Tag Archives: 2255

Justice Must be Timely, Or Not At All – Update for February 14, 2019

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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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Pay Your Money and Take Your Chance on Rule 11(c)(1)(C) Sentence – Update for October 3, 2018

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VACATED STATE CONVICTION DOES NOT LEAD TO LOWER RULE 11(c)(1)(C) SENTENCE

Brian Hoskins, a man with two prior felony drug convictions, made a deal under Federal Rule of Criminal Procedure 11(c)(1)(C) to plead to 112 months on a federal drug trafficking case. A so-called (c)(1)(C) plea specifies a precise sentence which the court may accept or reject, but not change. The (c)(1)(C) deal brought Brian’s sentence in way below what his Sentencing Guidelines “career offender” status would have gotten him.

jailfree140410But after sentencing, Brian was able to get his Vermont drug felony conviction – one of the two prior convictions that qualified him as a “career offender” – set aside because his state lawyer had screwed up the plea. All of a sudden, he no longer qualified as a career offender, dramatically lowering his sentencing range. His  112-month plea no longer looked like such a good deal.

Brian filed a 28 USC 2255 motion, arguing that his Rule 11(c)(1)(C) plea should be set aside. The district court agreed, holding that his “now-vacated state conviction clearly led to a significant enhancement of his sentence.” The district judge cut Brian’s sentence to 86 months, which Brian has now completed.

Not so fast, Brian. Last week, the 2nd Circuit upheld a government appeal of the 2255 grant. Noting that a non-constitutional error – like the state court conviction that had now gone away – can be recognized on a 2255 motion only if “the claimed error constituted ‘a fundamental defect which inherently results in a complete miscarriage of justice.’”

Here, the Circuit said, there was no miscarriage. Brian’s 112-month deal fell within his non-career offender sentencing range of 100-125 months. What’s more, the 2nd said, “Sec. 2255 does not encompass all claimed errors in conviction and sentencing.” Id. at 185. Rather, those instances where an error in conviction or sentencing rise to the level to be a cognizable basis for a collateral attack are reserved for when the “error of fact or law is of the fundamental character that renders the entire proceeding irregular and invalid… A “later development” that “did not affect the lawfulness of the judgment itself—then or now,” is not enough to vacate the sentence imposed.

The appellate court said Brian’s plea deal agreed he was a career offender, but applied a sentencing range well below it. The deal also let Brian avoid a superseding indictment with enhanced mandatory minimum sentence of ten years. “Together, these circumstances show that, even with a career offender enhancement applied to calculate Hoskins’s Guidelines range at 155 to 181 months, in securing agreement to a sentence of 112 months, Hoskins left the bargaining table with a deal that secured him real benefit, hardly indicating a a miscarriage of justice.”

welcomeback181003Second, because the Guidelines are advisory, the district court necessarily had to make an individualized determination that the 112-month sentence was right for Brian. The district court obviously did so, the 2nd Circuit said, and the fact the 112-month deal was in the middle of his non-career offender range made it clear Brian’s sentence was no miscarriage of justice.

The 2255 grant was reversed, and Brian will have to return to prison.

United States v. Hoskins, Case No. 17-70-cr (2nd Cir. Sept. 26, 2018)

– Thomas L. Root

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When a Whacko Defense Theory Is No Defense At All – Update for September 21, 2018

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3RD CIRCUIT RULES PREJUDICE NEED NOT BE SHOWN IN ATTORNEY INEFFECTIVENESS CASE

Most post-conviction motions brought under 28 USC 2254 or 2255 fail, especially the ones that claim that the defendant’s lawyer was ineffective. It is not that hard proving that the lawyer screwed up. That happens all the time. Instead, the problem is that the defendant has to show that if the lawyer had not messed up, there is a reasonable chance that things would have turned out different.

nuns170427This “prejudice” showing is what trips up most such motions. After all, if a busload of nuns passing by saw you run out of the bank with a sack of money and a gun, it is pretty tough to convince the court that you would have been acquitted if only your lawyer had called your mother to the stand to swear you were at home helping her bake cookies.

The problem with post-conviction prejudice showings is what a 3rd Circuit decision last week so noteworthy. In August 2006, Gary Moses shot Lawson Hunt in Philadelphia. Hearing the shots, Jeff Workman ran to the victim, saw Gary and opened fire at him. One of Jeff’s bullets ricocheted off a solid object and struck the victim in the chest, who died (but of which shot no one was sure).

Jeff and Gary were both charged with first-degree murder. Before trial, Jeff’s lawyer told him that he could not be convicted, because the victim was already dead when Jeff’s bullet hit him. At trial, Jeff’s lawyer built his whole case on that fact, arguing to the jury that Jeff could not be found guilty because you cannot murder a dead man.

Except it was not a fact. The only evidence in the case record showed that the victim was still alive when Jeff’s bullet struck him. Jeff’s lawyer ignored this inconvenient fact. The jury did not. It convicted Jeff but acquitted Gary.

The 3rd Circuit last week ruled that Jeff’s lawyer gave substandard assistance that pervaded the whole proceeding. But normally, that’s not enough. Jeff was obligated to prove that if his lawyer had advanced a defense based on the facts in the case, Jeff might have been acquitted. Now how can he prove something like that?

Killtodeath180921The 3rd Circuit said that under the circumstances of the case, Jeff didn’t need to show prejudice. In United States v. Cronic, the Supreme Court held back in 1984 that “if counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing, then there has been a denial of 6th Amendment rights that makes the adversary process itself presumptively unreliable.” Employing the Cronic holding, the 3rd Circuit ruled that Jeff need not show any prejudice:

Trial counsel’s failure to present a case on behalf of Workman or to modify his theory of the case to account for, if not rebut with evidence, the testimony offered by the Commonwealth, represents a near-total failure on the part of trial counsel to contest the Commonwealth’s case. This is not to say that the decisions not to call a rebuttal expert on a defendant’s behalf or to decline to call fact witnesses in a defendant’s case-in-chief are inherently unreasonable. Here, however, they clearly derived not from a legitimate and reasonable trial strategy but from trial counsel’s failure to understand what was happening in the case in which he was ostensibly participating. The Commonwealth sought to prove that Workman killed Hunt, but Workman’s counsel sought only to prove his chosen theory seemingly without regard for the facts in evidence. This deprived Workman of his 6th Amendment right to counsel.

Jeff will get a new trial, where exactly how the victim was killed to death will be addressed.

Workman v. Superintendent, Albion SCI, Case No. 16-1969 (3rd Cir. Sept. 11, 2018)

– Thomas L. Root

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Mandatory Guidelines ‘Johnson’ Challenge Neither Fish nor Foul – Update for September 13, 2018

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8TH CIRCUIT SLAMS PROCEDURAL DOOR ON A MANDATORY GUIDELINES JOHNSON CHALLENGE

In 2004, Jeff Russo was convicted of some drug and firearm offenses. The court sentenced him as a Guidelines career offender to 235 months for reasons. After Jeff was sentenced, the Supreme Court declared the Guidelines to be advisory in United States v. Booker, but that didn’t help Jeff, whose Guidelines were considered mandatory when they were imposed.

BettyWhiteACCA180503In 2015, the Supreme Court declared the residual clause of the Armed Career Criminal Act (ACCA) unconstitutionally vague in Johnson v. United States. Within a year of Johnson, Jeff filed a 28 USC 2255 motion, claiming district court relied on the residual clause of USSG 4B1.2(a)(2) to conclude that he was a Guidelines career offender. He argued that the residual clause in 4B1.2(a)(2) was unconstitutionally vague because it was almost identical to the clause held unconstitutional in Johnson. Jeff argued the court should vacate his sentence because it was calculated based on an unconstitutionally vague provision in the mandatory guidelines.

After he filed his motion, the Supreme Court held in Beckles v. United States, that the residual clause of 4B1.2(a)(2) in the post-Booker advisory guidelines is not subject to a vagueness challenge. Jeff argued that Beckles did not apply to the old mandatory Guidelines, because they “fix” a defendant’s sentence like the statute in Johnson, and are not flexible like the advisory guidelines ruled on in Beckles.

The district court dismissed Jeff’s motion as untimely, ruling that his motion was timely only if he filed it within a year of the date on which the right asserted was initially recognized by the Supreme Court. The district court said Jeff’s claimed right to be sentenced without the residual clause required “an extension, not an application, of the rule announced in Johnson.” Because the Supreme Court had not yet recognized the right that Jeff asserted, the district court ruled, his 2255 was untimely and should be thrown out.

vaguenes160516Last week, the 8th Circuit agreed with the district court. The Circuit admitted that it is “reasonably debatable whether Johnson’s holding regarding the ACCA extends to the former mandatory guidelines. However, it ruled, “the better view is that Beckles leaves open the question whether the mandatory guidelines are susceptible to vagueness challenges. Because the question remains open, and the answer is reasonably debatable, Johnson did not recognize the right Jeff was asserting, and he thus cannot benefit from the limitations period in Sec. 2255(f)(3).

Russo v. United States, Case No. 17-2424 (8th Cir. Sept. 6, 2018)

– Thomas L. Root

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3rd Circuit Lowers Procedural Hurdles for Actual Innocence Claims – Update for July 31, 2018

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3RD CIRCUIT HOLDS “ACTUAL INNOCENCE” EVIDENCE NEED NOT BE NEWLY DISCOVERED

The Supreme Court ruled in Schlup v. Delo that an actual innocence claim was an exception to habeas corpus “procedural default.” More recently, McQuiggin v. Perkins held that actual innocence excuses filing a habeas petition late. But courts of appeal have wrestled with whether the evidence of actual innocence has to be newly discovered, or just be evidence the jury never saw before.

Some of the people who say this really are...
Some of the people who say this really are...

The 3rd Circuit weighed in on the issue last week, joining the 1st, 2nd, 6th, 7th and 9th in holding that the evidence the petitioner relied on could be simply evidence the jury never saw before, even if it was evidence that the defendant knew about, but his lawyer never presented.

The 3rd said, “in a case where the underlying constitutional violation claimed is ineffective assistance of counsel premised on a failure to present evidence, a requirement that the new evidence be unknown to the defense at the time of trial would operate as a roadblock to the actual innocence gateway. To overcome this roadblock, we now hold that when a petitioner asserts ineffective assistance of counsel based on counsel’s failure to discover or present to the fact-finder the very exculpatory evidence that demonstrates his actual innocence, such evidence constitutes new evidence for purposes of the Schlup actual innocence gateway.”

Reeves v. Fayette SCI, Case No. 17-1043 (3rd Cir., July 23, 2018)

– Thomas L. Root

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Please Reverse Us, 11th Circuit Panel Tells Colleagues – Update for May 31, 2018

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11TH CIRCUIT PANEL BARS 2255 BRADY CLAIM, THEN ASKS EN BANC COURT TO REVERSE DECISION

rightwrong180531It’s pretty rare to see an appeals court beg for en banc review to reverse Circuit precedent, but a 3-judge panel of the 11th Circuit did that last week.

Gino Scott was convicted by a jury over a decade ago of drug trafficking. As do most defendants who lose jury trials, he filed a direct appeal and then a 2255 motion. He lost those. But a few years later, the government admitted to his trial court that it had Brady information about how its informant, whose testimony had help nail Gino, lied about his background on the stand.

Gino filed a second 2255 motion based on the newly-revealed information. But under 28 USC 2244, newly-discovered evidence will not allow a second-and-successive 2255 to go forward unless the new evidence would establish that no reasonable jury would have found the defendant guilty of the underlying offense.

The Supreme Court has held that not every second 2255 is a “second-and-successive” 2255 motion. Instead, “to determine whether an application is ‘second or successive,’ a court must look to the substance of the claim the application raises and decide whether the petitioner had a full and fair opportunity to raise the claim in the prior application.” But the 11th Circuit previously held in Tompkins v. Secretary, DOC that this Supreme Court holding did not apply to second 2255s raising Brady claims.

spengler180531In last week’s decision, the 11th Circuit panel argued that Tompkins is wrong, and that a newly-discovered Brady claim is not a second-and-successive 2255. But, for the uninitiated, a three-judge panel has no power to reverse a prior published circuit decision. Rather, unless a Supreme Court decision does so, only the Court sitting en banc has the right to abandon Circuit precedent.

For that reason, after Gino’s panel explained in great detail why Tompkins was wrong, it was nevertheless obligated to apply Tompkins to deny Gino’s claim anyway. Gino’s court ended with a plea to the other judges in the Circuit: “Supreme Court precedent, the nature of the right at stake here, and habeas corpus require a petitioner who has reasonably probably been convicted because the government failed to disclose material exculpatory evidence, to have a full and fair opportunity to obtain relief. For this reason, we urge our colleagues to rehear this case en banc and reevaluate the framework we established in Tompkins.”

Scott v. United States, Case No. 15-11377 (11th Cir. May 23, 2018)

– Thomas L. Root

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The ‘Hawaiian Good-Luck Sign’ – Update for May 24, 2018

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THE 6TH CIRCUIT’S REFRESHINGLY DEFERENTIAL APPROACH TO INEFFECTIVE ASSISTANCE

In an opinion piece in the Wall Street Journal yesterday, Richard Miniter urged President Trump to demand the return of the USS Pueblo, still held by North Korea after its 1968 illegal seizure in international waters. Miniter recalled Navy Commander Lloyd Bucher’s leading the crew to resist the North Koreans, who starved and tortured them. Once, the article recounted, Cmdr. Bucher instructed the crew to raise their middle fingers, a gesture he told his captors was a “Hawaiian good-luck sign.”

goodluckkorea180524

The change-of-plea pas de deux for defendant and judge in a federal criminal proceeding is dictated by Federal Rule of Criminal Procedure 11, and bears more than a passing resemblance to the staged photos and confessions so favored by despots such as Rocket Man, his daddy and grand-daddy.  The defendant is asked whether everything has been fully explained to him, whether he’s happy with his lawyer, whether anyone has promised him anything not in the plea agreement, whether he feels forced into pleading guilty… 

The truth, of course, is that the defendant is rarely happy with his lawyer right about then, usually has a slew of questions (many of which he does not yet know enough to ask), was told by counsel that all sorts of bad things would happen if he rejected the plea but that he would be treated gently if he took the deal… You get the idea. Deciding whether to accept a plea offer is a complex weighing of many factors: ironically, one of the least important, at least in the federal world, is whether the defendant is guilty of the offense.

Lawyers always tell their clients to not speak out of turn, let counsel do the talking, and – when asked any of the questions we described above – to answer affirmatively. Clients, fearful of the consequences of screwing up the plea deal after they had made the psychic investment needed to accede to it, follow counsel’s advice.

Of course, down the road the defendant may realize that counsel’s advice was not the gold-leaved diamond he believed it to be when he pled guilty or appeared for sentencing. Then, his defense attorney becomes a convincing witness for the government, and the defendant is, as Big Brother put in the iconic Apple Mac “1984” ad, buried with his own confusion.

appleadB180524Indeed, sometimes  it seems the only time a district court believes a defense attorney is when he or she provides an affidavit opposing a defendant’s 28 USC 2255 motion. Last week, however, the 6th Circuit threw the hammer on defendants’ behalf, reminding district courts that something more than mindless rejection of 2255 ineffective-assistance-of-counsel motions is required by the law.

Andy Martin pled guilty to a scheme to rip off a mentally disabled patient, and then of conspiring to kill the patient’s trustee in order to pull off the fraud. Before sentencing, an attorney representing him in a civil suit over the same situation convinced him to file a pleading in the civil case in which Andy denied any intent to defraud the patient.

At sentencing, the government produced the pleading from the civil case, and argued Andy should not get any credit for acceptance of responsibility. Andy’s lawyer argued that the) motion was out of character for Andy, that he filed it in a misguided attempt to mitigate the damage done to his family, and that he nevertheless demonstrated an acceptance of responsibility by pleading guilty and in his allocution at the sentencing hearing. The district court denied any points off for acceptance.

Andy filed a pro se 2255 motion arguing that his trial attorneys provided ineffective assistance of counsel by telling him to file the civil motion, causing him to lose the 3-point reduction for acceptance of responsibility. Andy said one of his lawyers insisted that Andy include language in the civil motion that was contradictory to his guilty plea statement, and, when Andy asked whether it would affect his criminal case, his attorneys “assured him it wouldn’t.” Andy included an affidavit from his wife and mother saying the same thing.

The Government filed an opposition, attaching affidavits from Andy’s trial lawyers, the fee agreement between Andy and his lawyer relating to the civil case, and a billing statement from his lawyer for the civil representation.

Andy’s court denied the motion, saying that “although he asserts that there are facts in dispute, Martin offers no proof beyond mere self-serving allegations that either counsel was ineffective.”

beautiful180524The 6th Circuit reversed, pointing out that Andy has presented far more than mere assertions of innocence. Andy’s 2255 motion contained specific factual allegations about the deficiencies of his attorneys’ advice and assistance relating to the civil motion. He alleged his lawyer agreed to advise him on the civil matter and that Andy paid him a $4000 retainer. He alleged that between his lawyer advised him to file the civil motion, reviewed his draft motion, insisted that he include language that contradicted his guilty plea, and assured him that it would not affect his criminal case or sentencing.

Because Andy presented factual allegations that supported his ineffectiveness claim, the Court said, he is entitled to an evidentiary hearing unless the allegations cannot be accepted as true because “they are contradicted by the record” or are “inherently incredible.” The court’s statement that Andy offered no proof beyond “mere self-serving allegations” failed to acknowledge that Andy supported his allegations with more than just his own words, but the words of others, too. Plus, a “self-serving” affidavit is not inherently incredible. Most affidavits are self-serving. In fact, in the 6th Circuit, a defendant’s statements alone are sufficient to support a finding that he would have accepted a plea offer.

A self-serving affidavit is not the same as a conclusory one. And the fact that Andy did not object at sentencing when the court snatched away the 3-level reduction does not mean much, either, the Court said. “It is unusual—and generally discouraged—for a represented defendant to make objections on his own, to make his own arguments outside allocution, or to otherwise interrupt the judge or lawyers at his sentencing hearing. Martin’s failure to independently object may simply reflect a client’s reasonable decision to rely on his attorneys and follow typical court procedure.” In other words, the defendant is not expected to employ the Hawaiian “good-luck” sign at change-of-plea or sentencing in order to protect his rights later.

appleadA180524The 6th’s decision is a refreshing explanation of all the reasons district courts often place unjustified reliance on what a defendant does or does not say at sentencing, and how the fact that a defendant’s 2255 motion does not prove a fact does not necessarily make the fact inherently incredible, and thus undeserving of a hearing.

United States v. Martin, Case No. 16-3864 (6th Cir. May 14, 2018)

– Thomas L. Root

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