Tag Archives: 2255

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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Law Books and Ouija Boards – Update for Wednesday, March 14, 2018

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2255 FILERS: “IAC” IS NOT “INEFFECTIVE ASSISTANCE OF CLAIRVOYANT”

ouija180315One of the most common arguments made in a post-conviction motion under 28 USC 2255 – which is the federal prisoner’s stand-in for a writ of habeas corpus attacking the conviction or sentence – is that the defendant’s trial attorney rendered ineffective assistance. The Supreme Court has held that the 6th Amendment guarantees the right to counsel in felony cases, as every schoolchild knows, but the Court has gone beyond that, holding that the right to counsel is meaningless without the right to effective counsel, that is, an attorney who does not screw things up by committing what amounts to malpractice.

Unsurprisingly, to a prisoner employing hindsight, the end justifies the means (in a way). We once had a guy call us up to say, “I got convicted. My lawyer was ineffective.” We asked what his lawyer had done that constituted ineffective assistance, to which the inmate impatiently replied, “You don’t get it. My lawyer was ineffective. I got convicted.” We again asked how the lawyer had been ineffective, before it dawned on us that the inmate was saying that the fact of his conviction was proof of his lawyer’s ineffectiveness.

dumblawyer180108It really doesn’t work that way, as defendant Tyrone Kirklin learned last week. Ty was convicted of a string of robberies in which the jury found he had sent accomplices into banks with handguns. The jury did not find that the accomplices brandished the guns, which would have made Ty’s 18 USC 924(c) mandatory consecutive sentence at least seven years instead of five. However, at sentencing the judge found that Ty’s sidekicks had indeed brandished the weapons, and that Ty had convinced them to do so. He raised Ty’s mandatory consecutive sentence to seven years.

At sentencing, Ty’s lawyer did not argue that the jury – not the judge – had to make the “brandishing” finding, and that the finding had to be made beyond a reasonable doubt. But during Ty’s appeal, the Supreme Court handed down Alleyne v. United States, reversing its 2002 holding in Harris v. United States and holding that facts that set or raised a mandatory minimum sentence – like facts that raised a maximum sentence – had to be found by a jury beyond a reasonable doubt.

Ty’s Court of Appeals considered Ty’s appeal in light of the new Alleyne holding, but said that because Ty had not raised the issue in the district court, the seven-year minimum sentence could be reviewed for “plain error.”  Doing so, the Circuit affirmed his sentence because the court’s error did not affect the “fairness, integrity, or public reputation of the proceedings… The evidence that the accomplices brandished the firearms and that Ty was responsible for their having done so was overwhelming. It seemed ‘highly unlikely’ that the jury would have found him guilty of aiding and abetting the use or carrying of the firearms without finding him equally responsible for the brandishing.”

So Ty filed a 2255 motion, arguing his lawyer was constitutionally ineffective for not raising the Alleyne issue at sentencing. Last week, the 7th Circuit turned him down. After all, the Circuit said, Harris was the law when Ty was sentenced. It was not until three months after sentencing that the Supreme Court granted certiorari in Alleyne, which first “signaled that the Supreme Court would consider whether to overrule Harris.”

crystal180315Ty argued his attorney’s performance was objectively unreasonable because the lawyer should have anticipated the possible overruling of Harris, and thus should have objected that the district court made the brandishing finding instead of the jury (to preserve the objection in case something later happened at SCOTUS). Ty said a competent lawyer would have realized that the Alleyne decision overruling Harris was imminent.

The 7th said Ty’s “claim of ineffective assistance depends on hindsight, which Strickland v. Washington warns against… With the benefit of hindsight, the overruling of Harris can too easily seem almost inevitable. But it was not inevitable to Justice Scalia, who concurred in both Apprendi and Harris and dissented in Alleyne. Nor was it inevitable or appropriate in the view of the other Justices who dissented in Alleyne. We have said repeatedly that the guarantee of effective assistance of counsel does not require an attorney to anticipate every eventual change in the law.”

Kirklin v. United States, Case No. 17-1056 (7th Cir.  Mar. 5, 2018)

– Thomas L. Root

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3rd Circuit Expands Second-and-Successive 2255 Rights – Update for September 12, 2017

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ZAX’S PATIENCE REWARDED IN THE 3RD CIRCUIT

We reported several weeks ago that the 4th Circuit had joined the 6th in dodging the lingering question of whether Johnson v. United States applied to mandatory Guidelines sentences. Now, the 3rd Circuit has stepped into the breach.

violence151213The Armed Career Criminal Act provides that people with three prior convictions for serious drug offenses or crimes of violence face stiff mandatory minimum sentences. A crime of violence is defined as one of four specific offenses – burglary, extortion, arson or use of explosives – or any other crime that has as an element the actual or threatened use of physical force.

Up to two years ago, the ACCA’s definition has a third subcategory known as the residual clause. A crime of violence also included any crime that carried a substantial risk of physical harm to another. In Johnson, the Supreme Court ruled that this residual clause was so vague that the average person could not tell what offenses counted and what did not. Such a vague statute violates a defendant’s 5th Amendment due process rights. Because Johnson meant that a number of people serving ACCA sentences were in fact innocent of their offense, the Supreme Court held that it was retroactive, that is, that people already convicted could apply to courts with a 28 USC 2255 motion to obtain relief.

At the time, the ACCA definition of “crime of violence” appeared elsewhere in the criminal code as well as in the Guidelines, where it was used in several sections, especially in Chapter 4 to label someone a “career offender.” A “career offender” under the Guidelines faces dramatically increased sentencing ranges. Naturally, defendants serving long career offender sentences promptly filed for relief as well, despite the fact that Johnson only encompassed the ACCA, and not the Guidelines.

limitone170912Every federal criminal defendant is entitled to file one and only one 2255 motion after conviction, that filing being due within a year of the conviction becoming final. In order to file a second 2255, the defendant must request permission from the Court of Appeals first. Permission is granted only under limited circumstances, where there is newly discovered evidence that convincingly proves innocence, or where a new rule of constitutional law – like the Johnson holding – is made retroactive.

Soon after Johnson was decided in June 2015, Tom Hoffner asked the 3rd Circuit for permission to file a second 2255. He argued that Johnson was the new rule of constitutional law that should apply to his career offender sentence, which was handed down in 2000. Back then, judges were required by law to follow the Guidelines, which only changed in 2005 when the Supreme Court declared mandatory Guidelines unconstitutional in United States v. Booker.

zax170912Remember Dr. Seuss’s story of a North-Going Zax and a South-Going Zax, who run into each other? Both are trying to get to their desired locations, but neither will move out of the way to let the other one pass. While both stand facing each other, unmoving, the world continues on moving and time passes by.

Tom’s case was something like that. The statute directs courts of appeal to decide applications to file second 2255s within 30 days. Holding that the 30-day language in 28 USC 2244 is merely “advisory,” the 3rd Circuit required over two years to decide whether Tom should be allowed to file a second 2255.

While Tom patiently waited, toe to toe with the government like the two Zaxes, the world did not stand still. First, the Supreme Court decided in Welch v. United States that the Johnson holding should be retroactive. Then, the Supreme decided last March in Beckles v. United States that Johnson would not be extended to people who were career offenders under the advisory Guidelines, leaving open the question of whether Johnson could be extended to people like Tom who had become career offenders under the mandatory Guidelines.

After that, two cases that many thought would decide whether Johnson extended to mandatory Guidelines people the 6th Circuit in United States v. Raybon and the 4th Circuit in United States v. Brown – ended up turning on the decidedly procedural question of whether the 2255s had been filed on time.

rely170912Finally, Tom’s time came last Thursday. The 3rd Circuit handed down 25 pages of careful thought-out analysis on the issue, concluding that while Johnson did not necessarily address Tom’s precise issue, 2244(b) only looks at whether the movant’s claim “relies” on the new rule of constitutional law. Nothing mandates that it be precisely the same point that the movant wants to claim. Thus, if Johnson is a new rule of constitutional law applying to language in the ACCA, and Tom “relies” on that rule in his argument that the same vagueness infirmity afflicts a guideline used to sentence him, that reliance is enough to come within the statute.

The Circuit held that in analyzing 2244 motions, the court needed to lean toward grant.

The context of Section 2244(b)… supports interpreting “relies” permissibly and flexibly… As explained above, Congress has mandated that the “grant or denial of an authorization… shall not be appealable and shall not be the subject of a petition for rehearing or for a writ of certiorari.” 28 U.S.C. § 2244(b)(3)(E). This creates an asymmetry in the impact of our gatekeeping decision on a particular case… On one hand, if we erroneously deny authorization, the petitioner “will have no opportunity to appeal or seek rehearing.” On the other hand, “if we err in granting certification, ample opportunity for correcting that error will remain.” The district court will have the opportunity to determine anew whether the petitioner has “shown that the claim satisfies the requirements of this section,” and whether the habeas petition has merit… In turn, we may review the district court’s decision.

It’s not a done deal that Tom will win the 2255 motion he now has permission to file (although you could be forgiven for reading it like the 3rd thinks he will). But the Circuit seems pretty convinced that there’s some merit in his claim.

The significance of this decision, which the 3rd Circuit issued as precedential, is its thoroughness in discussing the 2244 process. In a world where most decisions on second-and-successive 2255s are three-page affairs, and where the statutory limitations on certiorari mean that the Supreme Court will never be able to opine on the matter, this decision is as much guidance as any court has ever given on 2244 practice.

In re Hoffner, Case No. 15-2883 (3rd Circuit, Sept. 7, 2017)

– Thomas L. Root

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4th Circuit Hands Down a ‘Catch-22’ in Brown Case – Update for August 23, 2017

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CATCH-22

catch22cvr170823Those of us approaching social security age lament that the younger among us (and that’s getting to be just about everyone) no longer recalls Joseph Heller’s classic satirical novel about allied bomber pilots in World War II named Catch-22.

The expression “Catch-22” has since entered the lexicon, referring to a type of unsolvable logic puzzle sometimes called a double bind. According to the novel, people who were crazy were not obligated to fly missions, but anyone who applied to stop flying was showing a rational concern for his safety and was, therefore, sane and had to fly.

It’s not a perfect analogy, but the 4th Circuit came pretty close to defining a “Catch-22” on Monday. Thilo Brown had been sentenced as a career offender back in the bad old days, when the Guidelines were mandatory. He had been enhanced as a “career offender” for prior crimes of violence, among those being a prior state conviction for resisting arrest. After the Supreme Court held in Johnson v. United States that the residual clause of the Armed Career Criminal Act’s definition of a “crime of violence” was unconstitutionally vague, people who had been sentenced under the ACCA because of priors like Thilo’s won substantial sentence relief.

Thilo’s problem was that he wasn’t sentenced under the ACCA, despite the fact that the “career offender” Guidelines used the identical, word-for-word language defining a “crime of violence” that the Johnson court threw out of the ACCA. But he dutifully filed a post-conviction motion under 28 USC 2255 asking that his “career offender” status be vacated because of Johnson.

The government argued vociferously against Thilo, maintaining that the Guidelines are different that the ACCA, and that the same language that is unconstitutional in one is hunky dory in the other. The Supreme Court took up the question last spring in Beckles v. United States, and agreed that because the Guidelines merely recommended to the judge how to sentence offenders, if they were a little too vague, there’s no harm done.

But the Beckles Court was careful to explain that it was only deciding the case in front of it, in which the prisoner had been sentenced after the Guidelines became advisory in 2005. The Supreme Court said it was not considering whether the vague “crime of violence” language might violate a prisoner’s due process rights if used to sentence someone under the mandatory Guidelines.

catch22vis170823So Thilo pursued his 2255 motion, arguing that Johnson is a new right recognized by the Supreme Court which does extend to mandatory Guidelines people like himself. This is an important argument, because Thilo’s 2255 motion fell within the time deadline set out in 28 USC 2255(f)(3) only if it was filed within a year of the right he was asserting being recognized by the Supreme Court, and being made retroactively applicable to cases on collateral review.

Everyone had high hopes for Brown. Countless other lower court cases were stayed awaiting the decision. In fact, a 6th Circuit decision last week cited the pending Brown decision as being the one to resolve the question that went unanswered in Beckles: is the “career offender” residual clause unconstitutional when applied to mandatory Guidelines offenders?

The 4th Circuit has now ruled, and it has dodged the issue slickly. The Circuit, in a 2-1 decision, held that Brown’s 2255 petition was untimely.

The panel said the right under which an inmate proceeds has to be a right recognized by the Supreme Court. This means, the Circuit said, that only the Supreme Court can recognize the right. There is no derivative authority. That is, a lower court cannot recognize a right it may believe is implicit in analogous holdings by the Supreme Court.

vaguenes160516The Supreme Court recognized in Johnson that the residual clause of the Armed Career Criminal Act was unconstitutionally vague (a due process violation, because everyone has a 5th Amendment right to understand what conduct is or is not unlawful). However, this recognition does not mean that the right was recognized for “career offenders” sentenced under Guidelines using the same language.

The 4th noted that the Supreme Court said in Beckles that it was not deciding Johnson’s applicability to mandatory Guidelines career offender cases. This merely proved, according to the Brown court, that the Supremes had definitely not yet recognized the right being asserted by Thilo.

Here’s the Catch-22 with the 4th Circuit’s approach. First, accept that no one who has a career offender sentence under the mandatory Guidelines could have possibly been sentenced after 2004, because it would not have been final when United States v. Booker was issued in January 2005, and would have gotten the benefit of a resentencing.

If a “career offender” Guidelines sentence was final on December 31, 2004, a timely 28 USC 2255 motion had to be filed by December 31, 2005. But as of that time, the right to not be sentenced for vague residual-clause offenses was still more than nine years in the future. No 2255 raising the unconstitutionality of the residual clause had any realistic chance of success until the end of June 2015, when Johnson was handed down.

But if the Brown decision is right, in order for such a 2255 to be successful, it had to be timely under 2255(f)(3), because no other subsection would have made such a filing timely.

Except that it could not possibly be timely under (f)(3). The identical “residual clause” language found to be unconstitutional in Johnson could be tested under the advisory Guidelines, because at the time Johnson was decided, people were still being sentenced as career offenders under the Guidelines. Someone could test the language in a 2255 motion filed within a year of finality. But no one could test whether the language remained constitutional if applied to a mandatory Guidelines sentence, because no timely 2255 could be filed challenging its application to a sentence that necessarily had to have been imposed more than nine years before.

Thus, if the 4th Circuit is right in Brown, to assert a constitutional right just recently defined by the Supreme Court, a mandatory Guidelines prisoner would have to have filed the petition challenging it a decade ago, when the right did not exist and he or she would be laughed out of court.

It’s not quite a Catch-22, but it certainly carries the same level of arbitrariness and frustration.

The dissenting judge argued persuasively that the right recognized by the Supreme Court does not have to be the precise application being sought by the petitioner. Instead, alleging a rational and supportable extension of the newly-recognized to a similar fact situation is enough. Certainly, it is more efficient, and is reasonably calculated to do justice.

And should that not count for something?

United States v. Brown, Case No. 16-7056 (4th Cir., August 21, 2017)

– Thomas L. Root

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6th Circuit Holds Mandatory Guidelines Johnson Issue Not Timely – Update for August 17, 2017

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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.

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SPLITTING HAIRS

split170818Back in medieval times (before 2005), when Guidelines sentencing ranges were mandatory, Jerome Raybon was convicted in federal court of drug distribution. His prior state convictions qualified him under the Guidelines as a “career offender,” thus mandating a much more severe sentence.

One of those prior convictions was the Michigan offense of assault with intent to do great bodily harm. On its face, such an offense sounds like a crime of violence, which is what it had to be to help qualify Jerome as a career offender. But after the Supreme Court handed down Johnson v. United States in 2015, Jerome filed a petition under 28 USC 2255, arguing that the assault conviction was no longer a crime of violence, and his “career offender” status was incorrect.

Johnson151213Of course, Johnson – which held that the part of the “crime of violence” definition that included any offense that carried a significance of injury was unconstitutionally vague – applied to the Armed Career Criminal Act. Two other means by which a prior conviction could be considered a crime of violence were not affected by the decision. Also, the definition of “crime of violence” in Chapter 4B of the Sentencing Guidelines, although identical, was never considered by the Johnson court.

Unsurprisingly, a subsequent case – United States v. Beckles – found its way to the Supreme Court in short order, asking whether Johnson should apply to Guidelines career offender sentences. Last spring, the Supreme Court said it did not, at least not to “career offenders” sentenced under the advisory Guidelines. The Court pointedly said that its decision did not extend to any old sentences under the mandatory Guidelines that might be knocking around.

For their first 16 years of operation, as everyone knows, the Sentencing Guidelines were mandatory, and a judge had to sentence within the specified range except in the rarest of circumstances, when the court could justify a “departure” up or down from the range. Even then, the departure was strictly regulated by the Guidelines.

However, in 2005, the Supreme Court held in United States v. Booker that mandatory sentencing guidelines were unconstitutional. The Court struck the requirement that the Guidelines be followed from the statute, and the Guidelines have been advisory ever since.

So we have split a hair in Johnson, and split that split hair in Beckles. It was inevitable that a case like Jerome’s would arise.

splitB170818The district court said that Jerome’s 2255 motion was untimely, because his argument against the Michigan assault conviction was not that Johnson made it inapplicable, but rather that another case addressing one of the other means of defining a crime as violent – which had been handed down in 2010 – was what disqualified the assault.

Jerome appealed. Earlier this week, the 6th Circuit agreed with the district court, but for a very different reason.

Jerome’s problem, the Court said, was that for his 2255 motion to be timely, it had to be filed within one year of “the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review.” 28 USC 2255(f)(3). But due to the Supreme Court’s repeated hair-splitting, the precise issue – whether Johnson applied to an old mandatory Guidelines sentence – has not been decided. In fact, the Supreme Court explicitly said in Beckles that it was not deciding the question of whether Johnson applied to Jerome’s situation.

violent160620Because of that, Jerome’s petition was untimely, and it had to be dismissed. While you would think that settled the matter, the 6th Circuit decided to address his argument anyway, and quickly concluded that, of course, Michigan’s “assault with intent to do great bodily harm” statute remained a crime of violence under the definition even if Johnson did apply. No surprise there.

Whether Johnson will offer relief to any of the 7% or so of federal inmates serving the old mandatory Guidelines sentences is being litigated in several Circuits. The closest case to decision is probably the 4th Circuit case, United States v. Brown, Case No. 16-7056, argued May 11, 2017.

United States v. Raybon, Case No. 16-2522 (6th Cir., Aug. 14, 2017)

– Thomas L. Root

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