Tag Archives: 2255

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 He appealed to the 6th Circuit, which upheld the dismissal in an unpublished opinion.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 An unpublished opinion, along with about $5.00, will get you a venti latte at Starbucks.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.

Nextfriend200115

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

Correcting Your Sentence After Courts Admit a Mistake Gets Harder – Update for January 14, 2020

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6TH CIRCUIT REFUSES § 2241 MOTION ON CIRCUIT SENTENCING STATUTE REINTERPRETATIONS

habeasB191211Since the Anti-Terrorism and Effective Death Penalty Act of 1996, post-conviction habeas corpus motions brought under 28 USC § 2255 have pretty much been one-to-a-customer. A prisoner is entitled to file a second § 2255 motion only where the Supreme Court had issued a constitutional ruling made retroactive (such as 2015’s Johnson v. United States) or where prisoners discover new compelling evidence that they are actually innocent of the offense of conviction.

But § 2255 has a “savings” clause in subsection (e), that lets a prisoner file a classic habeas corpus action under 28 USC § 2241 if the  § 2255 remedy is “inadequate or ineffective to test the legality of his detention.” The Supreme Court held in the 1997 Bousley v. United States decision that if there is a change in statutory interpretation (but not a constitutional violation) that makes a prisoner actually innocent of the crime of conviction, the § 2255(e) “savings” clause applies.

magnacarta200116

For those who came in late: Section 2241 of Title 28 of the U.S. Code establishes procedures for petitioning for a writ of habeas corpus. It establishes the rules for exercising that ancient (think Magna Carta) right to petition the courts whenever one is being detained (jailed or imprisoned) unconstitutionally or contrary to law. It may be the most valuable right anyone has anywhere (that’s why they call it “the Great Writ“).

But when the writ of habeas corpus is aimed not at the jailer, but instead at the constitutionality of the federal court proceeding that got you to prison in the first place, Congress wrote a separate statute – 28 USC § 2255 – to govern those proceedings. A third section, 28 USC § 2254, addresses procedures for state prisoners who have exhausted their habeas rights in state court, and have to head off to federal court.

manyguns190423Now, back to the live action… Just about every federal prisoner files his or her one-and-only § 2255 motion. You have a year from the time your conviction is final, so it is very much a use-it-or-lose-it proposition. But what if (as often happens) you discover something new that could get you released, but the discovery comes after the year passes? Take our hypothetical defendant, Smith N. Wesson. Unsurprisingly, Smith was convicted of being a felon in possession of a firearm under 18 USC § 922(g), despite the fact that he did not know that his prior state conviction was a felony as opposed to a misdemeanor. A felony made him ineligible to possess a gun, a misdemeanor did not. Smith’s lack of knowledge that he was breaking the law made no difference: he would have nonetheless have been guilty. Up until last June, it was not necessary that Smith know he was prohibited from possessing a gun. He only had to know that thing he was carrying was a gun rather than, say, a toaster. And if our man Smith knew anything, he knew guns.

But in June 2019, the Supreme Court threw Smith a bone. It held in Rehaif v. United States that a § 922(g) defendant had to know that he or she was in a class of people prohibited from possessing firearms. After Rehaif, Smith would not be guilty of the crime.

Rehaif was not a decision on the constitutionality of 18 USC § 922(g). Instead, it was just an interpretation of what the statute said. What it had always said, the Supremes said, but none of the courts of appeal had ever under understood that.

gunknot181009But Rehaif put Smith in a quandary: although he was as innocent as a lamb, Smith had already used his § 2255 rights several years before, and he thus could not file a second § 2255 unless he met the narrow criteria. And he definitely did not. But he could file a § 2241 petition, because the § 2255(e) savings clause applies.

Most circuits (not the 10th and 11th) hold that even where a later Supreme Court decision affects only a prisoner’s sentence, not just the prisoner’s conviction, he or she may file a § 2241 petition to get relief. The 4th Circuit has gone further: in the 2018 United States v Wheeler decision, the 4th said that prisoners barred from filing a second § 2255 motion may seek habeas relief under 28 USC § 2241 based on new statutory interpretation decisions from circuit courts of appeal, not just the Supreme Court.

All of which brings us to today’s case. Ramon Hueros got a drug distribution sentence under 21 USC § 841(b)(1)(A), the mandatory minimum time for which was doubled from 10 to 20 years because he had been previously convicted of two state drug convictions. After a 9th Circuit and 4th Circuit decision held those prior state convictions were not really felonies at all (which meant Ramon should never have gotten a 240-month minimum federal sentence), he filed for relief. He had previously filed and lost a § 2255 motion, so he filed a § 2241 petition for habeas corpus under the “savings” clause.

limitone170912Last week, the 6th Circuit ruled 2-1 that Ramon was not entitled to use the § 2255(e) savings clause (and thus, file a 2241 motion) based on a new court of appeals decision changing statutory interpretation. “Although the 4th Circuit has blessed an identical request [in the 2018 decision, United States v. Wheeler], we must respectfully decline. Among our reasons: Congress allowed prisoners to file a second § 2255 motion only if the Supreme Court adopts a new rule of constitutional law… We would write this limit out of the statute if we held that new rules from the circuit courts (whether of statutory or constitutional law) could render 2255 inadequate or ineffective and trigger the right to a second round of litigation under 2241.”

The Circuit said a § 2255 remedy is not ineffective unless a prisoner identifies a new Supreme Court decision – not just a circuit court decision – reinterpreting a statute. The AEDPA history, as well as the practical effects of holding otherwise – such as gutting the efficacy of the § 2255(f) time requirements – suggest that circuit court statutory rulings should not fall under the § 2255(e) savings clause.

This may finally be the savings clause decision that makes it to the Supreme Court, where the Court will impose national uniformity on use of the clause to bring 2241 challenges where statutes are reinterpreted to make what was once illegal now legal.

Hueso v. Barnhart, 2020 U.S.App. LEXIS 618 (6th Cir. Jan. 9, 2020)

– Thomas L. Root

A Nod Is Not As Good As A Wink in Habeas Corpus – Update for December 10, 2019

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2241 PETITION IS SELDOM A SUBSTITUTE FOR A 2255

island191211I would be writing this newsletter from the beach of my own Caribbean island if I had a dime for every guy who tells me he wants to file a petition for habeas corpus under 28 USC § 2241 petition because his 28 USC § 2255 habeas motion has already been denied. It just doesn’t work like that, as the 8th Circuit reminded a defendant last week.

Some quick history: “habeas corpus” is convenient shorthand for “writ of habeas corpus,” which is a judicial command to jailer to produce the “body,” that is, produce the prisoner in court and show by what right that person is being detained. The right was crucial back in the day when the King could jail anyone for anything and hold the prisoner without ever bringing him to court. The right of habeas corpus was so universally assumed to exist that the Constitution only mentions it as an exception, permitting the president to suspend habeas corpus during time of war. The only presidents to actually do that were Lincoln, Grant and FDR.

habeas191211Congress has passed statutes to regulate the use of habeas corpus. Under 28 USC § 2255, a Federal prisoner may challenge the lawfulness of his or her conviction or sentence. If it is the lawfulness of the detention being challenged – for example, how the Bureau of Prisons calculates the termination of a sentence – then a petition for habeas corpus under 28 USC § 2241 is filed.

The law places severe limitations on when a § 2255 motion may be filed, and whether a second one may be filed at all. Some prisoners think that to get around these § 2255 limitations, all they need to do is file a § 2241. Not so.

Chris Lee had been released from a prior federal sentence, and was serving a term of supervised release (sort of like parole) when he picked up some new fraud charges. The judge hearing the SR revocation gave Chris 35 months, but said that the time would be concurrent with anything he got on the new charges. But a different judge handling the new case gave him 57 months, and ordered it would be consecutive with the 35 months he got on the supervised release revocation.

Chris filed a § 2255 motion with his revocation judge, asking that the SR sentence be vacated and then reimposed so that as the later sentence, the BOP would have to run it concurrent regardless of what the 57-month sentence said. But he did not file the § 2255 motion on the right form, so the SR court sent it back for him to fix and refile.

But Chris did not do that. Instead, he filed a § 2241 petition in the district where he was locked up, arguing the BOP was wrong to run the sentences consecutively where the SR sentence said it was to be concurrent. The district where he filed said that the remedy he sought was really one available in a § 2255 motion, and sent it back to his SR judge, who held that the BOP’s interpretation was reasonable and therefore denied the petition.

habeasB191211Last week, the 8th Circuit denied it for a completely different reason, holding that it lacked subject-matter jurisdiction to hear the appeal unless Chris could show that “the remedy under § 2255 would be inadequate or ineffective.” This showing — required by the § 2255(e) “savings clause” — is tough to make. A § 2255 remedy is not inadequate just because a petitioner has already used up his one shot at a § 2255, or where the petitioner was unaware of his claim when the § 2255 was filed, or even if no § 2255 has ever been filed and the time to do so has passed.

Here, Chris failed to show that he was unable to pursue his desired relief by filing a § 2255 motion with the sentencing judge. Had the sentencing judge been persuaded by Chris’ arguments, the Circuit said, he could have had his sentence vacated. Had the sentencing judge denied his petition, he could have appealed that decision. But what he could not do is “forgo a decision on a § 2255 petition in the sentencing court in favor of pursuing a § 2241 petition somewhere else.”

Lee v. Sanders, 2019 U.S. App. LEXIS 35853 (8th Cir Dec. 3, 2019)

– Thomas L. Root

Winning the Appointed Counsel Lottery – Update for December 2, 2019

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3RD CIRCUIT ISSUES REMARKABLE INEFFECTIVE-ASSISTANCE DECISION

When prisoners file post-conviction motions, such as the motion under 28 USC § 2255, they are not entitled to appointed counsel under the Sixth Amendment. However, if their claims seem on their face to be sufficiently meritorious, the courts often appoint lawyers to help them in an evidentiary hearing or on appeal.

lottery191202How the courts select counsel to appoint varies from district to district and circuit to circuit. What does not vary is the relatively small amount of compensation paid for the lawyers’ work.

This is where the appointed counsel lottery comes in.

Usually, a solo practitioner or small firm is appointed, and the amount of time those appointed attorneys can devote is limited by the pedestrian need to make a living. If the hours you bill are what will put food on next month’s table, you are motivated to spend no more time on the appointment than fees available for compensation. It’s a fact of life.

A few times in my career, I have seen the occasional prisoner have appointed to him or her a lawyer at one of the “big law” firms – law partnerships with hundreds of lawyers and a culture of providing every client with a quarter-million dollar defense, regardless of whether the client is Megacorp International or Peter Pauper. I recall one defendant in Indiana calling me to report the court had appointed some lawyer from Washington, D.C. to represent him, at a firm named Jones Day or something like that.

“My friend,” I said, “you just won the lottery.”

(For the uninitiated, I note that Jones, Day, with over 2,500 lawyers and offices around the world, is one of the top grossing firms on the planet. Wikipedia describes it as “one of the most elite law firms in the world”).

And what a difference unlimited resources made for the Indiana defendant.

Just as big a win is when a top-ranked law school has a driven law prof and a gaggle of smart law students working in a practicum. Law students are allowed to provide representation in some cases, under guidance of a licensed attorney-professor. I know a vigorous pro se inmate with a complex legal question to whom a Georgetown University professor and her students were assigned by the D.C. Circuit. The representation he got could not have been purchased for $300,000.

Today, we consider lottery winner Peter Sepling. Pete pled guilty to importing gamma butyrolactone (GBL), a schedule I analogue drug. His lawyer cut a good deal, one that would let him get sentenced without application of a Guidelines career offender enhancement.

But while on bond, Pete got busted for conspiracy to import methylone, another Schedule I drug.

methylone191202Pete cut a deal on the new charge where he would not be prosecuted for the methylone, but instead, it would be factored into the sentence he would get in the GBL case. This is where the fun started.

The Guidelines do not contain any offense level for methylone. Pete’s presentence report compared methylone to methylenedioxymethamphetamine (MDMA), commonly known as ecstasy. The Guidelines holds ecstasy to be pretty bad stuff, equating a unit of that drug to 500 units of marijuana. Consequently, the District Court started its sentencing determination using this 500:1 ratio. In Pete’s case, this converted to 5,000 kilos of pot. The net result was that his Guidelines sentencing range of 27-33 months soared to 188-235 months.

Pete’s lawyer did not object to the methylone-ecstasy comparison, or to the sentencing range. Nor did he file a sentencing memorandum. At sentencing, defense counsel admitted to the court that he had “never heard of methylone… until Sepling got rearrested,” and that he had attempted to learn about the drug from the government. Counsel further explained that the government “tried to educate me… as Mr. Sepling tried to educate me. My understanding of the drug, which is very little, is that drug is – Spellman will explain to the Court – it’s like a watered down ecstasy.”

For its part, the Government also knew next to nothing about methylone.

At his attorney’s request, Pete told the Court methylone is “like ecstasy. If ecstasy is a ten… this stuff is six and lasts about an hour and a half.”

mdma191202The Court admitted it did not know anything about methylone, either, but observed that “in any event, it’s a controlled substance. It’s mind altering. It affects people’s behavior. It’s not a good thing. So I will consider that.” The Court varied downward from the Guidelines, but still gave Pete 102 months, telling him “you’ve committed a serious crime here, and it’s — in particular the methylone and that you put people in harm’s way.”

Pete filed a post-conviction motion under 28 USC § 2255, complaining that his lawyer failed to investigate methylone, and if he had, he would have found that the comparison to ecstasy was way overblown. The district court turned him down, finding that counsel’s performance was not ineffective because, “although sentencing counsel acknowledged that he knew little about methylone, he appropriately likened the drug to a ‘watered down ecstasy’” and “counsel’s characterization of the drug was consistent with Petitioner’s statements at sentencing.”

duke191202Then, Pete’s fortunes changed. On appeal the 3rd Circuit assigned a Duke University law school professor and three Duke law students working in the school’s appellate advocacy clinic to represent Pete. The Blue Devil counselors-in-training pulled out all the stops. Last week, they bulldozed the 3rd Circuit – in a remarkable decision – into reversing the district court, finding that Pete’s lawyer was ineffective, and holding that Pete was prejudiced by it.

The Circuit initially noted that Pete’s lawyer made the first question – whether his representation fell below the standards required of attorneys – an easy one to answer. At sentencing, the attorney admitted he knew nothing about methylone, and he made it clear that he had done nothing to educate himself, despite having a clear duty to do so. The decision cites several scientific studies and court decisions that were available to him, all of which found that methylone is much less serious that ecstasy. The 3rd said that “properly prepared counsel could have made a strong argument, grounded in readily available research, that methylone is significantly less serious than MDMA.”

In other words, the 3rd Circuit said that Pete’s lawyer was ineffective for not arguing that the Guidelines’ 500:1 ratio was flawed, and should be ignored by the sentencing court. Ineffectiveness for failing to attack the Guidelines for being wrong is a holding without precedent.

The district court denied Pete’s § 2255 motion in part because defense counsel’s description of methylone was good enough, and that Pete himself testified as to its effects as sentencing. The 3rd Circuit blew that justification apart:

Rather than doing any research into the pharmacological effect of methylone in order to competently represent his client and inform the District Court’s application of the Guidelines table, Sentencing Counsel relied upon his client to explain the effects of methylone. Sentencing Counsel thus “decided to outsource to Sepling any discussion of methylone at the hearing.”

Still, lawyer ineffectiveness is only one-half of the equation. If a lawyer screws the pooch, but the defendant ends up being none the worse for the blunder, there is (in the words of Strickland v. Washington, the Holy Grail of ineffective assistance of counsel) no prejudice.

stupidlawyr191202After having read hundreds of 2255 decisions over the past 25 years, I was sure what was coming. Pete was sentenced far below his Guidelines range. Normally, a court would hold that because Pete got a downward variance sentence well under his guidelines, he could not possibly have been prejudiced by his lawyer’s failures.

But instead, the 3rd Circuit quite properly said the below-guidelines sentence was irrelevant to whether Pete was prejudiced:

A significant variance from an arguably high and inaccurate guideline sentence is not a gift. The District Court expressed a desire to base Sepling’s sentence on the seriousness of distributing methylone. It is impossible to review the transcript of the sentencing proceeding without concluding that the District Court did not have sufficient information to assess the actual seriousness of methylone. We therefore cannot dismiss the very real possibility that the court may have been amenable to a further downward variance based upon evidence specific to methylone’s reduced effect as compared to MDMA… Because Sentencing Counsel’s dereliction put the District Court in a position where it was literally ‘flying blind’ at sentencing, there was no way for a district court to know if the sentence imposed was the least serious penalty consistent with the Court’s objective in imposing the sentence.

This is an astounding case. I salute Duke Law (and sorry about the Stephen F. Austin thing).

United States v. Sepling, 2019 U.S. App. LEXIS 35706 (3rd Cir. Nov. 29, 2019)

– Thomas L. Root

2255 Remand Entitled to Full Resentencing – Update for October 30, 2019

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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.

OWN YOUR MISTAKE

It is gratifying to see a court admit that it screwed the pooch.

goofed191029Larry Flack pled guilty to two counts. Later, he filed a §2255 motion, he argued that a conviction for receipt of child porn and for a separate count of possession of child porn violated the 5th Amendment’s prohibition against double jeopardy. The district court denied him, but the 6th Circuit granted Larry’s motion on appeal. The Circuit issued a “general remand” order, with instructions to the district court to vacate one of the convictions. The remand order gave “the district court discretionary authority over which of Flack’s convictions to vacate and whether to conduct a resentencing hearing.”

The district court did just that, vacating Larry’s possession conviction but imposing the same 262-month sentence. In its order, the district court said it “need not conduct a resentencing hearing” because its previous sentence “properly accounted” for the sentencing factors listed in 18 USC § 3553. Larry appealed, arguing the district court abused its discretion by denying him a full resentencing hearing.

sentence170511Last week, the 6th Circuit agreed. “We have previously held,” the Circuit said, “albeit on direct review, that upon a general remand for resentencing, a defendant has a right to a plenary resentencing hearing at which he may be present and allocute.” Larry’s case was one of collateral review, the Court admitted, not direct review, “but the point of that decision is that a sentencing is sentencing, regardless of the docket entries that precede it. And a sentencing must occur in open court with the defendant present.”

The 6th admitted that “in this case the district court’s error was one that this court invited… The reason why the district court did not hold a resentencing hearing, in all likelihood, is that our remand order seemed to suggest that the court did not need to. But on this record that suggestion was mistaken.” The Court vacated Larry’s sentence and remanded for him to be resentenced pursuant to a sentencing hearing.

United States v. Flack, 2019 U.S. App. LEXIS 31573 (6th Cir. Oct. 23, 2019)

– Thomas L. Root

Guidelines Career Offenders Out of Luck on 2255s – Update for September 9, 2019

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6th CIRCUIT SAYS GUIDELINES CAREER OFFENDERS WANTING HAVIS OR DAVIS ADJUSTMENTS ARE OUT OF LUCK

toughluck180419Dwight Bullard pleaded guilty to distributing heroin and being a felon in possession of a firearm. At sentencing, the district court determined that he qualified as a career offender under the Sentencing Guidelines, a provision that sets sentencing ranges stratospherically high for people convicted of two prior drug crimes or crimes of violence.

One of Dwight’s prior drug offenses was for attempted to sell drugs. After the 6th Circuit’s decision in United States v. Havis, which held that attempted drug crimes did not qualify a predicate offense for Guidelines career offender status, Ballard challenged his own Guidelines career offender status in a post-conviction motion under 28 USC § 2255.

The difference between being a career offender and not being a career offender is huge, sometimes the difference between under five years and nearly 20 years in prison. The sentencing ranges are advisory, of course – courts are not obligated to follow them, but do over half of the time – but nevertheless the sentencing ranges are very influential.

The district court denied his 2255 motion, so Dwight appealed.

On appeal, the government admitted that Dwight was right, because Havis held the Guidelines definition of a controlled substance offense does not include attempt crimes. The 6th Circuit agreed that if Dwight received his sentence today, he would not be a Guidelines career offender.

lawyermistake170227But a non-constitutional challenge to an advisory guidelines range may not be raised in a post-conviction motion such as a 2255. Ballard tried to get around that problem by claiming that his trial and appeals attorneys were ineffective, because they did not raise the argument that ultimately won in Havis. Ineffective of counsel is a Sixth Amendment claim, and thus a constitutional issue.

Nevertheless, the 6th Circuit upheld dismissal of Dwight’s 2255. While his claim was cognizable under 2255, the Court said, Dwight could not show that his attorneys were ineffective for not raising the issue, and even if they had been, he had suffered no prejudice.

lovelawyerB170811Before Havis, there was no case precedent in the Circuit that would have held Dwight’s Arizona prior not to be a controlled substance offense. That being the case, the Circuit held, it was entirely reasonable for Dwight’s trial counsel not to object that the prior was used to make Dwight a career offender. As it is, his trial attorney argued at sentencing that Dwight was not “an authentic career offender,” and thus got him sentenced 152 months under his minimum Guidelines.

Even if Dwight’s lawyer should have raised the same argument that later won in Havis, the 6th Circuit held, the district court outcome would not have been different. This is because under the case law at the time, the district court would have counted the Arizona conviction toward career offender status even if Dwight’s lawyer had objected.

In so many words, the 6th Circuit says people who received career offender sentences because of what courts now recognize as a mistake, people who would never qualify for such a status today because of Havis or Davis, are simply out of luck.

Bullard v. United States, 2019 U.S. App. LEXIS 26643 (6th Cir. Sept. 4, 2019)

– Thomas L. Root