Tag Archives: 2255

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

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

Justice Must be Timely, Or Not At All – Update for February 14, 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.

CORAM NOBIS – HE WHO HESITATES…

Oliver Wendell Holmes famously lectured a new lawyer from the bench, after the tyro attorney started arguing about justice, “This is court of law, young man, not a court of justice.”

lawnotjustice190213Well, it’s an imperfect world, but over the centuries, the common-law system developed a body of law authorizing writs – called “extraordinary writs” because they were, indeed, out of the ordinary – each tailored to address some injustice (sorry, Ollie) that the strictures of the law otherwise overlooked. The most famous is the writ of habeas corpus, an order from the court to a jailer to produce the prisoner before it and show by what authority the poor fellow was being detained. Injunctions, orders that a certain activity be stopped, likewise are extraordinary writs, as are their lesser-known prerogative-writ cousins, writs of prohibition, writs of quo warranto, and writs of mandamus. Then, there are the real unknowns, such as the writ of audita querala or writ of error coram nobis.

Many courts have limited the use of extraordinary writs, but not the Feds: the All Writs Act, passed as part of the Judiciary Act of 1789, authorizes federal courts to “issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.”

secondbiteapple190213Federal prisoners, who as a group sat in the back of the room during high school government class, discover the All Writs Act like travelers in the desert stumbling on an oasis of cool water and verdant fruit trees. With post-conviction petitions seemingly limited to a single 28 USC 2255 motion except in the most restricted of circumstances, inmates seeking a second or late-filed bite of the apple often consider a petition for a writ of error coram nobis to be a novel end run around the ban on multiple 2255s may want to look at what happened to Reuben Delhorno.

This is largely because newbies in the law library have forgotten or never knew what my wife calls the “Greater Minds Than Mine” rule. Any novel dodge or loophole you may discover in the law has already been found, beaten like a rented mule, and usually plugged by one court of aother. Greater minds than yours (or mine) have stumbled on your discovery a long time before you (or I) did.

rentedmule190213Reuben filed a petition for writ of error coram nobis, seeking to get out of a plea agreement for a conviction on which he had already served his sentence, in order to avoid deportation.

Coram nobis is a common-law writ available to correct errors of fact and law in criminal cases, but only when the movant is no longer in custody, and (1) the error is of the most fundamental character so as to render the criminal conviction invalid; (2) there are ‘sound reasons’ for the defendant’s ‘failure to seek earlier relief’; and (3) the defendant continues to suffer from his conviction.

Generally, a petition for writ of error coram nobis cannot be used for a second bite of the 2255 apple. As one court put it, given the broad purpose of the Antiterrorism and Effective Death Penalty Act, it would be “astounding if the ‘second or successive’ restrictions on 2255 motions could be rendered wholly ineffective by the simple ruse of labeling future § 2255 motions as petitions for writs of coram nobis.”

But Reuben did not do that. Instead, he sat on his hands while locked up, letting the deadline to file a 2255 pass. Only after he finished his term and found that ICE was waiting to hustle him back to Mexico did he wake up to the errors in his criminal proceeding.

At his change of plea hearing, Reuben said that he was born in Mexico but no one mentioned the immigration consequences of a guilty plea, even though the hearing took place more than a year after the Supreme Court held in Padilla v. Kentucky that a defense lawyer provided ineffective assistance by failing to advise the client that a guilty plea would result in automatic deportation.

nothappen181016Reuben complained his attorney’s representation was unreasonable, because he never discussed with Reuben the immigration consequences of conviction. The Court was “troubled that apparently neither his counsel, the prosecutor, nor the court raised the issue of the mandatory immigration consequences with him.” However, it found that Reuben lacked evidence that he would not have pled guilty even if he had been told about deportation.

But Reuben’s biggest problem was that he could not explain why he waited five years to raise the issue, instead of on appeal or in a 2255 motion. “A person seeking a writ of coram nobis,” the Court ruled, “must offer sound reasons for his failure to seek relief earlier.” Reuben could not, and thus had his coram nobis dismissed.

United States v. Delhorno, 2019 U.S. App. LEXIS 3977 (7th Cir. Feb. 8, 2019)

– Thomas L. Root

Loopholes Are Like the Tooth Fairy – Update for January 22, 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.

CONFUSING WISHES FOR FACTS

I had the unpleasant task last week of telling a parent that her daughter had no procedural means of attacking her 6-year old conviction and sentence. The mother replied, ”But there has to be a loophole! There’s always a loophole!”

toothfairy190122Loopholes are like the Tooth Fairy. They’re fun to believe in, and pretending they exist is harmless enough. But you don’t want to factor the Tooth Fairy’s largesse into your retirement planning for one simple, very good reason. The Tooth Fairy doesn’t exist.

Likewise, contrary to the exclamation of my inmate’s mother, there does NOT have to be a loophole. Not confusing wishes for facts was the hard lesson Jason Lund learned last week.

In 2008, Jason got an enhanced sentence under 21 USC 841(b)(1)(A) because a death resulted from use of the drugs he was convicted of selling. But in 2014, the Supreme Court held in Burrage v. United States that finding a defendant guilty of the “death results” penalty requires proof that the harm would not have occurred in the absence of – that is, but for – the defendant’s conduct.

Jason filed a 2255 motion in 2016. But 28 USC 2255(f) sets strict deadlines for filing the motion, in this case one year from the date Burrage was decided or a year after discovering new evidence. Jason was well beyond both deadlines. But in 2013, the Supreme Court ruled in McQuiggin v. Perkins that if an inmate can show he or she is actually innocent, it “serves as a gateway through which a petitioner may pass whether the impediment is a procedural bar… or… expiration of the statute of limitations. Jason argued that the Burrage ruling made him actually innocent of the enhanced sentence, so his untimely filing did not matter.

Some of the people who say this really are. For others, it's just procedural...
Some of the people who say this really are. For others, it’s just procedural…

The actual innocence gateway exception is “grounded in the ‘equitable discretion’ of habeas courts to see that federal constitutional errors do not result” in innocent people being imprisoned. To establish actual innocence, a movant must show that it is more likely than not that no reasonable juror would have found him or her guilty beyond a reasonable doubt, if the new evidence or new legal holding were applied.

Last week, the 7th Circuit ruled that Jason was too late. It held that the actual innocence exception certainly does apply where a petitioner has new evidence, like DNA evidence, that proves him innocent. But “actual innocence” cannot be used to excuse untimely filing where a subsequent change to the scope of a law renders the conduct for which a movant was convicted to be no longer criminal.

The problem, the 7th said, was that Jason was trying to use Burrage both as his claim for actual innocence and his claim for relief on the merits. A petitioner’s actual innocence claim and claim for relief on the merits cannot be the same. If it could, “it would completely undermine the statute of limitations for bringing initial 2255 motions within one year from the date a new right is recognized by the Supreme Court.”

gateway190122The Court explained the actual innocence exception is merely a gateway through which a court can consider a petitioner’s otherwise barred claims on their merits. The whole idea is that a petitioner will have underlying claims separate from the actual innocence claim, and will use the actual innocence claim solely to excluse an untimely filing. The Supreme Court has not recognized a petitioner’s right to habeas relief based on a stand-alone claim of actual innocence.

The point of the exception, the Circuit said, is to ensure that federal constitutional errors do not result in innocent people being locked up. This suggests that the underlying claim must be a constitutional claim, rather than a statutory claim like Burrage.

Lund v. United States, 2019 U.S. App. LEXIS 1603 (7th Cir. Jan. 17,  2019)

– Thomas L. Root

5th Circuit Pummels § 2255 Petitioner in Pair of Cases – Update for October 30, 2018

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5th CIRCUIT DEALS TWO SETBACKS TO 2255 PROCEDURE

The 5th Circuit handed down a pair of 2255 procedural decisions last week that complicate matters for inmates seeking post-conviction relief in that circuit.

siegfried181101Every inmate law library denizen knows that if the district court denies a 2255, the Federal Rules of Civil Procedure let the defendant file a motion to alter the judgment under Federal Rule of Civil Procedure 59(e). It seems like a free bite of the apple: you get to reargue your position, and a timely-filed 59(e) stops the clock running on the appeal deadline.

But, it turns out, a 59(e) motion is not free of cost. Andre McDaniels found that out last week. After the district court denied his 2255, which was based on ineffectiveness of counsel, Andre filed a Rule 59(e) motion that argued the court had erred in refusing to grant an evidentiary hearing. That motion also was denied. Andre got a certificate of appealability from the 5th Circuit, but the government complained the Circuit lacked jurisdiction to hear the appeal.

The Supreme Court’s 2005 Gonzalez v. Crosby decision held that Rule 60(b) motions filed in 2255 cases seeking “to add a new ground for relief” or “attack the federal court’s previous resolution of a claim on the merits” is a second-or-successive 2255 petition. A motion that merely targets a procedural defect in the integrity of the federal habeas proceedings, however, remains a bona fide Rule 60 motion over which a district court has jurisdiction.

Circuit courts are applying Gonzalez to Rule 59 motions filed in 2255 the allegations that he had made in the 2255 motion, and complained the district court had erred in dismissing the motion without an evidentiary hearing. The 5th Circuit ruled that the district court lacked jurisdiction to hear Andre’s substantive claims under the 5th and 6th Amendments. Because they attacked the district court’s previous ruling on the merits, they constituted a successive habeas application.

However, his claim that the district court should have conducted an evidentiary hearing was not an attack on the decision on the merits, but rather on the proper procedure used by the district court in the 2255 proceeding. Andre was able to go forward on that issue.

In a separate decision, the 5th Circuit weighed in on a circuit split on the meaning of 28 USC 2244(d)(1)(D). That statute permits second-and-successive 2255 motions in some cases, including newly discovered evidence. The 5th Circuit held that to show there is newly-discovered evidence, a defendant must “establish that the affidavits were unavailable to trial counsel at the time of trial.” A number of other circuits hold only that the evidence must be “reliable evidence that was available but not presented at trial.”

grasp181101The Circuit ruled that movant Jamal Hancock failed to show his evidence was newly discovered, because “it was always within the reach of petitioner’s personal knowledge or reasonable investigation.” The Court admitted it had not previously “decided what affirmatively constitutes ‘new’ evidence,” but it has “explained what does not.” Jamal’s affidavits did not show the witness affidavits were unavailable to his attorney at the time of trial, and therefore the Court held that Jamal had offered no “new” evidence.

United States v. McDaniels, Case No. 16-20508 (5th Cir., Oct. 26, 2018)

United States v. Hancock, Case No. 16-20662 (5th Cir. Oct. 23, 2018)

– Thomas L. Root

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6th Circuit Make Showing Prejudice on Botched Plea Deals Easier – Update for October 11, 2018

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6TH CIRCUIT EASES PREJUDICE SHOWING REQUIRED FOR INEFFECTIVE ASSISTANCE OF COUNSEL ON PLEA AGREEMENT

plea161116One of the biggest hurdles facing an inmate filing a post-conviction motion under 28 USC 2255 who argues his lawyer gave bad advice on taking a plea deal is proving that he would have gone to trial but for the bad advice. That is the old Hill v. Lockhart prejudice standard for ineffective plea advice. The problem is that often, there is no way the defendant would have gone to trial under any circumstances, but he would have tried to negotiate a different plea deal or even entered a blind “straight-up” guilty plea without a plea deal at all.

Until recently, unless you could show you would have gone to trial but for the bad advice, you could not win a 2255 ineffective plea claim. Last week, the 6th Circuit has joined five other circuits in holding that a 2255 defendant may demonstrate prejudice if he can show that, had he been properly advised, he would have bargained for a more favorable plea.

Daynel Rodriguez-Penton argued in a 28 USC 2255 motion that his lawyer failed to warn him that pleading guilty would get him deported. The district court denied his motion, relying on the Hill v. Lockhart prejudice standard.

The 6th Circuit reversed, holding that “the legal landscape for such claims has changed in material ways since Hill.” In Missouri v. Frye, the Supreme Court explained that “Hill applies in the context in which it arose. Hill does not, however, provide the sole means for demonstrating prejudice arising from the deficient performance of counsel during plea negotiations.” The Frye court ruled that petitioners who allege ineffective assistance of counsel during the plea process may satisfy the prejudice prong even without a showing that they would have gone to trial were it not for counsel’s deficient performance.

prejudice181011The Circuit said last week that such a prejudice showing may be made in different ways, such as by identifying similar plea agreements reached by others charged with similar crimes, by showing that the petitioner would have gone to trial, or by proving his decision-making process would somehow have been different. What is necessary, the Court said, is that, “no matter the route he takes, [the defendant] must still end up at the same place: he must present evidence sufficient to undermine confidence in the outcome of the plea-negotiation process.”

Daynel will now get a chance to prove he could have cut a plea agreement that would have kept him in the US.

Rodriguez-Penton v. United States, Case No. 15-6306 (6th Cir. Oct. 2, 2018)

– Thomas L. Root

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