Tag Archives: 2255

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

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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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

Time Waits for No Mike – Update for August 7, 2019

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JUST THE NEW FACTS, MA’AM

notimejibba160915A federal post-conviction motion filed pursuant to 28 USC § 2255  has to be filed within certain deadlines. Beyond the one everyone knows, one year from finality of conviction, 28 USC § 2255(f) has three other categories. The most widely used is § 2255(f)(4), giving a filer one year from “the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.”

Mike Ingram was convicted of a drug offense, and had his mandatory minimum doubled after the government filed a notice of  enhancement (for a prior drug conviction) under 21 USC § 851. A few years after his deadline for a § 2255 motion passed, the United States Sentencing Commission issued a report that showed widespread disparity among U.S. Attorney’s offices in the filing of § 851 notices. In other words, a drug defendant with a prior drug conviction was much more likely to get his or her minimum sentence doubled in Davenport, Iowa, for example, than in Sioux Falls, South Dakota, for no better reason than geography.

A year or so after that, Mike’s district judge – the outstanding jurist Mark Bennett – obtained the underlying data the Sentencing Commission had relied on, reinterpreted it in greater detail, and then refused in United States v. Young to apply a § 851 enhancement to a defendant’s sentence. The judge reasoned that “prior to enactment of a National Department of Justice § 851 policy, there was a gross national and district wide disparity in the imposition of such an enhancement for similarly situated defendants.”

Ontime160103Based on the Young ruling, Mike filed a § 2255 motion. He claimed his petition was timely under § 2255(f)(1) because it was filed within a year of the Young decision, which he argued had revealed new conclusions from the Sentencing Commission data. His district agreed, but denied the motion for other reasons.

On appeal, Mike argued the merits of his claim, but the government cross-appealed, contending his § 2255 motion had not been timely filed and never should have been considered at all.

Last week, the 8th Circuit agreed that the § 2255 was filed too late. The Court agreed that although a judicial decision is never considered a new fact under § 2255(f)(4), Mike was right that he was not relying on the Young ruling as such, but rather on “new facts” in Young concerning the disparate application of the § 851 enhancement among the various federal districts. Because the Young decision included new analysis of the underlying 2011 Report data, the Circuit agreed Mike was relying on “the facts presented in Young about the disparate application of § 851 among the various federal districts, not the Young decision itself.” These are indeed new facts, the 8th said.

Sweet Brown could have been on the appeals panel.
Sweet Brown could have been on the appeals panel.

But “new facts” are only part of the § 2255(f)(4) test. Mike also had to show “that he acted with diligence to discover the new fact.” Here, the appeals court said, it was the issuance of the Commission’s 2011 Report — not the release of the Young decision — that triggered Mike’s duty to act with due diligence. “While the Commission’s 2011 Report may not have set forth the raw data underlying its conclusions,” the Circuit said, “it certainly provided notice that a disparity existed in the application of § 851.” Mike “has not explained why he could not have acted sooner to bring his equal protection/selective enforcement claim based on facts revealed in the 2011 Report. Legal challenges to § 851 enhancements based on disparity or disproportionality are not novel… We conclude that Mike did not exercise due diligence in discovering the facts set forth in the Commission’s 2011 Report.”

Ironically, Mike could not have gotten the data from the USSC through a Freedom of Information Act request, because the Commission is not covered by FOIA. But if he had at least tried to do so, he might have been able to explain why he had acted with diligence, and thus been able to make a § 2255(f)(4) showing.

Ingram v. United States, 2019 U.S. App. LEXIS 23225 (8th Cir. Aug. 2, 2019)

– Thomas L. Root

4th Circuit Holds Plea Agreement Waiver Does Not Block Johnson/Dimaya/Davis Claims – Update for August 5, 2019

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DODGING THE WAIVER

190805myopiaA type of myopia common among federal defendants filing post-conviction § 2255 motions is understandable: people get so focused on their substantive issues – the prosecutor lied, the defense attorney slept, the judge was inept – that no one ever asks whether some arcane issue of procedure will defeat his or her claim before the merits are ever reached.

One of the first procedural issues I usually worry about is the waiver. Face it, 97% of federal inmates plead guilty, and almost all of them sign some kind of plea agreement. And almost all plea agreements include a waiver section, in which a defendant waives the right to appeal or to collaterally attack (as in, file a § 2255 motion) the conviction or sentence. There is always an exception in the case of prosecutorial misconduct or ineffective assistance of counsel, but what happens when something like Johnson v. United States or Sessions v. Dimaya or United States v. Davis comes along?

Randall Cornette, convicted of a felon-in-possession charge, challenged his Armed Career Criminal Act sentence. The trial court had relied on some old Georgia burglaries that Randy said could no longer count under Johnson. The government replied that Randy had signed a plea agreement waiver that prevented him from raising a Johnson issue.Waivers160215

Last week, the 4th Circuit ruled that a plea agreement waiver does not prevent a defendant from taking advantage of Supreme Court decisions like Johnson or Davis. The appeals court ruled that an otherwise valid appeal waiver did not bar Randy from now arguing that by imposing a sentence under the unconstitutional residual clause of the ACCA, the district court exceeded its statutory authority to sentence him.

The Court said that an appeal waiver does not preclude a defendant from challenging a sentence “based on a constitutionally impermissible factor” or “a sentence imposed in excess of the maximum penalty provided by statute.” Randy’s sentence challenge is based on the assertion that the district court did not have the statutory authority to impose the sentence under to the residual clause. Because Johnson was made retroactive by the Supreme Court, the Circuit said, “all sentences rendered under the residual clause became unconstitutional. Therefore, Randy’s sentence was imposed in excess of the maximum penalty provided by ACCA.”

The 4th said that this doesn’t mean that a non-retroactive change in the law, like Booker or Alleyne, can be challenged where there is a collateral-attack waiver. But where a Supreme Court case (like Davis, for instance) “announces a substantive rule that applies retroactively, the district court is now deemed to have had no statutory authority to impose [a] sentence,” and a court may review a sentencing challenge “notwithstanding the appeal waiver.”

United States v. Cornette, 2019 U.S. App. LEXIS 22554 (4th Cir. July 30, 2019)

– Thomas L. Root

Supreme Court Davis Decision Declared Retroactive By 11th Circuit – Update for July 29, 2019

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11th CIRCUIT HOLDS DAVIS TO BE RETROACTIVE

I have been asked a lot in the last month whether the Supreme Court decision in United States v. Davis would apply retroactively to convictions for using or carrying a gun during a violent or drug crime (violation of 18 U.S.C. § 924(c)) that were already final when the Davis decision was handed down June 24th. While I have always been sure that Davis ought to be retroactive, I was never completely confident that the courts of appeal would agree with me.

retro190729Last Tuesday, the 11th Circuit surprised me in a good way. Faced with a motion for permission to file a second-or-successive § 2255 motion (known as a “2244” because the request is filed under 28 USC § 2244) by a defendant whose § 924(c) conviction was based on a solicitation-to-murder count (and thus was invalid under Davis), the Circuit ruled that Davis is retroactive.

This retroactivity rule is important, because it opens the door for people who have filed 2255 motions already to get permission to file a second one challenging their § 924(c) convictions under the Davis ruling. Davis, you may recall, (1) affirmed that the categorical approach to judging whether a prior conviction was a crime of violence is the appropriate standard, rejecting several circuits’ claims that in a § 924(c) review, the court should look at a defendant’s actual conduct; (2) effectively ruled that conspiracies to commit crimes of violence (as well as solicitations and, quite possibly, attempts and accessories charges) are not crimes of violence; and (3) ruled that the § 924(c) residual clause, like the Armed Career Criminal Act and 18 USC § 16(b) residual clauses, was unconstitutionally vague.

violence160110The 11th Circuit held that Davis met all of the requirements for retroactivity. Davis announced a new substantive rule, because just as Johnson narrowed the scope of the ACCA, Davis narrowed the scope of 924(c) by interpreting the term “crime of violence.” And, the Circuit said, the rule announced in Davis is “new” because it extended Johnson and Dimaya to a new statute and context. “The Supreme Court in Davis restricted for the first time the class of persons § 924(c) could punish,” the appeals court said, “and, thus, the government’s ability to impose punishments on defendants under that statute. Moreover, the Supreme Court’s grant of certiorari in Davis to resolve the circuit split on whether § 924(c)(3)(B) was unconstitutionally vague illustrates that the rule in Davis was not necessarily dictated by precedent or ‘apparent to all reasonable jurists’.”

While the Supreme Court has not held Davis to be retroactive, the 11th said, “the Supreme Court holdings in “multiple cases… necessarily dictates retroactivity of the new rule.” Davis announced a new substantive rule, the 11th held, “and Welch tells us that a new rule such as the one announced in Davis applies retroactively to criminal cases that became final before the new substantive rule was announced.”

Two days later, the 11th Circuit held that another defendant would be allowed to pursue his 924(c) claims under Davis, despite the fact he had tried and failed to do the same under Johnson and Dimaya. The fact that he had previously lost the same issue would not preclude a successive 2255, despite the fact that 11th Circuit precedent in In re Baptiste suggested otherwise. The court said the defendant’s “proposed Davis claim is not barred under In re Baptiste (concluding that a repeat § 2255 claim that was raised and rejected in a prior successive application is barred by [28 USC] 2244(b)(1)).” Although the rationale underlying Johnson and Dimaya on which the defendant’s prior successive applications were based is the same rationale that underlies Davis, his prior losses do not bar him raising the Johnson/Dimaya claim again, because “Davis announced a new substantive rule of constitutional law in its own right, separate and apart from (albeit primarily based on) Johnson and Dimaya.”

knuckles190729Other courts of appeal will have to weigh in on Davis retroactivity for inmates seeking 2244 permission in those circuits, but the 11th position, laid out in a detailed and well-reasoned published opinion, will wield substantial influence on those courts. The 11th, after, is notoriously stingy in granting 2244 motions (it was the circuit that turned down Greg Welch, whose case went on to establish that Johnson was retroactive in Welch v. United States), as well as the appeals court whose Ovalles opinion was directly contrary to what the Supreme Court decided in Davis). That this Circuit has articulated a basis for Davis retroactivity so soon after having its figurative knuckles rapped is a welcome surprise.

In re Hammoud, 2019 U.S. App. LEXIS 21950 (11th Cir. July 23, 2019)

In re Cannon, 2019 U.S. App. LEXIS 22238 (11th Cir. July 25. 2019)

– Thomas L. Root

Dance With The Girl Who Brung You – Update for April 30, 2019

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GOVERNMENT DENIED A MULLIGAN IN § 2255 ARGUMENT

A crusty old judge I once knew liked to warn attorneys they had to “dance with the girl who brung” them. That is, if they made a claim in their opening statement, they had to stick with that claim, and not try to slip in a new theory when the old one started looking weak.

mulligan190430The 4th Circuit told the government the same thing last week. Antwan Winbush filed a post-conviction motion under 28 U.S.C. § 2255 that argued his attorney had been ineffective at his sentencing. Specifically, the court attributed two prior drug convictions to Antwan, making him a “career offender” under the Sentencing Guidelines, and exposing him to a dramatically potential higher sentencing range. Antwan arued his lawyer should have noticed that one of the two priors was inapplicable.

The government admitted Antwan was right about one of the drug prior convictions not counting for “career offender” (because the conduct it addressed was drug possession, not drug trafficking). That did not matter, the government said, because Antwan was not prejudiced. It seems Antwan also had a prior conviction for an Ohio robbery, and that prior offense would have counted to make him a Guidelines “career offender” even without the defective prior drug conviction.

Antwan protested that neither the U.S. Attorney nor the court identified the robbery conviction as a “career offender” qualifier at sentencing. Instead, both relied only on the two prior drug convictions.

The district court said it did not matter which convictions the government brought to the dance back at sentencing, because it was free to watusi with the heretofore-unidentified robbery conviction now. But last week, the 4th Circuit disagreed.

The Circuit, noting that Antwan’s presentence report “did not designate his robbery conviction as a predicate conviction for the career offender designation,” ruled that as a result, Antwan “was given no notice at sentencing that his robbery conviction could be utilized as a predicate conviction for a career offender enhancement.”

uglygirl190430The government “has already been given one full and fair opportunity to offer whatever support for the career offender enhancement it could assemble,” the Court held. Because the government did not identify the robbery as a conviction on which it intended to rely to support a Guidelines “career offender” enhancement at sentencing, it cannot decide to do so later when it finds it convenient, because one of the convictions it did rely on to support the career offender designation ends up not counting.

“To hold otherwise,” the 4th ruled, “would be to allow the government to change its position regarding which convictions support the enhancement now that one of its original choices cannot do the job. Worse yet, allowing the government to change positions for the first time on collateral review would unfairly deprive the defendant of an adequate opportunity to respond to predicate offense designations, especially given the fact that a defendant has the burden of proof at the 2255 stage but no right to counsel.”

You dance with the girl who brung you.

United States v. Winbush, 2019 U.S. App. LEXIS 11853 (4th Cir. Apr. 23, 2019)

– Thomas L. Root

Buyer’s Remorse Wins Confused Defendant a Hearing – Update for April 17, 2019

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8TH CIRCUIT FLESHES OUT STANDARD FOR CHANGE-OF-PLEA INEFFECTIVENESS

One of the most-argued issues in post-conviction motions under 28 USC § 2255 is that defense counsel was ineffective. Unsurprisingly, because 94% or so of all federal criminal cases are resolved with a plea agreement and guilty plea, the most popular claim is “buyer’s remorse,” that is, that the defendant would have never pled guilty if his or her lawyer had only properly advised the accused prior to entering into the plea agreement.

buyersremorse190417I have some sympathy for the claim, but not for the obvious reason. Defense attorneys usually are right that the defendant should take a plea, and almost always, they have gotten their client the best deal possible from a chary United States Attorney. The real problems are two-fold: first, the U.S. Attorney has a script used on plea deals, and the script allows for very little negotiating room by the defendant (who, anyway, is totally outgunned by the government’s thundering herd of lawyers, legal assistants, case agents and factotums). Second, the defendant is almost always unschooled in the finer points of federal criminal law and procedure, and is under extraordinary stress as he or she bargains away in freedom, reputation and property to a rapacious and unblinking adversary. That makes misunderstanding and confusion almost inevitable.

By the time the defendant is in front of the judge for a Rule 11 guilty-plea hearing, he or she is committed to the plea deal, and is almost incapable of answering the many questions asked by the judge in any manner other than what the question anticipates and the judge expects.

It’s no wonder that a 2255 movant’s recall of the advice that counsel provided and the answers given at the Rule 11 hearing ends up being warped: it probably seems to the defendant that a different person altogether signed the plea agreement and stood up at the plea hearing.

notlistening190417But arguing that counsel poorly advised a defendant to take a plea and how to respond to the judge at a plea hearing has always been tough. Everyone knows that a defendant listens to his or her lawyer, especially when counsel is the closest thing to a friend a defendant can find in the courtroom. Besides, no one really listens to the judge at the change-of-plea hearing. Yet the defendant’s rote answers to the judge at the guilty plea hearing are invariably used by the court to bludgeon any defendant who later argues about attorney misadvice in a 2255 motion.

On top of that, a defendant has to show that if counsel had advised him or her properly, he or she would have gone to trial. For years, the courts required that the defendant show that going to trial would have been reasonable, regardless of what a defendant may have really intended.

Things improved slightly several years ago with the Supreme decision in Lee v. United States. There, a Korean restaurant owner argued that if his lawyer had told him that deportation was certain, he would have gone to trial even though he was bound to lose. The lower courts denied his 2255 on the grounds that no reasonable person would have changed his mind on the plea, because Lee had no chance of winning. The Supreme Court, however, held that courts could “look to contemporaneous evidence to substantiate a defendant’s expressed preferences,” even where those preferences were objectively unreasonable.

Dilang Dat pled guilty to robbery, but only after rejecting plea agreements that said he would be deported. The agreement he finally signed said “there are or may be collateral consequences to any conviction to include but not limited to immigration.” He agreed to plead based on counsel’s assurance his immigration status would be unaffected. Alas, counsel was terribly wrong, something Dilang learned after his conviction, when his mother’s attempt to renew his green card was denied.

The district court denied Dilang’s 2255 without a hearing, finding that he was warned in his plea agreement there could be immigration consequences. That printed warning was enough, the judge said, to undo his lawyer’s bad advice.

badadvice170201Last week, the 8th Circuit reversed. It observed that Dilang’s background supported his assertion that he was focused on remaining in the country. At the change-of-plea hearing, counsel noted Dilang’s request for prison placement close to his family, and observed that he had no ties to another country. Although Dilang faced around five more years in prison from a conviction on all counts at trial (if two counts had not been dismissed as part of the plea agreement), “deportation is a particularly severe penalty,” the Circuit opined, “which may be of greater concern to a convicted alien than any potential jail sentence.”

Nor did the language in the plea agreement undermine Dilang’s claim. The language said only that he could face deportation, not that he would do so. “A general and equivocal admonishment that defendant’s plea could lead to deportation,” the 8th said, “was insufficient to correct counsel’s affirmative misadvice that [defendant’s] crime was not categorically a deportable offense.”

The Court of Appeals sent the 2255 motion back to the district court for an evidentiary hearing.

Dat v. United States, 2019 U.S. App. LEXIS 10732 (8th Cir. Apr. 11, 2019)

– Thomas L. Root

Supreme Court Lets Wheeler Stand, Whiffs on Chance to Resolve Circuit Split – Update for March 25, 2019

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SUPREME COURT REFUSES TO WADE INTO 2241 DEBATE

Last Monday’s Supreme Court orders list carried good news for  people waiting on a certiorari decision on the 4th Circuit’s United States v. Wheeler case.  But for those who would like to see the 2255(e) debate put to bed, the day brought nothing but bad news.

deniedcertB170925Everyone convicted of a federal crime has the right to petition for a writ of habeas corpus, a procedure intended to protect defendants from denial of their constitutional rights. Traditional habeas corpus is governed by a statute, 28 USC § 2241. However, Congress has directed federal defendants seeking to challenge their convictions or sentences to a special habeas corpus statute, 28 USC § 2255, which spells out what kind of showing must be made in order to obtain relief, and when and how that showing is permitted. To prevent abuse of the 2255 procedure, the law prevents any defendant from filing more than one such motion except under the most restricted of circumstances.

But not all circumstances can be foreseen. For that reason, Congress included 28 USC § 2255(e), which provides that a federal defendant may use the classic route, 28 USC § 2241, when it  “appears that the remedy by [2255] motion is inadequate or ineffective to test the legality of his detention.” This subsection has become known as the “savings clause.” 

gunknot181009A number of years ago, Gerald Wheeler was convicted of federal drug trafficking and gun charges. His drug and gun possession sentences were increased dramatically because he had a prior North Carolina drug felony.


Except, due to a unique sentencing law on North Carolina’s books at the time, Gerry’s state drug conviction really was not a felony, because the maximum sentence he could have gotten was undera year. The 4th Circuit had gotten that wrong in hundreds of cases, but finally set it right in 2011 with United States v. Simmons, which held that hundreds of state convictions like Gerry’s really weren’t felonies after all. But Simmons came too late for Gerry, whose 2255 motion had already been heard and denied.  Believing that the “safety clause” was intended for this kind of situation, Gerry filed a traditional § 2241 habeas corpus petition. Up to this point, the “savings clause” had been held to apply only where a change in statutory interpretation (like Simmons) resulted in the petitioner being actually innocent of a criminal offense. Gerry was not claiming that. Instead, he said he was actually innocent of the sentence, not of the underlying conviction. The district court said that kind of actual innocence didn’t count, and denied Gerry’s motion.

In a big victory for defendants, the 4th Circuit reversed, holding for the first time that the § 2255(e) savings clause could be invoked if at the time a defendant was sentenced, precedent made the sentence legal, but after the prisoner’s appeal and § 2255 motion, the settled substantive law changed and was held to be retroactive.

The government did not much like the 4th Circuit’s decision, and thus petitioned the Supreme Court to review Wheeler. Typically, SCOTUS takes government requests for certiorari very seriously, but last Monday the Court refused the government’s request.

safetyvalve190325Wheeler is at last final, which is great news for people who happen to be locked up in prisons located in the 4th Circuit. If you are in other circuits, your prospects may be dimmer. If you’re housed in the 10th or 11th Circuit – neither of which believes that the § 2255(e) “savings clause” has any meaning whatsoever – you are just plain out of luck.

The not-so-great news: Three other requests for review of the “safety clause” were also denied last week, Lewis v. English, Delancy v. Pastrana, and Dusenbery v. Holt. Lewis (10th Cir.) and Delancy (11th Cir.) argued that those Circuits are wrong, and a prisoner should be allowed to file a § 2241 petition to raise arguments that were foreclosed by binding circuit precedent at the time of his or her original § 2255 motion, but that are meritorious in light of a subsequent decision overturning that precedent. Dusenbery (3rd Cir.) argued that a § 2241 petition filed under the 2255(e) savings clause should be able to raise actual innocence of sentence (like Wheeler successfully did) as well as innocence of conviction.

All of the petitions were relisted (reconsidered by the Justices) multiple times before being denied. The website SCOTUSBlog noted of the Wheeler denial that “it’s somewhat unexpected for the court to reject a government petition on an obviously recurring issue. But the government in Wheeler and the petitioner in Lewis each claimed that their case was the only good vehicle, and apparently they succeeded in persuading the court that all the vehicles were bad.”

The Supreme Court looks for a case with facts and arguments that make it well suited for a decision that will sweep broadly. It apparently decided that none of the four met that standard. The issue will continue to arise, and I think the Court will eventually take it up. But for now, people needing the relief that only a § 2241 petition can provide will be victims of geography.

United States v. Wheeler, Case No. 18-420 (cert. denied Mar 18)

Lewis v. English, Case No. 18-292 (cert. denied Mar 18)

Delancy v. Pastrana, Case No. 18-5772 (cert. denied Mar 18)

Dusenbery v. Holt, Case No. 18-5781 (cert. denied Mar 18)

SCOTUSBlog.com, Relist Watch (Mar. 20)

– Thomas L. Root