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Supreme Court Denies a Habeas Corpus, But With An Interesting Twist – Update for February 23, 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.

WHERE THERE’S A WILL, THERE’S A PROCEDURAL WAY

hobbsact200218Mike Bowe was convicted of an attempted Hobbs Act robbery, during which a gun was fired. So he was convicted as well of an 18 USC § 924(c) violation for the gun and received a sentence for an additional 10 years. After the Supreme Court decided United States v. Davis back in 2019, Mike filed a motion for 11th Circuit permission to file a second § 2255 motion arguing that his predicate Hobbs Act attempt was not a crime of violence to which a § 924(c) could attach.

The Circuit turned him down, holding that Mike’s § 924(c) conviction was predicated in part on attempted Hobbs Act robbery, which remained a qualifying “crime of violence” (COV) under circuit precedent. But after that, the Supreme Court decided United States v. Taylor in 2022, holding that an attempted Hobbs Act robbery was not COV, meaning that Mike had been right all along.

Being right doesn’t count for much in the world of habeas corpus. When Mike again asked for permission to file a successive § 2255 motion, the 11th Circuit again turned him down, this time because 28 USC 2244(b)(1) – part of the statute governing the procedure for getting permission for a successive § 2255 motion – barred him from raising an issue already denied in a prior § 2255 motion. No matter that the Circuit had denied that claim under erroneous, pre-Taylor precedent. Mike did everything right; his § 924(c) conviction was plainly invalid; and, but for the misapplication of § 2244(b)(1), he would now be a free man.

Under 28 USC § 2244, a prisoner who is denied the right to bring a second or successive § 2255 motion is not allowed to appeal the denial any further. It’s over. But Mike had some canny lawyers, and they filed a petition for habeas corpus with the Supreme Court, a permissible but seldom used gambit. They pointed out that under 28 USC § 2244(b)(1), a federal court must dismiss a “claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application.” 28 USC § 2244(b)(1). But state prisoners seek federal post-conviction relief under § 2254. Federal prisoners seek post-conviction relief under § 2255. Mike argued that three Circuits agreed that § 2244(b)(1) only affected state prisoners: Mike was free to bring his attempted Hobbs Act COV claim again, and that their position – not the view of the six circuits going the other way – should prevail.

The Government agreed with Mike.

habeas191211On Wednesday, the Supreme Court denied Mike’s § 2241 petition for habeas corpus. No surprise there: the Court hasn’t granted habeas to a federal prisoner in a long time. But what is noteworthy is that Justice Sonia Sotomayor joined Justice Kavanaugh in calling for a grant of review to decide the split.

But how to do that? Because the Government agrees § 2244(b)(1) doesn’t apply to federal prisoners, if one of the three circuits agreeing with that position grant permission for a second-or-successive § 2255, there will never be a petition for certiorari filed by the Government. But if the petitioner is in one of the six circuits that say that § 2244(b)(1) applies to federal prisoners as well as state prisoners, permission to file a second-or-successive § 2255 in a case like Mike’s will never be granted, and the unfortunate prisoner will not be allowed to seek certiorari.

Justice Sotomayor admitted that “[t]here are considerable structural barriers to this Court’s ordinary review via certiorari petition.”

A petition cannot reach the Supreme Court from the three Circuits that read § 2244(b)(1) to apply only to state prisoners. Before a federal prisoner can file a second or successive habeas corpus § 2255 motion, a court of appeals must certify it. When a federal prisoner files a second or successive § 2255 motion that raises an issue he has raised previously, neither the court of appeals nor the district court will apply § 2244(b)(1)’s bar. If the court of appeals certifies the motion, the district court will decide it on the merits.

A petition cannot reach the Supreme Court from the six Circuits that apply § 2244(b)(1) to both state and federal prisoners either. In those Circuits, the court of appeals will apply § 2244(b)(1)’s bar and deny certification to any second or successive § 2255 motion that raises an issue the prisoner has previously raised. Neither the Government nor the prisoner can seek review of that interpretation of § 2244(b)(1) from this Court, however, because the law bars petitions for certiorari stemming from “[t]he grant or denial of an authorization by a court of appeals to file a second or successive application.”

sotomayor240223Mike tried to invoke the Supreme Court’s jurisdiction to entertain original habeas petitions under § 2241(a). However, as Justice Sotomayor said, “The standard for this Court’s consideration of an original habeas petition is a demanding one. A petitioner must show both that ‘adequate relief cannot be obtained in any other form or from any other court” and “exceptional circumstances warrant the exercise of the Court’s discretionary powers. Whether Mike has met that demanding standard here is questionable,” the Justice wrote, “because it is not clear that, absent § 2244(b)(1)’s bar, the 11th Circuit would have certified his § 2255 motion.”

But the Circuit split needs to be settled, the Justice said, and thus, she “would welcome the invocation of this Court’s original habeas jurisdiction in a future case where the petitioner may have meritorious § 2255 claims. The Government also suggests that a court of appeals seeking clarity could certify the question to this Court.  In the meantime, in light of the demanding standard for this Court’s jurisdiction over original habeas petitions, I encourage the courts of appeals to reconsider this question en banc, where appropriate.”

Writing in his Sentencing Law and Policy blog, Ohio State law professor Doug Berman observed, “I still recall fondly when the Second Circuit in United States v. Penaranda, a full 20 years ago, certified three questions to SCOTUS concerning the application of Blakely to the federal sentencing system. I am not sure if there have been any other circuit certifications in the last two decades, but I am sure it is interesting to have two Justices flag this notable means of getting an issue on the SCOTUS docket”

Where there’s a will on the Supreme Court to hear an issue, there’s a way to get it there. Just not for Mike and not for today.

In re Bowe, Case No. 22-7871, 2024 U.S. LEXIS 988 (February 20, 2024)

Sentencing Law and Policy, SCOTUS order list includes a notable statement in a habeas denial (February 20, 2024)

– Thomas L. Root

Procedure Matters… Innocence? Not So Much – Update for March 24, 2022

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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.

IN § 2255 CASES, PROCEDURE MATTERS

procedure220324Over the past three weeks, Russia has been reminded of the truth of General Omar Bradley’s old saw that “amateurs talk strategy, professionals talk logistics.” Likewise, two cases handed down last week underscore the truth that inmates talk substance, judges talk procedure.”

DeMarko Collins pled guilty to being a felon in possession under 18 USC § 922(g)(1). DeMarko’s presentence report determined he had two prior felony convictions for crimes of violence, including a Missouri 2nd-degree robbery, which enhanced his Guidelines advisory sentencing range under USSG § 2K1.1.

Five months before DeMarko’s sentencing hearing, a divided 8th Circuit panel held in United States v. Bell that Missouri 2nd-degree robbery was not a crime of violence, but DeMarko’s attorney goofed and did not cite the decision in opposing the § 2K2.1 enhancement. The district court granted the government’s motion for an upward variance, and sentenced DeMarko to 216 months.

DeMarko appealed his sentence. Relying on Bell, he argued the § 2K2.1 enhancement should not have applied. But while his appeal was pending, the 8th Circuit en banc overruled Bell and held that a Missouri 2nd-degree robbery is a violent felony after all. Because of that, Demarko lost his appeal.

stupidlawyr191202DeMarko then filed a § 2255 post-conviction motion, arguing that his lawyer should have cited Bell, which had been controlling authority and good law at the time of his sentencing. The district court denied the § 2255, finding that even if DeMarko was right that his lawyer should have raised Bell at sentencing, “he cannot demonstrate he was prejudiced by” the error.

Last week, the 8th Circuit agreed, holding that by the time DeMarko on “direct appeal cited Bell in challenging his § 2K2.1 enhancement based on a Missouri 2nd-degree robbery conviction, Bell had been overruled… and this prior conviction was once again a predicate crime of violence under the Guidelines. Strickland prejudice ‘focuses on the question whether counsel’s deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair…’ DeMarko was not deprived of a substantive or procedural right to which the law entitles him, so he ‘suffered no legally cognizable prejudice’.”

Meanwhile, in the 9th Circuit, Cesar Gonzalez filed a 28 USC § 2244 application for permission to file a second § 2255 motion. He wanted to argue that his 18 USC § 924(c) conviction for having a gun in furtherance of a crime of violence was invalid because his predicate crime – racketeering – was no longer a categorical crime of violenceunder a new rule of constitutional law announced in the Supreme Court’s United States v. Davis decision.

Last week, the 9th Circuit shot Cesar down, finding that his new Davis argument was not “previously unavailable” as required by 28 USC § 2255(h)(2).

When Davis was handed down, Cesar had filed his § 2255 motion, and the government had responded. Cesar, however, had not yet filed his reply. The 9th Circuit ruled that to show the argument was “previously unavailable” to him, he had to show “that the real-world circumstances that he faced prevented him, as a practical matter, from asserting his claim based on a new rule of law in his initial habeas proceeding.”

The Circuit said it “recognized that pro se prisoners face unique difficulties when litigating habeas relief or anything else, and that language barriers, as Cesar cited in his case, add to those difficulties.” However, the 9th ruled, “nothing in the text or context of AEDPA‘s previously-unavailable-claim requirement suggesting that this limited exception to the otherwise broad prohibition against filing second or successive habeas proceedings was intended to be applied subjectively.”

innocent210504The 9th concluded that Cesar could show that his new Davis argument was unavailable during his initial § 2255, where Davis issued shortly before Cesar filed his reply brief and a few months before the § 2255 was decided. Cesar had the facts that he needed for his claim, the Circuit held, and no systemic or external barrier prevented him from presenting his claim in his initial habeas proceeding.

So it did not matter that Cesar stood convicted of a § 924(c) offense unlawfully, because a hypothetical reasonable inmate would have tried to raise Davis in the nearly-completed § 2255 proceeding.

Substance? Who cares about substance when procedure triumphs?

Collins v. United States, Case No. 20-3662, 2022 U.S. App. LEXIS 6725 (8th Cir., March 16, 2022)

Gonzalez v. United States, Case No 20-71709, 2022 U.S. App. LEXIS 6943 (9th Cir., March 17, 2022)

– Thomas L. Root

Going Back to the Well – Update for September 24, 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.

PROCEDURAL BOOTSTRAPPING

well210924Back to the Well Once Too Often: Federal prisoners who lose their 28 USC § 2255 motions sometimes resort to filing motions to set aside the § 2255 judgment under Federal Rule of Civil Procedure 60(b), as a clever means of getting around seeking permission for a second or successive § 2255 under 28 USC § 2244. It seldom works.

A few fun facts: First, although a post-conviction motion under 28 USC § 2255 challenges a criminal conviction or sentence, the § 2255 proceeding itself is considered to be a civil action. That is how a movant even has the option to employ Fed.R.Civ.P. 60(b), or any other Federal Rule of Civil Procedure, for that matter. Second, Rule 60(b) – which governs motions to set aside the judgment – is usable after a final judgment is rendered, although that some time constraints and designated bases for invoking the Rule that are beyond today’s discussion. Third, the Anti-Terrorism and Effective Death Penalty Act – known as the AEDPA – puts severe restrictions on prisoners bringing more than a single § 2255 motion without meeting some pretty high standards (a new retroactive rule of constitutional law or some killer new evidence) and getting advance approval from a United States Court of Appeals under 28 USC § 2244. These restrictions can run headlong into a Rule 60(b) motion.

Desmond Rouse and several co-defendants were convicted based on what they called “outdated, false, misleading, and inaccurate” forensic medical evidence, testimony that had since been recanted, and juror racism. Having failed to win their § 2255 motions, they filed a motion to set aside the § 2255 judgment under Rule 60(b), arguing that a “new rule” announced in Peña-Rodriguez v Colorado would now let them “investigate whether their convictions were based upon overt [juror] racism,” and the witness recantations showed they were actually innocent.

Last week, the 8th Circuit rejected the Rule 60(b) motion as a second-or-successive § 2255 motion.

aedpa210504The Circuit held that newly discovered evidence in support of a claim previously denied and a subsequent change in substantive law “fall squarely within the class of Rule 60(b) claims to which the Supreme Court applied § 2244(b) restrictions in Gonzalez v. Crosby back in 2005. The requirement in § 2244(b)(3) that courts of appeals first certify compliance with § 2244(b)(2) before a district court can accept a motion for second or successive relief applies to Rule 60(b)(6) motions that include second or successive claims. Our prior denial of authorization did not sanction Appellants’ repackaging of their claims in Rule 60(b)(6) motions to the district court. The motions are improper attempts to circumvent the procedural requirements of AEDPA.”

Back to the Well is Just Fine: In the 7th Circuit, however, a prisoner who filed reconsideration on denial of his First Step Act Section 404 motion chalked up a procedural win. Within the 14 days allowed for filing a notice of appeal after his district court denied him a sentence reduction, William Hible filed a motion asking the district judge to reconsider his denial. The judge denied the motion, and Bill filed his notice of appeal, again within 14 days of the denial. The government argued the notice was late, because a motion for reconsideration doesn’t stop the appeal deadline from running.

Last week, the 7th Circuit agreed with Bill. The 7th observed that while the Federal Rules of Criminal Procedure lack any parallel to the Federal Rules of Civil Procedure 59, the Supreme Court “has held repeatedly that motions to reconsider in criminal cases extend the time for appeal. But under the Sentencing Reform Act of 1984, only Criminal Rules 35 and 36 offer any prospect of modification by the district judge. Rule 36 is limited to the correction of clerical errors. Under Federal Rule of Appellate Procedure 4(b)(5), a motion under Rule 35 does not affect the time for appeal.

 timewaits210924The government argued these rules govern sentence reduction proceedings, but the 7th disagreed. The Circuit said the First Step Act authorizes reduction of a sentence long after the time allowed by Rule 35. Thus, “the First Step Act’s authorization to reduce a prisoner’s sentence is external to Rule 35,” so the provision in Rule 4(b)(5) about the effect of Rule 35 motions does not apply here. A reconsideration motion in a 404 proceeding thus stops the running of the time to appeal, and Hible’s notice of appeal was timely.

Rouse v. United States, Case No. 20-2007, 2021 U.S. App. LEXIS 27795 (8th Cir., September 16, 2021)

United States v. Hible, Case No. 20-1824, 2021 U.S. App. LEXIS 27548 (7th Cir., September 14, 2021)

– Thomas L. Root

Resentencing Good Fortune Can’t Be Bootstrapped Into a New 2255 – Update for February 8, 2021

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GOING BACK TO THE WELL

nogoingback210208Any federal prisoner who has filed a post-conviction habeas corpus motion under 28 USC § 2255 knows that the § 2255 remedy – a powerful way to get as conviction overturned or sentence vacated – is pretty much a one-and-done thing: you can’t file a second § 2255 without permission from a court of appeals (pursuant to 28 USC § 2244). Getting that permission is a pretty tall order, requiring that you show there’s a new Supreme Court decision that the Court has decided should be applied retroactively to cases already decided, or you have some newly-discovered evidence that is so boffo that the jury would have acquitted you and the judge himself would have driven you home.

Charlie Armstrong thought he had found a work-around that would let him file a second § 2255 without having to jump through the § 2244 hoop. After being convicted and imprisoned on a marijuana charge, Charlie found himself to be the beneficiary of the Sentencing Commission’s 2014 reduction of drug-crime scoring for Guidelines sentence. The change was essentially an across-the-board reduction of two levels, and people already sentenced were allowed to apply two their sentencing judges for discretionary resentencing applying the 2-level reduction under the procedure laid out in 18 USC § 3582(c)(2).

After his conviction but before the 2014 Guidelines reduction, Charlie filed a § 2255 motion alleging ineffective assistance of trial and appellate counsel. While the § 2255 motion was pending, the Sentencing Commission adopted Amendment 782, and after Charlie applied to his sentencing court, his judge cut his sentence by 25%.

mulligan190430Some time later, the district court got around to denying Charlie’s § 2255 motion (which, alas, is the fate of most such motions). Charlie promptly filed a second § 2255, challenging his newly-reduced sentence on the basis of ineffective assistance of his attorney. Charlie explained that he didn’t need § 2244 permission to file the new motion, because his 2-level reduction was a new, intervening judgment giving him the right to challenge the new sentence with a § 2255, essentially giving him a § 2255 mulligan.

The district court disagreed, and dismissed the new § 2255 petition as a second or successive motion.

The 2010 Supreme Court Magwood v. Patterson decision held that if “there is a ‘new judgment intervening between the two [§ 2255] petitions, an application challenging the resulting new judgment is not second or successive.” With this opinion in hand, Charlie appealed the district court’s denial, arguing his 2-level reduction was the exactly the kind of new judgment Magwood had in mind.

doover210208Last week, the 11th Circuit turned him down. The Circuit said that in Magwood, the sentencing court “conducted a full resentencing and reviewed the aggravating evidence afresh,” the 11th said, giving the sentencing judge a chance to commit new errors or to repeat the same errors as in the original sentence. But a § 3582(c)(2) sentence reduction “does not authorize a sentencing or resentencing proceeding.” Instead, it simply “provides for the ‘modification of a term of imprisonment’ by giving courts the power to ‘reduce’ an otherwise final sentence in circumstances specified by the Commission.”

Armstrong v. United States, Case No 18-13041, 2021 U.S. App. LEXIS 3265 (11th Cir., February 5, 2021)

– Thomas L. Root

Sotomayor Unhappy With 11th Circuit’s Need for Speed – Update for June 16, 2020

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JUSTICE SOTOMAYOR WOODSHEDS 11th CIRCUIT ON § 2244 OPINIONS

Alone among the federal circuit courts of appeal, the 11th has a practice of publishing its decisions on inmates’ 28 USC § 2244 motions seeking the right to bring a second-or-successive § 2255 motion.

oneanddone200616A little background: Every convicted defendant has the right to file one motion to set aside the conviction or sentence under 28 USC § 2255, the federal statute that controls how a petition for writ of habeas corpus challenging convictions is brought in the federal system. The filing is subject to strict time limits, and once an inmate files a § 2255 motion and has that motion decided on the merits, he or she cannot bring another unless some tough-to-get permission is first granted by a federal court of appeals.  Like March Madness, this freedom tourney is “one and done.”

To get that permission, a defendant files a motion under 28 USC § 2244 for permission to file a second-or-successive § 2255. Permission is only granted in limited, well-defined circumstances. The § 2244 proceeding is a quickie: the appellate court is to decide the motion in 30 days, leaving the court little time to consider a complex inmate application. The government rarely is permitted to file an opposition to the request. Any denial of an inmate’s § 2244 motion cannot be appealed, reconsidered or taken to the Supreme Court. What is more, the appeals court has to decide it within 30 days of filing, 

Some circuits make it even tougher. In the 11th Circuit, an applicant must confine his or her entire legal argument to a single-page form. To make matters worse, the 11th Circuit publishes its decisions on § 2244 motions.

speeddating200616“Publishes its decisions?” you ask. “How can that be a bad thing? Doesn’t it help future filers by explaining the Court’s position on the issues that may be raised?”

That is true, but the problem is that the courts publish everything, as long as “publish” has a small “p.” When a court Publishes a case with a capital “P,” that means that the case becomes precedent. All district courts in the circuit must follow the precedent, and the court of appeals itself cannot reverse or abandon the precedent unless the court does so in an en banc proceeding. What’s more, the holdings don’t just bind § 2244 filers. They will bind future litigants on direct appeal as well.

(By the way, I use the capital “P”/small “p” for illustration only.  It is not a term of art in law).

Thus, published decisions that are binding on future litigants (including those on direct appeal) are being decided on the sketchiest of records, in a judicial version of “speed dating.”

Last week, Justice Sonia Sotomayor issued a rare concurring statement in a decision denying certiorari to an appellant who had been bound by an 11th Circuit § 2244 denial. Michael St. Hubert argued on appeal that his Hobbs Act robberies were not “crimes of violence” that could support convictions under 18 USC § 924(c) for using a gun during their commission. The issue is quite a live one after last summer’s United States v. Davis. But Mike and several other defendants were shut out by the Circuit because it had already settled the question they raised in its § 2244 proved.

25words200616Justice Sotomayor suggested that the appellate court’s § 2244 practice “raises a question whether the Eleventh Circuit’s process is consistent with due process.” She wrote, “In sum, the Eleventh Circuit represents the ‘worst of three worlds.’ It “publishes the most orders, adheres to a tight timeline that the other circuits have disclaimed,” and “does not ever hear from the government before making its decision.” In this context, important statutory and constitutional questions are decided (for all future litigants) on the basis of fewer than 100 words of argument.”

The Justice urged the 11th Circuit to adopt procedures that “better accord with basic fairness—and would ensure that those like [this defendant] would not spend several more years in prison because of artificially imposed limitations like 100 words of argument.”

United States v. St. Hubert, 2020 US LEXIS 3146 (Supreme Ct. June 8, 2020)

– Thomas L. Root

Melon Thumping at the Supreme Court – Update for April 2, 2020

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SCOTUS PUNTS ON SUCCESSIVE 2255 MOTION CASE

thumpmelon200402The Supreme Court last week refused to hear a challenge to 28 USC § 2244, the statute governing when prisoners should be permitted to file a second or successive habeas corpus motion under 28 USC § 2254 (for state prisoners) or 28 USC § 2255 (for federal prisoners). The denial is noteworthy for Justice Brett Kavanaugh’s published statement that the high court should settle a circuit split on the issue the next time a similar case comes before it.

Section 2244 states that a second or successive habeas corpus application filed under § 2254 must be dismissed unless it meets one of two very narrow exceptions, being based on a new Supreme Court retroactive constitutional ruling or on newly-discovered facts that just about guarantee the petitioner would have been acquitted by a jury. Like the Biblical eye-of-the-needle, it’s a pretty tight standard to squeeze through.

Although § 2244 by its express terms applies to § 2254 motions, federal appellate courts have traditionally interpreted the provision to apply to § 2255 motions as well.

Ed Avery filed a successive § 2255 motion, but the district court dismissed it based on his failure to get appellate court permission to file under 28 USC § 2244. He appealed to the 6th Circuit, which upheld the dismissal in an unpublished opinion. Six federal courts have ruled that the § 2244 dismissal statute applies to § 2255 motions. But last fall, the 6th Circuit flipped on the issue, holding in a published opinion that § 2244 clearly did not apply to a § 2255 motion.

In the appellate court world, a published opinion becomes precedent that binds all courts, even three-judge panels on the Court of Appeals. An unpublished opinion, along with about $5.00, will get you a venti latte at Starbucks. Ed, no latte drinker, wanted the published opinion to apply to his case, too. Having no other avenue, he went to the Supreme Court.

ventilatte200402An influential Washington, D.C., law firm took up the battle for Ed, arguing in a petition for writ of cert that the 6th Circuit’s published contrary ruling created a circuit split that called for resolution. He faced no pushback: the government had already filed a brief in the 6th Circuit saying it agreed that 28 USC § 2244 does not apply to § 2255 motions.

Predicting what cases the Supreme Court will decide to hear is more of an art than a science. The issue can be one the Court would like to decide, but it may still decline to review a case if the justices don’t think the facts of the case are quite right. It’s kind of like thumping melons in the produce section to decide which one is ready to eat. As you get better at it, you can find a good one more often. But in the end, it’s still how you hear the “thump” on any given day.

The Supremes decided for whatever reason that Ed’s case was not the right one to review in order to resolve the circuit split. Nevertheless, Justice Kavanaugh noted in a separate statement (which in itself is unusual on a denial of certiorari) that “[i]mportantly, the United States now agrees with the Sixth Circuit that ‘Section 2244(b)(1) does not apply to Section 2255 motions’ and that the contrary view is ‘inconsistent with the text of Section 2244.’ In other words, the Government now disagrees with the rulings of the six Courts of Appeals that had previously decided the issue in the Government’s favor. In a future case, I would grant certiorari to resolve the circuit split on this question of federal law.”

Avery v. United States, 2020 U.S. LEXIS 1651 (certiorari denied March 23, 2020)

– 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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