’s easy,” the 1st said “to see why vague laws that fix sentences… violate the Due Process Clause. The… rule applied in Booker serves two main functions. First, fair notice: requiring the indictment to allege ‘every fact which is legally essential to the punishment to be inflicted… enables the defendant to determine the species of offence with which he is charged in order that he may prepare his defense accordingly…” Second, “the rule also guards against the threat of ‘judicial despotism’ that could arise from ‘arbitrary punishments upon arbitrary convictions,’ by requiring the jury to find each fact the law makes essential to his punishment.”

Only the 11th Circuit has explicitly held that Beckles does not apply to mandatory Guidelines career offender enhancements. The 5th, 8th and 10th Circuits are on the fence. This 1st Circuit decision is the first to emphatically apply Johnson to give relief to people like Tony, who is already well into his third decade of imprisonment.

Shea v. United States, 2020 U.S. App. LEXIS 30776 (1st Cir., September 28, 2020)

– Thomas L. Root

Sobering § 2255 Lessons – Update for September 10, 2020

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A COUPLE OF CAUTIONARY 2255 DECISIONS

A pair of Circuit decisions on 28 U.S.C. § 2255 motions last week did not deliver a lot of hope to petitioners.

bribeB160627In one 6th Circuit decision, former Cuyahoga County Commissioner Jimmy Dimora got a number of bribery-related convictions vacated because of the intervening 2016 Supreme Court decision in McDonnell v. United States. The decision is instructive for public officials and employees caught up in so-called pay-to-play cases, where they are accused of trading official favors for profit. But the cautionary note for the rest of § 2255 movants relates to cumulative error.

Jimmy, like many § 2255 movants, argued that even if no single error he cited justified reversal, the cumulative effect of the many errors he cited was to violate his due process rights. “Cumulative error” is a favorite catch-all issue, added to the end of a § 2255 motion to give it sufficient heft.

Thehe cumulative error doctrine provides that an aggregation of errors that are in and of themselves insufficient to require a reversal can nevertheless yield a denial of a defendant’s 5th Amendment right to a fair trial, and thus – by the sheer weight of the pile of mistakes, require a mistrial.

As a circuit court of appeals observed in a case almost 30 years ago, “the possibility of cumulative error is often acknowledged but practically never found persuasive.” The doctrine justifies reversal only in the unusual case in which synergistic or repetitive error violates the defendant’s constitutional right to a fair trial.

The 6th Circuit poured additional cold water on the doctrine last week. The Circuit doubts that “cumulative error” has any place in a § 2255 motion: “We note, however, that we are uncertain whether this theory of prejudice is available to § 2255 petitioners… And we are especially uncertain that it is available where one of two claimed errors is an evidentiary error… But we leave these questions for the district court to consider on remand after it assesses the harmlessness of the instructional error independent of any cumulative effect.”

shootemup161122Meanwhile, in the 5th Circuit, Lauro Valdez used a convenient handgun to shoot a man Lauro said was trying to break in. His self-defense claim might have worked, except that after Lauro shot him once, he walked over to the prostrate victim and pumped more three rounds into him.

An old lawyer I knew used to say, “Two bullets or two bodies, and you’ve got a problem.” That was Lauro’s predicament. He could explain the one shot at an intruder. The other three a minute later – not so easy.

Lauro was charged with being a felon-in-possession of a gun in violation of 18 USC § 922(g). His lawyer told him that he faced a 24-36 month Guidelines range if he were convicted. That was wrong, because USSG § 2K2.1(c)(1) has a cross-reference for murder – which clearly applied here – that would raise Lauro’s Guidelines to at least 324 months. That meant Lauro would undoubtedly get 10 years, the maximum sentence for felons-in-possession allowed by statute.

Being advised wrongly by his lawyer, Lauro figured he would use the “justification” defense at trial, arguing he had just grabbed a gun to protect himself from an imminent threat. This might have worked for him, too, except that on the eve of trial, he learned that his wife would testify the gun had been on Lauro’s nightstand a week before the shooting, way too long ago to let him argue a sudden need to possess a gun against an imminent threat.

Lauro decided to plead guilty. At the change-of-plea hearing, the judge explained that § 922(g) carried a 120-month statutory maximum, and that regardless of what his lawyer might have said about a possible sentence, “it’s not a guarantee and it’s not binding on this Court.”

Lauro, of course, agreed. Defendants in those hearings usually are able to process nothing the judge says, and Lauro was no exception.

At sentencing, the judge gave Lauro the full 10 years, using the Guidelines cross reference for murder. Lauro later claimed in his § 2255 motion that his lawyer had predicted only 36 months, and had said nothing about a murder cross-reference to the Guidelines.if he had known about the Guidelines’ murder cross-reference, Lauro wrote in his motion, he would not have waived his right to a jury trial. His lawyer admitted in an affidavit that he had completely missed the murder cross-reference when he advised Lauro.

lawyer15170317The issue when a defendant alleges his counsel’s errors led him to take a plea rather than go to trial is not whether the defendant could have won the trial, but instead only whether a rational defendant would have chosen to go to trial. Here, the 5th Circuit held Lauro’s lawyer’s performance was not deficient, because both he and the court told Juan about the 10-year statutory maximum. The Circuit so much as said that a competent lawyer can’t figure out the Guidelines, so misadvising his or her client was not deficient representation.

What’s more, the 5th said, Lauro suffered no prejudice, because it was clear that “rather than risking conviction by the jury (with no sentencing benefits whatsoever), Lauro hoped to parlay a late guilty plea into a credit for acceptance of responsibility and additional benefit from cooperating or rendering substantial assistance. In other words, knowing that wifey was going to blow up his defense, the Circuit said, Lauro did what any rational defendant would do.

One judge dissented, as he should have, from this terrible decision. Any rational defendant – being told that if he pled, he would get 120 months and if he went to trial, he would get 120 months – would take his chances with a jury.

Dimora v. United States, Case No. 18-4260, 2020 U.S. App. LEXIS 27675 (6th Cir Aug 31, 2020)

United States v. Valdez, Case No. 18-40495, 2020 U.S. App. LEXIS 27909 (5th Cir. Sep 1, 2020)

– Thomas L. Root

Lord, Save Us From Parents… – Update for June 30, 2020

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FATHER KNOWS BEST

Seldom is a defendant is such a mess that the advice of his family or friends cannot make things worse. That’s what happened to David Day.

David faced a messy white-collar case, one that could easily yield a Guidelines sentence of more than 90 months. His public defengoodlawyer160314der was top-drawer (as full-time public defenders usually are): she could assess a loser of a case, and she did, negotiating a government offer for a 51-month sentence.

But parents always want the best for their kids. Although David was in his mid-30s, his Dad figured prominently in planning his defense. And Dad, who had seen all of the relevant TV shows,  figured a court-appointed lawyer couldn’t possibly be any good. He convinced David to reject the offer, and then to dump his PD in favor of hiring two lawyers Dad knew, both whom could smell a fee and thus told David he could easily beat the case.

Things went downhill fast.

After the new lawyers collected their fee, paid over several months (by Dad), they entered their appearance in the case. The government generously re-offered the 51 month deal, but the new lawyers – without ever opening the case files, which they had not yet bothered to pick up from the public defender – told David to reject 51 months and go to trial.

toast200630A few weeks later, the new lawyers finally picked up the files and read the discovery. For the first time, they could see that David was toast. They convinced him to plead, but by then there was no deal. He entered an open plea, which is a plea to the whole indictment without any deal whatsoever. When all the dust settled, David got 92 months.

David filed a 28 USC § 2255 post-conviction motion, arguing the hired lawyers were incompetent for telling him to reject the plea offer without having first read the file. That seems like a pretty basic blunder. But David’s trial judge didn’t think so. She denied the § 2255 motion without a hearing, holding that even if the lawyer had done that, David could not show he was prejudiced by their mistake, because the government’s offered plea agreement would not have bound the court to a particular sentence, so there was no guarantee the judge would have sentenced David to 51 months.

Last week, the 7th Circuit reversed. The proper inquiry, the Circuit said, is not whether the sentencing court is bound by a plea agreement, but whether it is reasonably probable that the court would have accepted its terms and that the resulting sentence would have been less than the one that was actually imposed.

The 7th complained that the “judge’s prejudice analysis also overlooks the practical realities of plea negotiations. Few court observers would contend that the government’s views as reflected in its plea stipulations and Guidelines recommendations have no influence on a judge’s real-world sentencing decisions… Judges usually follow the nonbinding recommendation in Rule 11 type B agreements in part because they know that not accepting prosecutors’ sentencing recommendations will hamper plea negotiations in future cases. Why would prosecutors offer nonbinding plea agreements — and defendants accept them—if they count for nothing in the sentencing decision?

dumblawyer180108The government weirdly warned the Circuit that ruling in David’s favor would produce “absurd results” by encouraging defendants to engage incompetent attorneys. Of course they would: it makes perfect sense to hire a dummy and get slammed with a lot of time, so that you can roll the dice on your less-than-10% chance that you can win your § 2255 a few years down the road.

Ask David. He’s already served all but 12 months of his 92-month sentence. No doubt he’s happier to have his rights vindicated after he’s done the time he would not have had if he had stuck with his public defender.

The Court, with regal understatement, wrote the government argument “strikes us as an entirely unrealistic concern.”

Day v. United States, 2020 U.S. App. LEXIS 19640 (7th Cir. June 24, 2020)

– Thomas L. Root

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

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SCOTUS PUNTS ON SUCCESSIVE 2255 MOTION CASE

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

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

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

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

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

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

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

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

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

– Thomas L. Root

Ask Not For Whom The Deadline Tolls… – Update for March 25, 2020

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9TH CIRCUIT DELIVERS TIMELY WARNING ON LIMITS OF EQUITABLE TOLLING

With law libraries closed across the federal prison system, and typewriters, forms, copiers and the like largely unavailable, more than one inmate is probably going to blow a court deadline. A quick handwritten request for more time is always a good idea, but some deadlines – for motions under 28 USC § 2255, notices of appeal, and F.R.Civ.P. 59(e) motions, for example – have deadlines that courts can only extend with great difficulty, if at all.

equitabletolling200325A quick answer that inmate late filers have often heard from law library dwellers is to ask for “equitable tolling.” To hear some jailhouse lawyers describe it, equitable tolling is the fairy dust of forgiveness spread by judges riding unicorns. In fact, it is a bit more complex than that.

Equitable tolling is a doctrine in which courts, as a matter of fairness, pretend the deadline moved to the day the party actually filed his or her document, rather than the day on which the statute or rules said it was due. Last week, the 9th Circuit reminded everyone of equitable tolling’s limits, and what a movant has to show in order to qualify for equitable tolling when it does apply.

Tony Smith’s state lawyer waited 66 days to send him the appeals court’s denial order. The one-year period for Tony to file his federal habeas claim began with the state court’s decision. Tony figured, however, that because his lawyer caused a 66-day delay in getting the order to him, it was only equitable that he take an extra 66 days (at the end of the one-year period he had to file a federal 28 USC § 2254 action), to make up for the 66-day delay caused by his lawyer’s laziness.

Sorry, Tony… that’s not what “equitable” means in this sense. The district court held that Tony’s 28 USC § 2254 filing – 66 days after the deadline – was late, and not entitled to equitable tolling. The 9th Circuit agreed.

To be eligible for equitable tolling, a movant has to demonstrate he has been pursuing his rights diligently, not only while an impediment to filing caused by an extraordinary circumstance (his lawyer’s laziness) existed, but before and after as well, up to the time of filing his claim in federal court. The court rejected the “stop-clock” approach, the idea that when a movant is impeded from filing his petition by extraordinary circumstances while the statutory time is still running, he may add the time during which he was impeded to extend the limitations period.

timewaits200325Instead, the movant must show he was reasonably diligent in using the time after impediment was removed. In Tony’s case, this would have been in the 10 months after he got his appeals decision from his attorney.

Only when an extraordinary circumstance prevented a movant who was acting with reasonable diligence from making a timely filing that equitable tolling may apply. There is no hard rule (which is a feature of equity, not a bug). Instead, the court will look closely at the facts of the case. Because Tony could not explain how he was not able to file in the remaining 10 months of the period, equitable tolling did not help him.

Smith v. Davis, 2020 U.S. App. LEXIS 8810 (9th Cir Mar 20, 2020)

– Thomas L. Root

Timing Is Everything – Update for March 17, 2020

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A DISTINCTION WITH A DIFFERENCE

gunb160201Clint Rumley had amassed quite a record by the time he was convicted of being a felon in possession of a gun under 18 USC 922(g)(1). He had over 20 prior state convictions, with five of them eligible predicate crimes of violence or drug offenses that would let the district court sentence him to a minimum 15 years under the Armed Career Criminal Act. Clint’s presentence report identified four of the prior convictions as supporting the ACCA sentence enhancement, one more than the minimum three priors called for by the ACCA.

When Johnson v. United States – a 2015 Supreme Court case that substantially narrowed what crimes could be considered crimes of violence – came along seven years into Clint’s 15-year sentence, he filed a post-conviction motion under 28 USC § 2255 to have his ACCA sentence set aside. The district court agreed with Clint that two of the four predicate convictions identified in the presentence report no longer counted, and vacated his 15-year sentence. But when Clint was resentenced, the new PSR noted that one state conviction not previously relied on for as qualifying as an ACCA predicate should have been counted against him. That conviction, plus the two priors that remained crimes of violence under the ACCA, got Clint resentenced to 15 years.

Clint appealed, relying on a 4th Circuit decision, United States v. Hodge. Hodge held that the government was not allowed to oppose a 28 USC 2255 motion raising Johnson claims by arguing that a prior conviction that had not been designated during the sentencing proceeding should have been counted as an ACCA predicate. But last week the 4th Circuit said Hodge was different, and upheld Clint’s new 15-year sentence.

In Hodge, the Circuit ruled, “we explained that defendants have a right to adequate notice of the government’s plan to seek an ACCA enhancement and of the convictions that may support that enhancement” (typically done by listing the supporting convictions in the PSR). When the government opposed a § 2255 motion by arguing that there were other convictions that could have been used to support an ACCA, the Circuit said, it shifted the burden of proof: while “at the sentencing the government has the burden of proving the defendant has three prior ACCA-qualifying convictions… on collateral review, the defendant has the burden of proving that the convictions supporting his ACCA enhancement are infirm.”

judge160425The Hodge concerns, however, do not arise in a full resentencing like the one Clint got. ‘The court conducted a full sentencing hearing, at which it received evidence and made findings of fact,” the Circuit said. Unlike Hodge, Clint “had adequate notice of the designated predicate convictions, giving him a full opportunity to challenge them. Moreover, the 2019 sentencing proceeding was conducted under the burdens of proof applicable in every sentencing, and our review is conducted under direct appeal standards, rather than on standards applicable to review of collateral proceedings.”

United States v. Rumley, 2020 U.S. App. LEXIS 8128 (4th Cir. Mar. 13, 2020)

– Thomas L. Root

COAs a Rigged Game in 11th Circuit, Supreme Court Petitioner Alleges – Update for February 12, 2020

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SUPREME COURT PETITION QUESTIONS COA UNFAIRNESS

habeasB191211For federal prisoners, the last chance to argue that your conviction or sentence was unlawful comes within a year of the conviction becoming final, in a habeas corpus petition filed according to the restrictions of 28 USC 2255. Virtually all of those are denied by the district court that convicted and sentenced the petitioners, because, face it, how many people – even judges – like to admit they screwed up?

Appeal of a denied 2255 motion is not automatic. Instead, Congress has decreed that would-be appellants get a certificate of appealability (“COA”), granting permission to appeal on a per-issue basis, before briefing can go forward.

COAs are the key to the kingdom: you cannot appeal an order dismissing your 2255 claim without one. But a petition for writ of certiorari before the Supreme Court now asks what it means for due process and access to courts if petitioners in one circuit, are 69% more likely to get a COA issued than similar movants in another?

slot161208The petition – filed by a Columbia Law School professor on behalf of an Alabama state inmate – contends the arbitrariness in COA rulings by appellate courts, particularly the 11th Circuit, reflects a systemic breakdown in the COA review process.

“A lot of petitioners are pro se, and they’re not really getting reviewed anymore,” Prof. Bernard Harcourt told the National Law Journal last week. “It’s almost as if the [statutory] mechanism requiring a COA has closed the gate on federal circuit review of their habeas denials.”

Harcourt filed the petition on behalf of Phillip Tomlin, who has been in state prison for 42 years serving life without parole. The 11th Circuit denied Tomlin a COA last year on a legal question that the Court had explicitly left open in a 2011 decision, by applying “an improper, too demanding, and unduly burdensome” COA standard, the petition argues.

dice161221Tomlin’s COA was denied by 11th Circuit Judge Charles Wilson (who grants a mere 2.7% of COAs he reviews, according to a Columbia University Law School study published two months ago). The study showed significant disparities in grant rates for capital prisoners (58%) and noncapital prisoners (8%) in the 11th Circuit. Of more concern, the study suggests that it’s a crap shoot for any COA filer. The 11th Circuit using a single judge to review COA requests, and the grant rates among those judges range from a low of 2.33% to a high of 25.8% – more than an order of magnitude.

The study also compared the 11th to the 1st Circuit, finding that the 11th Circuit’s 8.4% noncapital COA grant rate is far below the 1st Circuit’s 14.3%.”

The Supreme Court has ordered the State of Alabama to file a response by Feb. 24. The Court will then decide whether to hear the case.

Petition for Writ of Certiorari, Tomlin v Patterson, Case No. 19-7127 (Dec 27, 2019)

Udall, Certificates of Appealability in Habeas Cases in the United States Court of Appeals for the Eleventh Circuit: A Study (Columbia Law School, Dec 24, 2019)

National Law Journal, Have Circuit Courts ‘Closed the Gate’ on Some Inmate Appeals? (Feb 5)

– Thomas L. Root

“Friends” are Friends When The Court Says They Are – Update for January 15, 2020

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CAN I BE YOUR (NEXT) FRIEND?

Prisoner Walter Cardin prepared a post-conviction motion under 28 USC § 2255 motion attacking his white-collar fraud conviction, due on June 8th. But two days before the filing, the Bureau of Prisons hauled him from his prison  to the hospital. Lucky for Walt, his sister Natalie had been helping him and had a copy of draft motion.

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Natalie filed the motion, signing the draft “Walt Cardin by Natalie Cardin,” and declaring “under penalty of perjury” that she was “attorney in fact, P.P. for Walt Cardin” and that he was incarcerated and “otherwise unavailable to sign this motion and submit it in a timely manner.” On June 8, Walt was released from the hospital and returned to prison.

The district court sat on the motion for a few months, and then invited the government to argue that the motion was improper because of Natalie’s signature. The government obligingly responded, arguing the motion should be dismissed on the ground that Natalie lacked standing to file it as a “next friend” for her brother.

Walt responded by amending the § 2255 motion to add his signature, along with a statement from his case manager that he had been in the hospital at the time the § 2255 motion was filed and a copy of the power of attorney he had given Natalie months earlier, well before the June 8th submission.

A full 21 months after the § 2255 motion was filed, the district court held that Natalie had failed “provide an adequate explanation” as to why Walt himself could not have filed the original § 2255 motion and to show that she was “truly dedicated” to Walt’s best interests when she filed it. The court threw out Walt’s post-conviction motion without considering the § 2255 pleading on its merits at all.

Last week, the 6th Circuit reversed. The Circuit observed that the “next friend” doctrine determines when a collateral motion brought by a person who does not have standing to pursue the motion should be deemed brought by a person who does. A “next friend” does not himself become a party to the habeas corpus action in which he participates, but simply pursues the cause on behalf of the detained person.

There are two requirements to be a “next friend:” First, the filer must provide an adequate explanation — such as inaccessibility, mental incompetence, or other disability — why the person he or she is filing for (called the real party in interest) cannot bring the motion himself. Second, the “next friend” must be truly dedicated to the best interests of the person on whose behalf he seeks to file.

The district court rejected Walt’s explanations in his amendment, holding that it was up to Natalie – not Walt – to show that she qualified as a “next friend.” The 6th Circuit said that was wrong: “That the putative next friend bears the burden of proving her status does not mean that the prisoner’s own views, when he can express them, are beside the point. To the contrary, courts routinely consider the prisoner’s statements in determining whether a putative next friend is an actual one.”

delayed200115The district court also thought Walt’s explanation was inadequate because he should have filed the motion earlier in the one-year limitations period for such motions specified in 28 USC § 2255(f)(1). “But that reasoning would shorten from 365 days to 362 the limitations period specified by Congress,” the 6th Circuit said. “The reality is that a great deal of legal work typically gets done in the 72 hours before a filing deadline. The courts should not impose on litigants (much less pro se ones) standards of diligence that nobody meets in practice.”

Practically speaking, the decision – which sent the § 2255 motion back to district court for a ruling on its merits – will have little impact on Walt. He has served his sentence, having been released 11 months ago. And so grind the wheels of justice…

Cardin v. United States, 2020 U.S. App. LEXIS 617 (6th Cir. Jan. 9, 2020)

– Thomas L. Root