Tag Archives: 2255(f)(4)

I Trust You, Madam Prosecutor – Update for January 26, 2021

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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.

THE DILIGENCE THAT IS DUE

Anyone familiar with post-conviction motions knows that “due diligence” is demanded of prisoners who seek equitable tolling (forgiveness for late filing), make a showing to justify the filing of a second-or-successive motion, or even calculate a deadline for filing a motion under 28 USC § 2255(f)(4) (which permits filing a § 2255 addressing newly-discovered evidence).

diligence170608The 3rd Circuit last week handed down a very detailed and thoughtful analysis of exactly what constitutes due diligence where a defendant is claiming a Brady violation in a post-conviction context (such as a § 2255 motion). Defendant Bill Bracey had been convicted by testimony from two cooperating witnesses. The prosecution disclosed the witnesses had gotten favorable plea agreements on certain charges in exchange for their testimony, but Bill found out a number of years later that the witnesses got breaks on other charges, too, that the prosecution has not disclosed. He could have found out about the other charges much earlier if he had checked the public record, but he instead trusted that the prosecutor had complied with Brady.

The Circuit held that a defendant had a right to presume the government had complied with its Brady obligations, and only when a person in the defendant’s position “would reasonably expect” that independent investigation would yield evidence of a Brady violation, was due diligence implicated. “Once Brady is understood to impose an affirmative disclosure obligation on the government, one in which criminal defendants are entitled to place their faith,” the 3rd held, “a defendant’s lack of independent investigation does not equate to a lack of due diligence, at least not without facts giving him a reasonable basis to suspect a Brady violation… We hold, therefore, that a habeas petitioner’s Brady claim is timely… so long as it is filed within one year of the date on which the petitioner has reason to believe that the prosecution may have violated its duty of disclosure.”

Bracey v. Superintendent, Rockview SCI, Case No 17-1064, 2021 U.S. App. LEXIS 1623 (3rd Cir Jan 21, 2021)

– Thomas L. Root

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