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Bad Cases Make Hard Law – LISA Newsletter for September 12, 2024

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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.

WHEN ‘SHALL’ CAN MEAN ‘MAY’

Last week, I referenced Booker v. Bayless, a strange case from the Northern District of West Virginia that found the Federal Bureau of Prison’s duty to place people with sufficient First Step Act credits in halfway house or home confinement was not subject to judicial review.

holmes240912Civil War combat vet and Supreme Court Justice Oliver Wendell Holmes, Jr., once wrote that “hard cases make bad law.” A fair obverse of that aphorism applies to Bayless: Bad cases make hard law.

In Bayless, the prisoner filed a messy habeas petition arguing that the BOP should be ordered to give him the 12 months halfway house he was entitled to under the Second Chance Act. As I noted last week, prisoners are not ‘entitled’ to even one day of halfway house under the SCA. The Magistrate Judge said as much in his Report and Recommendation.

The petitioner filed objections to the Report and Recommendation with the District Court, asking the Judge (as the Court described it) “to take ‘judicial notice’ of… Woodley v. Warden… [P]etitioner cites [18 USC] §§ 3624(g) and 3632(d)(4)… [and] goes on to quote directly from Woodley.” Rather than declining to consider arguments on those sections that hadn’t been raised in front of the Magistrate Judge, the District Court addressed them, relying on Murray Energy Corp v. Environmental Protection Agency, a 4th Circuit decision that ruled an EPA decision was not subject to court review because the statute in question did not impose on the EPA a duty “amenable” to 42 USC § 7604(a)(2) review.

The District Court ruled,

Section 3632 — when read as a whole — imposes on the BOP a broad, open-ended statutory mandate to do many things for inmates. The BOP is thus left with considerable discretion in managing its § 3632 duty. The BOP gets to, among other items, assess an inmate’s risk of recidivism and needs, develop individualized reentry plans for inmates, determine the appropriate classification and placement of inmates within the prison system, manage and facilitate inmates’ participation in programs designed to address their specific needs, provide incentives for inmates who engage in positive behavior or successfully complete programs, [and] make recommendations regarding sentence adjustments based on inmates’ participation in programs and overall conduct… By statute, it has already been found that “a designation of a place of imprisonment under this subsection is not reviewable by any court”… Thus, this Court finds that § 3632 does not impose on the BOP a specific and discrete duty amenable to review by this Court. By rejecting the analysis in Woodley, this Court is keeping in line with what other courts have been doing regarding placement.

The other cases cited by the Court as supporting its holding all predate the application of FSA credits and provide dubious support.

wrong160620The Bayless decision is patently wrong. First, the issue is much narrower than reading § 3632 “as a whole.” Rather, it is whether – once an inmate meets all of the eligibility requirements – the BOP has a mandatory duty to place the prisoner in halfway house or home confinement. That does not ask the Court to review any discretionary eligibility requirement listed in § 3632, but rather only asks whether – once a prisoner is found to be eligible – what a single sentence in § 3632(d)(4)(C) means.  That sentence is “[t]he Director of the Bureau of Prisons shall transfer eligible prisoners, as determined under § 3624(g), into prerelease custody or supervised release.” (Emphasis mine).

Pretty simple question… Does “shall” mean “shall” or does it just mean “may?” But the Bayless court says the answer is not for the courts to say.

Second, the EPA decision interprets a statute – 42 USC § 7604(a)(2) – that is particular only to the EPA. That statute authorizes a private citizen to sue the EPA “where there is alleged a failure of the Administrator to perform any act or duty under this chapter which is not discretionary with the Administrator…”  There is no adjunct to this in the First Step Act.  Instead, the operative statute for a prisoner would be 28 USC § 2241, the writ of habeas corpus, a very different animal indeed.

Under the Bayless reasoning, the FSA credit statute becomes toothless, leaving the BOP free to do anything it wants to do with the credits a prisoner has earned.

incompetent220215The Bayless decision is error-ridden, but it is largely the result of a petitioner who didn’t know what he was doing and made a mess of his ill-advised 28 USC § 2241 petition. Unfortunately, he has now appealed the denial to the 4th Circuit. Unless he gets competent legal help pretty fast, he is likely to turn a bad district court decision into a disastrous Circuit precedent.

Bad case. Hard law.

Booker v. Bayless, Case No. 5:24-CV-43, 2024 U.S. Dist. LEXIS 149061 (N.D. W.Va., August 20, 2024)

Booker v. Bayless, Case No. 24-6844 (4th Cir, docketed August 28, 2024)

Northern Securities Co. v. United States, 193 U.S. 197 (1904) (Holmes, Jr, J., dissenting)

Murray Energy Corp v. Environmental Protection Agency, 861 F3d 529 (4th Cir. 2017)

– Thomas L. Root

Thinking About a Report… And a Big White Bear – Update for July 15, 2024

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THE FSA CREDIT’S BIG WHITE BEAR

whitebear171129Some say that as a boy, Russian author Leo Tolstoy and his brother formed a club. To be initiated, the aspirant was required to stand in a corner for five minutes and not think about a big white bear. 

[Some say it was first raised by Fyodor Dostoevsky’s Winter Notes on Summer Impressions, an 1863 account of his travels in Western Europe. Choose whichever origin story you like. As crusty old Judge Miller used to lecture us young lawyers, “you pays your money and you takes your chances”].

Last week, the Dept of Justice issued its annual report on the First Step Act, and puts both Tolstoy and Dostoevsky to shame. The Report manages in 50 pages to explore the FSA’s nooks and crannies without ever thinking about (let alone mentioning) the Act’s big white bear: Prisoners are amassing large numbers of FSA credits that they are being denied their right to use because the BOP’s sloth in expanding halfway house capacity has resulted in there simply being no room in the halfway house inn.

There’s a lot in the Report worthy of mention, and I intend to cover more of it this week. But first, a discussion of what the Report does not say.

FSA credits (previously called “ETCs” for “earned-time credits” or “FTCs” for “federal time credits”) are awarded to prisoners for successful completion of evidence-based recidivism reduction programs (“EBRRs,” in the BOP’s acronym-heavy bureaucratic speak). Such credits entitle prisoners to one of two benefits. First, the BOP may (but is not required to) apply up to 365 credits to shorten the inmate’s sentence by up to a year. Second, the BOP shall use any credits not used to shorten the sentence to place the prisoner in a halfway house or home confinement (known as “residential reentry centers” or “RRCs”).

This second option, enshrined in 18 USC § 3624(g)(2), says that “[a] prisoner shall be placed in prerelease custody as follows…”

The problem is that there isn’t nearly enough halfway house space to accommodate people now entitled to longer stays. It’s not like no one saw this coming: inmates have been complaining in my email for a year that they are being denied use of their FSA credits because of a lack of halfway house space. Walt Pavlo wrote about it in Forbes six months ago. NBC reported on it last month.

Unsurprisingly, the BOP has fought hammer and tong against any suggestion that it was violating First Step, arguing in courthouses across America that despite the Act, it had the discretion to decide whether the FSA credits earned by an inmate were gold bullion or play money.

planning240715This brings us to Alphonso Woodley, a BOP “adult in custody” who had amassed a pile of FSA credits (something over 450, even after 365 had been applied to reduce his sentence by a year). The BOP, however, told him he couldn’t be sent to an RRC in the Orlando, Florida, area because there was no bed space. Al said to the BOP, “That’s your problem,” and filed a 28 USC 2241 habeas corpus action.

The BOP rolled out its tired refrain that designation of prisoners to RRCs was its exclusive prerogative. The district court conceded that this was generally true, but where a prisoner had a statutory right to placement, the BOP had no choice. The First Step Act guaranteed Al designation to an RRC under 18 USC 3624(g)(2) as long as he had credits to spend and met the statutory criteria. Everyone agreed Al met the criteria. The judge called that game, set and match.

He wrote that the BOP’s

excuse for delaying petitioner’s transfer to an RRC is that bed space is not available in a particular RRC until September. No such condition concerning bed availability is included among the requirements for eligibility under § 3624(g), however, and thus immediate placement in prerelease custody is nevertheless required under § 3632(d)(4)(C)… That statute uses the mandatory “shall” (as distinguished, for instance, from the provision in § 3624(g)(3) that the BOP “may” transfer a prisoner to early supervised release). Numerous courts have held that the BOP has no discretion to delay or refuse transfer of an eligible prisoner to prerelease custody, which transfer is mandatory.

The court said that the BOP is required by the Act to “ensure there is sufficient prerelease custody capacity to accommodate all eligible prisones,” suggesting that the Bureau’s failure to plan ahead does not excuse its noncompliance with the law. To the court, it was fairly simple:

“Because the BOP’s failure to transfer petitioner to prerelease custody violates federal law, the Court grants the petition for relief.”

whitebear2407715The BOP probably doesn’t like that big white bear, the fact that it is required to deliver on RRC placement despite the agency’s utter failure over five years to ensure that there was enough RRC space. But as Dostoevsky or Tolstoy (or both) figured out, just because you can force yourself to not think about it doesn’t mean it isn’t there.

Dept of Justice. First Step Act Annual Report – June 2024

Woodley v. Warden, Case No 24-3053, 2024 U.S. Dist. LEXIS 87521 (D. Kan. May 15, 2024)

– Thomas L. Root

Summer of Our Discontent – Update for July 10, 2023

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JONES TSUNAMI ROLLING OVER PENDING CASES

The two-week-old Jones v. Hendrix decision is claiming its first victims.

innocent210504You recall that in Jones, the Supreme Court held that if a federal prisoner has previously filed a § 2255 motion – even one addressing a completely unrelated issue – he or she cannot file a second post-conviction challenge arguing that, under a new Supreme Court decision that changes a statutory interpretation, even if the change means that the prisoner was not guilty of a crime.

In other words, as attorney Adam Unikowsky blogged last week, “Even if the federal prisoner is indisputably innocent, the prisoner must serve his full sentence.”

I know of a number of pending district court 28 USC § 2241 cases that Jones has already torpedoed. Last Friday, the 7th Circuit added to the carnage.

DeAngelo Sanders had argued in a 28 USC § 2241 habeas petition that he did not have the required three prior drug or violent convictions for a mandatory minimum 15-year sentence under the Armed Career Criminal Act. His filing came well after his § 2255 post-conviction motion had been denied, and only because the Circuit had just ruled that a conviction for Illinois residential burglary cannot be used to enhance an ACCA sentence.

The Circuit was in the middle of considering whether DeAngelo could rely on the 28 USC § 2255(e) saving clause to raise his actual-innocence-of-ACCA-sentence when the Supreme Court handed down Jones. Last Friday, the 7th denied DeAngelo’s case.

The Supreme Court’s Jones decision ruled that “Section 2255(h) specifies the two limited conditions in which Congress has permitted federal prisoners to bring second or successive collateral attacks on their sentences,” the Circuit said. “The inability of a prisoner with a statutory claim to satisfy those conditions does not mean that he can bring his claim in a habeas petition under the saving clause. It means that he cannot bring it at all. Congress has chosen finality over error correction in his case.”

courthouseclosed170605The same thing happened to Carlous Horton’s habeas petition, which argued that his mandatory life sentence for drug distribution, based on three prior drug trafficking convictions, should be vacated. “The government conceded that two of Carlous’s prior drug convictions are not proper § 841 predicates under Mathis,” the 7th said last Friday, “and a third – the 1995 Illinois cocaine conviction mentioned above – also could not be counted as a predicate under a recent Circuit decision in United States v. Ruth. But the government opposed relief, arguing that although Carlous’s habeas petition was premised on new statutory interpretation developments, he had not been previously precluded by Eighth Circuit precedent from making” the same arguments.

Last Friday, the Circuit dismissed Carlous’s case, holding that Jones kicked the legs from under his claim as well.

Adam Unikowsky concedes that the Jones majority opinion, written by Justice Thomas, “is well-written and persuasive. He puts forward a powerful argument that under the plain text of the applicable federal statutes, federal prisoners are forbidden from bringing this type of challenge. Justice Jackson’s dissent is also well-written and persuasive. She puts forward a powerful argument that the majority’s interpretation conflicts with congressional intent and would lead to unfair consequences. In the end, Jones presents a tough, close issue.”

Rather than focus on Jones’s merits, Unikowsky argues for a statutory fix that would allow prisoners to file successive Section 2255 petitions when new Supreme Court decisions establish their innocence. “This is not a tough, close issue,” he writes. “It is an obviously correct position that should prevail by unanimous voice votes in the House and Senate.”

congress151220Writing in Law 360, Northeastern University law professor Daniel Medwed agreed. “Perhaps Congress could add a third route, and even tailor it narrowly to gain bipartisan support,” Medwed wrote. “Specifically, Congress could change the law to permit a successive or second habeas filing when the Supreme Court has recognized a new statutory principle that is made retroactive and that could be relied on by those in custody to claim legal innocence. This would address Justice Jackson’s core concern about ‘slamming the courtroom doors to a possibly innocent person,’ while simultaneously avoiding any reference to the saving clause, let alone making that provision the ‘license for unbounded error correction’ that Justice Thomas feared.”

Sanders v. Joseph, Case No. 19-2504, 2023 U.S. App. LEXIS 17176 (7th Cir. July 7, 2023)

Horton v. Lovett, Case No. 21-1004, 2023 U.S. App. LEXIS 17177 (7th Cir. July 7, 2023)

Adam’s Legal Newsletter, Imprisoning innocent people is bad (July 2, 2023)

Law360, Justices’ Habeas Ruling Further Saps Writ Of Its Strength (July 7, 2023)

– Thomas L. Root

Supremes Hear Saving Clause Argument Today – Update for November 1, 2022

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SUPREME COURT TO HEAR 2255 SAVING CLAUSE ARGUMENT

Today, the Supreme Court will hear oral argument on the reach of 28 USC § 2255(e), the so-called saving clause.

In Jones v. Hendrix, the high court will consider whether a prisoner may use a 28 USC § 2241 habeas corpus petition to make a Rehaif claim – that he did not know he was subject to the proscription on possessing a gun or ammo – where he could have made the claim in a § 2255 motion years ago.

At least two circuits hold that where the issues could have been raised in the § 2255 motion – even though raising it would have been futile because Circuit precedent was totally against the argument – the saving clause will not let the prisoner file a § 2241 petition.

one-tripcar221101SCOTUSBlog said last week, “one suspects that the conservatives who joined the Rehaif majority… may nonetheless be open to concluding that prisoners like Jones cannot reap the benefit of their ruling. With rare exceptions, the court’s conservative majority has exalted finality over the fairness of individual proceedings – and did so long before the current 6-3 supermajority (as Justice Harry Blackmun noted in a dissent more than 30 years ago, “one searches the majority’s opinion in vain… for any mention of petitioner[]’s right to a criminal proceeding free from constitutional defect”). And though it will mean that defendants like Jones continue to serve time in prison for conduct that the court has said is not criminal, AEDPA’s bar on second or successive petitions provides a vehicle for that result. This car is good for just one ride.”

SCOTUSBlog, On the narrow road to challenge a federal conviction, when is a vehicle “inadequate”? (October 28, 2022)

– Thomas L. Root

Sure You’re Innocent, But WHY Are You Innocent? – Update for July 12, 2021

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JUST SAYING IT DOESN’T MAKE IT SO

smile210712Sam Abram had a brief but prolific career as a bank robber, an occupation that Sam found to be more rewarding if he employed a smile and a gun rather than a smile alone. When the FBI nabbed him, Sam was convicted of the robberies and – for good measure – as a convicted felon in possession of a gun, a violation of 18 USC § 922(g).

Sam was convicted, lost on appeal, and then lost again on a post-conviction 28 USC § 2255 motion. Several years later, the Supreme Court held in Rehaif v. United States that to be convicted of being a felon-in-possession, the defendant had to actually know he was a member of a class of people prohibited from possessing a gun. In Sam’s case, Rehaif said he had to know he was a convicted felon at the time he possessed the gun.

Generally, a § 2255 motion is the only way to mount a post-conviction challenge to an unlawful conviction or sentence, but 2255 motions are pretty much one-to-a-customer. If you have already filed one § 2255 motion, you must get permission from the Court of Appeals to file a second one, and getting permission is tough. Under 28 USC § 2244, you must either show you have discovered new evidence you couldn’t have feasibly found before – evidence that would have been a home run with the jury – or that the Supreme Court had handed down a constitutional ruling made retroactive on appellate review.

Rehaif was a reinterpretation of a statute that virtually all of the Federal circuits had gotten wrong, but because it was a decision of statutory construction rather than a decision that 18 USC § 922(g) was unconstitutional, Sam couldn’t get leave to file a new § 2255 motion.

savings180618But § 2255 has a “savings clause,” § 2255(e), which lets people in Sam’s position file a traditional 28 USC § 2241 habeas corpus petition when a § 2255 motion “is inadequate or ineffective to test the legality of his detention.” And a § 2255 motion is “inadequate or ineffective” if “(1) the § 2241 petition raises a claim that is based on a retroactively applicable decision; (2) the claim was previously foreclosed by circuit law; and (3) that retroactively applicable decision establishes that the petitioner may have been convicted of a nonexistent offense.”

Sam filed a § 2241 petition, arguing that his § 922(g) conviction should be thrown out because his indictment never alleged he knew he had been convicted of a prior felony, and, by the way, he was actually innocent in that he didn’t know about his convicted-felon status. The district court shot down his § 2241 petition, and last week, the 5th Circuit agreed.

The Circuit said that Sam had to provide some evidence or argument supporting that he may have been convicted of a nonexistent offense. That requirement is “particularly important in the Rehaif context,” the 5th said, because “[c]onvicted felons typically know they’re convicted felons” (a Kavanaugh quip from last month’s Supreme Court decision, Greer v. United States). The Circuit said, “if a defendant was in fact a felon, it will be difficult for him to carry the burden… of showing a reasonable probability that, but for the Rehaif error, the outcome of the district court proceedings would have been different.”

innocent210712All Sam did was assert he was actually innocent, which was nothing more than parroting the standard for a “savings clause” § 2241 petition. Where a prisoner just does that – without providing some evidence or argument supporting his claim that he was unaware of his relevant status – then, the Circuit ruled, “he has failed to demonstrate that he is entitled to proceed under § 2255(e)’s savings clause.” And thus, a substantive defect in the prisoner’s showing becomes a procedural defect as well.

Abram v. McConnell, Case No. 20-30199, 2021 US App. LEXIS 20174 (5th Cir. July 7, 2021)

– Thomas L. Root

“If At First You Don’t Succeed…” Doesn’t Work in Habeas Corpus – Update for October 28, 2020

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WHEN TOO MUCH IS MORE THAN ENOUGH

oneshot201029You pretty much only get one shot trying to convince your judge you were wrongly convicted in a habeas corpus motion under 28 USC § 2255 (except for a few circumstances not relevant here). But how about the “saving clause” in § 2255(e) which lets an inmate use another route to file habeas corpus when a § 2255 petition “is inadequate or ineffective to test the legality of detention?”

Roberto Beras, convicted of using his check cashing/money transfer business to launder millions in drug proceeds, figured § 2255(e) meant he could file a § 2241 petition for habeas corpus if the § 2255 no longer worked (because it had already been filed and denied in the 2nd Circuit, and two requests to file successive § 2255s denied as well).

Roberto figured the Supreme Court’s 2008 Cuellar v. United States decision was his ticket home. So even while his § 2255 motion was pending in New York, Roberto was filing § 2241 habeas corpus motions wherever he happened to be. In two petitions filed in U.S. District Court for the Northern District of Ohio, he claimed he was innocent under the Cuellar statutory interpretation decision, but the Northern District court disagreed, finding Roberto would have been found guilty even under Cuellar. When Roberto was transferred to a facility in the Western District of Louisiana, he filed the same claim again.

Last week, the 5th Circuit threw out Roberto’s latest § 2241 petition as an “abuse of the writ.”

The § 2255(e) “saving clause” permits an inmate to file a 28 USC § 2241 petition based on new interpretations of federal statutes – like Cuellar – when the claim was previously “foreclosed by circuit law at the time when it should have been raised” and when the “retroactively applicable decision establishes that the petitioner may have been convicted of a nonexistent offense.” But, the Circuit said, that wasn’t the issue here. Instead, Roberto’s § 2241 should be dismissed as “an abuse of the writ of habeas corpus.”

2255(e)filings201029“Abuse of the writ” is a common-law based “body of equitable principles informed and controlled by historical usage, statutory developments, and judicial decisions.” Under 28 USC § 2244(a), the Circuit held, it can dismiss a successive habeas application as an “abuse of the writ” where the movant raises a claim in a subsequent petition that either was raised or could have been raised in an earlier petition.

The 5th said Roberto “has filed claims in at least four circuits and for nearly twenty years. To allow him to repeat the same claim – heard and denied by another circuit – would be to condone forum-shopping… Perpetual disrespect for the finality of convictions disparages the entire criminal justice system.”

Beras v. Johnson, Case No. 18-30684, 2020 U.S. App. LEXIS 33058 (5th Cir Oct 20, 2020)

– Thomas L. Root

Procedure Matters on a 2241 Motion, 4th Circuit Says – Update for September 4, 2020

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JUST BECAUSE A 2255 WON’T WORK DOESN’T MEAN A 2241 WILL

A military aphorism credited to more than one general (the oldest of whom was General Omar Bradley) is “amateurs talk strategy, but professionals talk logistics.” A post-conviction adjunct might be, “clients talk substantive issues, but lawyers talk procedure.”

nuns200903What we mean is in post-conviction proceedings on federal convictions, the best case on the planet (imagine a newly-discovered busload of nuns who all swear they saw you helping your mother weed her garden 50 miles from the back that was being robbed at the same time) does not help you if you have no procedural course for getting back into court. And the procedural snares of 28 USC § 2255 are many and varied.

Lee Farkas was charged with various white-collar fraud offenses, and the government got court permission to freeze all of his considerable assets before trial. The purported reason is to be sure there is enough money to pay criminal forfeiture and restitution if the government wins, but the real reason, of course, is that it hamstrings the defendant, making it impossible to afford a defense that might level the playing field with the U.S. Attorney’s Office.

And it worked (for awhile). Lee had a lot of trouble affording the lawyers he needed. The result showed it: Lee was convicted, and got 360 months in prison.

A few years later, after Lee had filed and lost a 28 USC § 2255 motion, the Supreme Court ruled in Luis v. United States that freezing all of a defendant’s innocent assets violated the 6th Amendment. Based on that decision, the 4th Circuit ruled that criminal forfeiture statutes could not reach assets that might be substituted for forfeitable assets if the defendant lost.

Based on these decisions, Lee filed a 28 USC § 2241 petition for habeas corpus, arguing that under the 28 USC § 2255(e) savings clause, he could use the § 2241 to demand a new trial, because the seizure had violated the 6th Amendment and statute. Last week, the 4th Circuit shot him down.

"Actual innocence" is important for procedural reasons as well as substantive ones...
“Actual innocence” is important for procedural reasons as well as substantive ones…

The Circuit followed its three-part test defining the “limited circumstances” under which § 2255 will be “inadequate to test the legality of the prisoner’s detention.” First, at the time of conviction, the settled law of the Circuit or the Supreme Court must have established the conviction’s legality. Second, after the prisoner’s direct appeal and previous § 2255 motion, the substantive law must have changed so that the conduct of which the prisoner was convicted is no longer criminal or the sentence is illegally extended. And third, the prisoner cannot satisfy the gatekeeping provisions of § 2255(h) because the new rule is not one of constitutional law.

The 4th said a constitutional issue can never be heard on a § 2241 motion, because a § 2255 motion is intended for adjudicating such claims. What’s more, Lee was not claiming that he was actually innocent of the offense or sentence, but rather that taking his money was a fundamental defect in the proceeding. That is not good enough for a § 2241, the Circuit said.

Farkas v. Warden, Case No. 19-6347, 2020 U.S. App. LEXIS 27233 (4th Cir. Aug. 26, 2020)

– Thomas L. Root

Conviction Is Righteous But the BOP Can’t Hold Him – Update for December 31, 2019

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NOVEL MARIJUANA CLAIM CAN PROCEED ON § 2241 PETITION, 10TH CIRCUIT SAYS

Aaron Sandusky, who ran a medical marijuana farm in California, was indicted for violating 21 USC § 841. Despite the fact his operation complied with California law, he was convicted and got 120 months.

marijuanahell190918After his direct appeal was turned down, Aaron filed a habeas corpus motion under 28 USC § 2241, arguing that a congressional appropriations rider prevented the Bureau of Prisons from spending any funds to incarcerate him during the applicable time period of the appropriations rider. The district court dismissed the petition for lack of subject matter jurisdiction, concluding that the proper vehicle for Aaron’s claim was a motion under 28 USC § 2255 filed in the sentencing court.

Last week, the 10th Circuit reversed. The appeals panel held that a Sec 2241 motion is the proper vehicle for the relief that Aaron was seeking. “Section 2255 proceedings,” the Court said, “are used to collaterally attack the validity of a conviction and sentence… Federal prisoners challenging the validity of their convictions or sentences may seek and win relief only under the pathways described by § 2255.” Petitions under § 2241, on the other hand, are used to attack the execution of a sentence.

The Circuit concluded Aaron’s petition argued that Congress enacted the appropriations rider two years after he was convicted and sentenced in federal court, and it prohibited the BOP from spending any funds to “incarcerate individuals who engage in conduct permitted by State Medical Marijuana Laws and who fully complied with such laws.” In other words, Aaron asserted, the appropriations rider “forbids the Justice Department and the BOP from expending any funds to execute his sentence” and thus, “to abide by the law,” the BOP must release him.”

felon191231Aaron argued that he was not challenging his conviction or sentence and, even if he won his § 2241 motion, he would “remain a felon in the eyes of the law, with all of the direct and collateral consequences that status imposes on his civic and professional life.” He argued that those consequences cost the government nothing, and thus were not affected by the rider. But spending to meet the cost of keeping Aaron locked up did violate the rider.

The 10th Circuit agreed. “These allegations quite clearly challenge the execution of Bill’s sentence rather than the validity of either his convictions or sentence. He was not seeking to overturn his conviction, and he did not argue his conviction was imposed in violation of the Constitution or laws of the United States. “To be sure,” the Court said, “he is seeking to be released from the BOP’s custody. But, even if his proposed interpretation of the appropriations rider should prove to be correct and he establishes his entitlement to release, Congress could always decide in future appropriation acts to modify or exclude altogether the appropriations rider. In that event, the BOP would presumably be free to incarcerate Sandusky again and require him to complete the remainder of his sentence. For these reasons, we conclude that Sandusky’s habeas petition was challenging only the execution of his sentence, and not the validity of his conviction or sentence… and… his proper avenue for relief was § 2241 and not § 2255.”

Sandusky v. Goetz, 2019 U.S. App. LEXIS 37124 (10th Cir. Dec. 16, 2019)

– Thomas L. Root

7th Circuit Oks 2241 Filings for Mathis ACCA Claims – Update for September 16, 2019

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7TH CIRCUIT DOES NOT REQUIRE TILTING AT WINDMILLS

“Tilting at windmills,” taken from Cervantes’ classic “Don Quixote,” is typically used to suggest engaging in an activity that is completely futile.

quixote190916Engaging in a hopeless venture is more common than you think. A lot of post-conviction defendants trying to raise Mathis claims – that prior offenses are not violent or overbroad controlled substance crimes using the categorical approach – have run into a procedural brick wall. Mathis provides procedural guidance on how to interpret statutes. It does not announce a new constitutional rule, and it does not narrow the application of a substantive criminal statute to make prior conduct no longer criminal. People trying to file Mathis § 2255 motions have been frustrated, and people filing § 2241 petitions for habeas corpus have often found the going rough.

Last week, the 7th Circuit tackled the issue, ruling that Mathis was “an intervening case of statutory interpretation” that “opens the door to a previously foreclosed claim.” Todd Chazen, who is in a federal prison within the 7th Circuit, filed a petition for habeas corpus under 28 USC § 2241, arguing that under Mathis, his prior conviction for Minnesota third-degree burglary no longer counted for his Armed Career Criminal Act sentence. He was right: under both 7th and 8th Circuit law, the second- and third-degree Minnesota burglary statute had been held to no longer count for ACCA purposes.

The government, however, argued that when Todd filed his § 2255 motion six years ago, he could have made the same argument, even though Mathis had not yet been decided. The Circuit disagreed:

“In 2013—at the time Chazen first moved for post-conviction relief under § 2255—”the law was squarely against” him in that it foreclosed the position he currently advances—that Minnesota burglary is not a violent felony under the Act.

“We also conclude that Mathis can provide the basis for Chazen’s § 2241 petition… Our precedent has focused on whether an intervening case of statutory interpretation opens the door to a previously foreclosed claim. Mathis fits the bill. Mathis injected much-needed clarity and direction into the law under the Armed Career Criminal Act… It is only after Mathis — a case decided after Chazen’s § 2255 petition that the government concedes is retroactive — that courts, including our court and the 8th Circuit, have concluded that Minnesota burglary is indivisible because it lists alternative means of committing a single crime…

notiltquixote190916“In these circumstances, where the government has conceded that Mathis is retroactive and Chazen was so clearly foreclosed by the law of his circuit of conviction at the time of his original § 2255 petition, we conclude that Chazen has done enough to satisfy the savings clause requirements.”

In other words, if the Circuit law is settled, you don’t have to tilt at windmills in your § 2255 motion. If the interpretation of the statute changes later, you can take advantage with a § 2241 petition.

Chazen v. Marske, 2019 U.S.App.LEXIS 27142 (7th Cir. Sept. 9, 2019)

– Thomas L. Root

4th Circuit Denies Government Rehearing, May Force SCOTUS Review on 2241 – Update for June 18, 2018

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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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GOVERNMENT DENIED REHEARING ON 4TH CIRCUIT WHEELER CASE

We reported last April that in United States v. Wheeler, the 4th Circuit had reversed years of enforcing a policy of denying collateral review to people who improperly received higher sentences due to prior convictions, in a decision that defined when the 28 USC 2255(e) “savings clause” would let someone file a 28 USC 2241 habeas corpus action.

savings180618Gerald Wheeler had gotten a higher sentence because of a prior North Carolina drug felony that years later was ruled in United States v. Simmons to not be a felony. But Simmons’ retroactivity came too late for Jerry, whose 2255 motion had already been denied. He filed a 2241 motion, which was denied by the district court because he could only show he was actually innocent of the sentence, not of the underlying conviction.

Whether the 2255(e) savings clause applies to sentences as well as to convictions was left hanging in the 2016 United States v. Surratt case, which was dismissed on rehearing in the 4th Circuit when Mr. Surratt got a commutation from President Obama. After Mr. Wheeler won, the government requested rehearing en banc. Such requests from the government are rare and are usually granted by appeals courts. But last week, the 4th Circuit denied rehearing, making Wheeler binding precedent.

The 10th and 11th Circuits have held that a 2241 is never available to correct a change in the law. But seven other circuits permit a 2241 under the “savings clause” where a change in the law makes a defendant actually innocent of the underlying offense. Now, three circuits – the 4th, 6th and 7th – even permit a sentencing-based claim to proceed on 2241 via the saving clause.

wheelin180618Two 4th Circuit judges filed concurrences on the rehearing denial. One said that to deny Wheeler the right to test the legality of his sentence would be a miscarriage of justice. The other blasted the decision as defeat the Antiterrorism and Effective Death Penalty Act by letting inmates endlessly relitigate, saying “the issues in this case are of significant national importance and are best considered by the Supreme Court at the earliest possible date in order to resolve an existing circuit split that the panel decision broadens even farther.  Because of the potential that the case may become moot if Wheeler is released from incarceration in October 2019, as projected, I have not requested a poll of the Court upon the petition for rehearing en banc in order to expedite the path for the Government to petition for certiorari to the Supreme Court.”

Supreme Court review of Wheeler might delay some inmates who can use the decision right away, but a review of the circuit split on proper use of the “savings clause” is long overdue. Professor Doug Berman of Ohio State University law school predicted in his sentencing blog last week that “this issue, if not this case, will be taken up by SCOTUS relatively soon. But I have said this and been wrong before, so maybe I will be blogging in six months saying, ‘Hey, I was wrong’. But I don’t know that I’ll ever admit that, but I’ll find some kind of an excuse for why my SCOTUS prediction was off.”

Order, United States v. Wheeler (4th Cir., June 11, 2018)

Sentencing Law and Policy, Spotlighting lower-court divides over AEDPA’s savings clause and consideration of sentencing errors (June 12, 2018)

– Thomas L. Root

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