Tag Archives: 28 usc 2255

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

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

More Speed Bumps for Post-Conviction Speedy Trial Act Claims – Update for December 19, 2019

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ANOTHER CIRCUIT QUESTIONS WHETHER SPEEDY TRIAL ACT VIOLATION SUPPORTS 2255 MOTION

The District of Columbia Circuit has become the latest in a line of courts of appeal to hold that a defendant claiming in a 28 U.S.C. § 2255 motion that his lawyer was ineffective for not raising a Speedy Trial Act issue faces a nearly impossible task of showing he was prejudiced by the error.

This guy is speedy. The STA? Not so speedy.
This guy is speedy. The STA? Not so speedy.

Juan McClendon was convicted after a marathon case lasting over four years and four separate trials. He filed a § 2255 petition complaining that his lawyer was ineffective for not filing a Speedy Trial Act motion.

If an STA motion is successful, the trial court must dismiss the indictment, but may do so with or without prejudice. “Without prejudice,” of course, means that the government is free to reindict, which it almost always does.

Juan argued that his lawyer should have raised the STA and gotten a dismissed without prejudice, because the government might not have sought a new indictment. The district court disagreed, and denied Juan’s § 2255 motion.

speedy160523Last week, the D.C. Circuit agreed, holding that “under the circumstances of this case, failure to obtain a dismissal without prejudice under the STA does not constitute Strickland prejudice. We acknowledge that a dismissal without prejudice forces the government to reindict the defendant in order to secure a conviction. We acknowledge that the government may not be willing to do so in every case, and circumstances outside of the government’s control may preclude it from doing so. McClendon’s argument does not meet that standard. He fails to recognize that it would be the exceedingly rare case in which a defendant could show a reasonable probability that, absent counsel’s failure to obtain a dismissal without prejudice, the outcome of the criminal prosecution would be different.”

The decision continues the emasculation of the STA. Five other circuits have handed down similar holdings, the 3rd, 4th, 6th, 10th and 11th.

United States v. McLendon, 2019 U.S. App. LEXIS 36522 (DC Cir. Dec. 10, 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

10th Circuit Says Right to § 2255 Hearing Just Requires Solid Claim, Not An Overwhelming Proof – Update for September 3, 2019

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SAYIN’ IT DON’T MAKE IT SO

aintso190903Over 50 years ago, the Supreme Court made it clear in Machibroda v. United States that a hearing should be held whenever a post-conviction motion under 28 USC § 2255 does not “conclusively show that the prisoner is entitled to no relief.”

Yet, § 2255 more than a half century later, hearings remain as rare as hen’s teeth, as district courts routinely contort themselves and the record to deny 2255s based on tissue-thin justifications.

The 10th Circuit last week gave district courts a well-needed wake-up call that a defendant is not proven conclusively wrong simply because a defense lawyer’s affidavit says so.

Larry Herring filed a 2255 claiming his trial attorney had been ineffective for not filing a notice of appeal after Len asked him to do so. His former attorney responded with an affidavit saying that he had told Larry that he did not do appeals, and had given his client a list of lawyers to contact. The lawyer stated emphatically that “I was never asked by Mr. Herring to file an appeal on his behalf.”

Citing that affidavit and arguing that the court told Lenny at sentencing about his appeal rights, the Government argued that Len’s complaint was meritless. The district court agreed.

justsayin190903Last week, the 10th Circuit reversed, reminding courts that attorney affidavits contradicting the defendant do not justify denial: “When a district court refuses to grant an evidentiary hearing,” the Circuit ruled, “first, we ask whether the defendant’s allegations, if proved, would entitle him to relief… Here, we hold that, if true, the facts Herring alleged in his section 2255 motion to support his ineffective assistance of counsel claim would entitle him to relief. Therefore, the record does not ‘conclusively show’ that Herring is entitled to no relief, and, accordingly, the district court abused its discretion by failing to hold an evidentiary hearing to resolve Herring’s section 2255 motion.”

As for the argument that the district court advised Herring of his rights and defense counsel gave him some appellate attorneys’ names (none of whom he ever contacted), the 10th said, “Trial attorneys cannot outsource their constitutional obligation to advise their clients about filing an appeal nor their duty to make a reasonable effort to discover their clients’ wishes. Once the duty to consult is invoked by a defendant expressing interest in appealing, trial attorneys must properly advise their client and assess their client’s wishes before withdrawing from the case.”

Herring v. United States, Case No. 18-4023, 2019 U.S. App. LEXIS 25759 (10th Cir. Aug. 27, 2019)

– Thomas L. Root

Calling a Rose a Rose – Update for July 24, 2019

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A ROSE BY ANY OTHER NAME…

“What’s in a name?” Shakespeare wrote. So why does it matter what an inmate filer calls his or her post-conviction motion under 28 USC §  2255?

rose190724A month before the statutory one-year deadline for filing his § 2255 motion, Richie Elam filed a document he called “Defendant’s Motion Requesting SPECIAL DISCOVERY HEARING to Determine if Level of Court-Appointed Representation was ADEQUATE, Pursuant to the Criminal Justice Act (18 USC § 3006A).” In the all caps-laden motion, Richie requested a hearing concerning whether he had received adequate representation. He also said his guilty plea was given under duress and contended that counsel coerced the plea.

After the 2255 deadline had passed, the district court held Rich had failed to establish that his case required appointment of counsel, saying “a defendant is not entitled to go on a fishing expedition prior to filing a § 2255 motion.” Richie then asked the court to construe the weirdly-titled motion as a § 2255 motion, but the district court refused to do so, saying that Richie knew that whatever his discovery request might have been, it “was not… a § 2255 motion.”

Richie appealed. Last week, the 7th Circuit granted the appeal and reinstated the motion Rich had filed as a § 2255 motion. The Court said dismissal of a first 2255 “is a particularly serious matter, for that dismissal denies the petitioner the protections of the Great Writ entirely, risking injury to an important interest in human liberty.” Because pro se habeas petitions are “not held to the same stringent and rigorous standards as are pleadings filed by lawyers,” the appellate panel wrote, “it is the substance of the relief sought by a pro se pleading, not the label that the petitioner has attached to it, that determines the true nature and operative effect of a habeas filing.”

illegible2255190724While the decision to recharacterize a motion is discretionary, here the district court abused that discretion. District courts must “determine the true nature of a pleading by its substance, not its label.” Here, Richie’s discovery motion, “although inartfully drafted, stated enough that it should have been liberally construed as a § 2255 motion. Rich asserted that his constitutional right to effective assistance of counsel had been violated, resulting in a deprivation of his liberty. He “implicitly stated seven bases for his [ineffective assistance of counsel] claim” and maintained that his guilty plea was entered under duress. Liberally construed, that is enough to qualify Elam’s motion as a § 2255 motion.”

United States v. Elam, 2019 U.S. App. LEXIS 2086 (7th Cir. July 15, 2019)

– Thomas L. Root

3rd Circuit OKs § 2255 Amendment as “Relating Back” – Update for July 18, 2019

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3RD CIRCUIT EXPLAINS WHEN 2255 AMENDMENT “RELATES BACK”

This may be an especially bad time to be talking about going back, but our topic has to do with an amendment going back (we call it relating back) to the date of the original filing. “Relating back” is important where statutes of limitations might otherwise preclude raising a claim.

go-back-security-sign-k-0138-lRule 15(a) of the Federal Rules of Civil Procedure lets a 28 USC § 2255 petitioner amend his or her petition, provided that the one-year deadline for raising issues (under 28 USC 2255(f)) has not yet passed or, if it has, if the amendment “relates back” to the original petition. When I was in law school, years before I had even heard of a § 2255 motion, the “relation back” standard of FRCivP 15(c) made no sense to me. My understanding hasn’t improved much in 45 years.

Two weeks ago, the 3rd Circuit tried to make sense of it. A § 2255 petitioner had filed a motion complaining that her trial and appellate counsel had been ineffective by, among other things, failing to argue at sentencing or on appeal, that the Presentence Report included certain errors, including an errant calculation with respect to the number-of-victims enhancement. In her amendment, the petitioner provided an explanation as to why her counsel was ineffective by failing to raise the errors.

In particular, petitioner said she would not have been eligible for the number-of-victims enhancement under the versions of the Guidelines that were in effect at the time of her alleged crime. According to petitioner, the PSR the district court relied upon at sentencing used the 2012 version of the Guidelines, which contained a broader definition of who may be considered a “victim” for purposes of determining eligibility for the number-of-victims enhancement. She said this made her eligible for the enhancement, and receiving a higher Guidelines range than she would have received under the 2006 and 2007 Guidelines.

The 3rd Circuit said this was a perfectly fine amendment. “These allegations merely are amendments that restate the original claim with greater particularity or amplify the factual circumstances surrounding the pertinent conduct, transaction, or occurrence in the preceding pleading,” and therefore the allegations contained in the motion to amend “fall within Rule 15(c)” and relate back to the date of petitioner’s initial habeas petition.”

The decision is a broad procedural holding in favor of § 2255 movants. It basically approves filing a skeleton § 2255 motion, and putting meat on its bones in a later amendment, even if the amendment well after the § 2255(f) deadline.

United States v. Santarelli, 2019 U.S. App. LEXIS 20109 (3rd Cir. July 5, 2019)

– Thomas L. Root

Did You Mean It When You Said It? – Update for July 12, 2019

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I SAID IT, BUT I DIDN’T MEAN IT

Just about anyone who has pled guilty has suffered through a  change-of-plea hearing under Rule 11 of the Federal Rules of Criminal Procedure – in which they were required to say they were happy with their lawyers, they fully understood the charges, and that no one had pressured them to sign the deal. Some of the answers are uninformed: How, for example, does anyone know whether defense counsel got things right? Others are outright lies: of course, counsel or family or even the government has applied pressure that would make Tommy Torquemada envious.

hitoverhead190712Later, when the defendant discovers his lawyer’s incompetence or the government’s connivance, he or she files a post-conviction habeas corpus motion under 28 USC 2255. And then, the defendant gets hit over the head with answers given at the Rule 11 hearing. No one reasonably believes that the Rule 11 plea answers have any validity, but that’s the game.

When Sergio Murillo signed his plea agreement, he had his lawyer get a lot of references to deportation taken out of the document. His lawyer bargained his charge down to conspiracy, which she told him would not lead to automatic deportation. But the plea agreement still had Sergio agreeing in one section that “because removal and other immigration consequences are the subjects of a separate proceeding, [Appellant] understands that no one, including [Appellant’s] attorney or the District Court, can predict to a certainty the effect of [Appellant’s] conviction on [Appellant’s] immigration status. [Appellant] nevertheless affirms that [Appellant] wants to plead guilty regardless of any immigration consequences that [Appellant’s] plea may entail, even if the consequence is [Appellant’s] automatic removal from the United States.”

Later, Sergio learned he would be deported, and he filed a 2255 motion arguing that his lawyer was ineffective for telling him otherwise. He wanted to take his plea back and go to trial. The district court cited what Sam had agreed to in the plea agreement, and denied the 2255 without a hearing.

don-t-read-too-much-into-it-you-ll-get-nothing-outTwo weeks ago, the 4th Circuit reversed, and ordered the district court to hold an evidentiary hearing. The Court ruled that the district court erred by giving dispositive weight to the one sentence in Sergio’s plea agreement. Instead of weighing evidence that Sam would have rejected the plea agreement had he known it required deportation against evidence that he would have accepted it nonetheless, the district court found that single sentence “dispositive.”

“Giving dispositive weight to boilerplate language from a plea agreement is at odds with Strickland [v. Washington]’s fact-dependent prejudice analysis,” the Circuit ruled. “To determine whether a defendant was prejudiced by an attorney error, Strickland requires courts to undertake an individualized examination of the proceedings in which the error is alleged… A categorical rule affording dispositive weight to a prior statement is ill suited to an inquiry that demands a ‘case-by-case analysis.’”

United States v. Carillo Murillo, 2019 U.S. App. LEXIS 18725 (4th Cir. June 24, 2019)

– Thomas L. Root

Loopholes Are Like the Tooth Fairy – Update for January 22, 2019

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CONFUSING WISHES FOR FACTS

I had the unpleasant task last week of telling a parent that her daughter had no procedural means of attacking her 6-year old conviction and sentence. The mother replied, ”But there has to be a loophole! There’s always a loophole!”

toothfairy190122Loopholes are like the Tooth Fairy. They’re fun to believe in, and pretending they exist is harmless enough. But you don’t want to factor the Tooth Fairy’s largesse into your retirement planning for one simple, very good reason. The Tooth Fairy doesn’t exist.

Likewise, contrary to the exclamation of my inmate’s mother, there does NOT have to be a loophole. Not confusing wishes for facts was the hard lesson Jason Lund learned last week.

In 2008, Jason got an enhanced sentence under 21 USC 841(b)(1)(A) because a death resulted from use of the drugs he was convicted of selling. But in 2014, the Supreme Court held in Burrage v. United States that finding a defendant guilty of the “death results” penalty requires proof that the harm would not have occurred in the absence of – that is, but for – the defendant’s conduct.

Jason filed a 2255 motion in 2016. But 28 USC 2255(f) sets strict deadlines for filing the motion, in this case one year from the date Burrage was decided or a year after discovering new evidence. Jason was well beyond both deadlines. But in 2013, the Supreme Court ruled in McQuiggin v. Perkins that if an inmate can show he or she is actually innocent, it “serves as a gateway through which a petitioner may pass whether the impediment is a procedural bar… or… expiration of the statute of limitations. Jason argued that the Burrage ruling made him actually innocent of the enhanced sentence, so his untimely filing did not matter.

Some of the people who say this really are. For others, it's just procedural...
Some of the people who say this really are. For others, it’s just procedural…

The actual innocence gateway exception is “grounded in the ‘equitable discretion’ of habeas courts to see that federal constitutional errors do not result” in innocent people being imprisoned. To establish actual innocence, a movant must show that it is more likely than not that no reasonable juror would have found him or her guilty beyond a reasonable doubt, if the new evidence or new legal holding were applied.

Last week, the 7th Circuit ruled that Jason was too late. It held that the actual innocence exception certainly does apply where a petitioner has new evidence, like DNA evidence, that proves him innocent. But “actual innocence” cannot be used to excuse untimely filing where a subsequent change to the scope of a law renders the conduct for which a movant was convicted to be no longer criminal.

The problem, the 7th said, was that Jason was trying to use Burrage both as his claim for actual innocence and his claim for relief on the merits. A petitioner’s actual innocence claim and claim for relief on the merits cannot be the same. If it could, “it would completely undermine the statute of limitations for bringing initial 2255 motions within one year from the date a new right is recognized by the Supreme Court.”

gateway190122The Court explained the actual innocence exception is merely a gateway through which a court can consider a petitioner’s otherwise barred claims on their merits. The whole idea is that a petitioner will have underlying claims separate from the actual innocence claim, and will use the actual innocence claim solely to excluse an untimely filing. The Supreme Court has not recognized a petitioner’s right to habeas relief based on a stand-alone claim of actual innocence.

The point of the exception, the Circuit said, is to ensure that federal constitutional errors do not result in innocent people being locked up. This suggests that the underlying claim must be a constitutional claim, rather than a statutory claim like Burrage.

Lund v. United States, 2019 U.S. App. LEXIS 1603 (7th Cir. Jan. 17,  2019)

– Thomas L. Root

“You’re Screwed” Writ Large – Update for January 30, 2018

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8TH CIRCUIT RULES CORAM NOBIS IS A 2255 BY A DIFFERENT NAME

The history of what the law calls “extraordinary writs” is a rich one. Time was, courts of law could only award money damages. Now money’s nice stuff, but sometimes you need more.

equity180130Your neighbor’s tree is about to fall on your house and he won’t do anything about it? Knowing that after your house is crushed one dark and stormy night (with you in it) that your heirs can collect some money does not provide a lot of what insurance companies like to call “peace of mind.” What you need is a court order that your neighbor has to cut it down. Back in the bad old days of segregation, a black family would have had no remedy in a court of law: money damages won’t do when you yearn for liberty and equality.

Because of the mismatch between need and remedy, the English – back in the days of yore – developed courts of equity. Equity courts were the equal of law courts, but for their remedies. These courts originally issued prerogative writs, court orders, with such great names as certiorari, mandamus, quo warranto, audita querela, and, of course, the Great Writ itself, habeas corpus. These remedies, as well as the one most have heard of, injunctive writs (or just injunctions) survive today.

Everyone knows about the federal prisoners’ motion under 28 USC 2255, a statutory right granted to prisoners to stand in the place and stead of the constitutionally-protected writ of habeas corpus. But you cannot hang around a prison law library too long without hearing that a thundering herd of extraordinary writ motions are there, just waiting to be filed besides the old reliable 2255. In fact, there is a law called the All Writs Act, that confers on federal courts the right to gin up just about any remedy the court can imagine, sort of a remedy version of making the punishment fit the crime. Court-order busing, taking control of labor unions, and court-ordered state prison emptying are examples of the All Writs Act in action.

vader180130For federal prisoners, however, Congress intended through 28 USC 2255, as well as the Antiterrorism and Effective Death Penalty Act (a bill that could have been named by Darth Vader himself) to limit prisoner access to traditional extraordinary writs as much as possible. Last week, the 8th Circuit reminded us of how effective the AEDPA has been.

The Circuit slapped further restrictions on the writ of error coram nobis, an old common law writ which may be filed only after the petitioner is out from under his sentence and supervised release to claim he was actually innocent. Keith Baranski got 60 months on a firearms charge. While locked up, he filed a 2255 and lost. After he was released and finally got off paper, he filed a coram nobis petition. It was denied, and Keith appealed.

equitycourt180130The 8th ruled that while 28 USC 2244 only required that a petitioner get Court of Appeals approval for a second-or-successive 2255 motion, the limits set out in 2255(h) applied to any petitions filed after a 2255, even a coram nobis. In other words, if a petitioner previously filed a 2255 motion, a coram nobis petition will be tossed unless it relies on newly discovered evidence that would establish by clear and convincing evidence that no reasonable jury would have convicted; or on a new rule of constitutional law made retroactive…

The Circuit said, “It is widely accepted that custody is the only substantive difference between coram nobis and habeas petitions… Given that coram nobis is an extraordinary remedy available at the far end of a post-conviction continuum only for the “most fundamental” errors, it would make no sense to rule that a petitioner no longer in custody may obtain coram nobis relief with a less rigorous substantive showing than that required by limitations for successive habeas corpus and § 2255 relief.”

United States v. Baranski, Case No. 16-1399 (8th Cir. Jan. 23, 2018)

– Thomas L. Root

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Thinking About Stuff That’s Not Interesting – Update for January 17, 2018

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ANOTHER PROCEDURAL TRAP FOR THE UNWARY

It’s because we’re human… or maybe because we all have the attention span of a gnat. But everybody’s interested in substance; no one cares about procedure.

tedious180118Substantive law is interesting: does a gun in the closet of a marijuana farmer support an 18 USC 924(c) mandatory 5-year consecutive sentence? If you break into a building housing both a pizza joint and a beauty parlor, and pilfer both stores, is that a single burglary or two for Armed Career Criminal Act cases? The issues are understandable, fact-laden and, frankly, interesting.

But who cares about the niceties of whether a Rule 60(b) motion after denial of a 28 USC 2255 petition is a legitimate claim about the integrity of the post-conviction proceeding or a second-or-successive 2255? About whether an appeal/post-conviction waiver in a plea agreement encompasses a motion for sentence reduction? Talk about counting angels on the head of a pin! This stuff is, as a judge once intoned at us during a less-than-effective cross-examination, is te-ee-ee-dious.

angels170726OK, it’s tedious. But’s also very consequential. Consider the world of post-judgment motions. Most everyone knows that filing a motion under Rule 60(b) of the Federal Rules of Civil Procedure to try to resurrect a 2255 motion is fraught with procedural peril. After the 2005 Supreme Court decision in Gonzalez v. Crosby, a Rule 60(b) motion may well be considered a second-or-successive 2255, unless it is narrowly focused on a defect in the 2255 proceeding itself.

But how about a Rule 59(e) motion? F.R.Civ.P. 59(e) lets the loser file a motion to alter or amend the judgment within 28 days after the judgment. One of the benefits of a timely-filed 59(e) motion is that it stops the clock running on the time to file a notice of appeal. It is almost a no-brainer: file a 59(e), and you can buy a lot of time before the appeal is due.

John Uranga is a Texas state prisoner. States, like the Feds, all have procedures for post-conviction challenges to criminal convictions. John filed his state petition, and was shot down. He appealed through the state court system and lost at every step.

apple160516When that happens, a state prisoner has the right to file a motion in U.S. district court under 28 USC 2254. This sort of gives a state prisoner a second bite of the apple, although the standard for a federal court reversal of a state court denial is pretty high. John was in the U.S. District Court for the Northern District of Texas on his 28 USC 2254 motion, and – just like he had in the state system – the District Court ruled against him. After he lost his 2254 proceeding, he filed a 59(e) motion, arguing that the court should have considered an amendment he had filed to the 2254 motion before ruling against him.

Last week, the 5th Circuit made the business of filing a 59(e) motion a lot riskier. Pointing out that a 59(e) can be a second-or-successive post-conviction motion just as easily as can be a Rule 60(b) motion, the Court held that if it decides the motion is “a timely filed motion to alter or amend the judgment under Federal Rule of Civil Procedure 59(e), then the deadline for filing a notice of appeal would be tolled until the entry of the order disposing of that motion. However, a purported Rule 59(e) motion that is, in fact, a second or successive Section 2254 application is subject to the restrictions of the Antiterrorism and Effective Death Penalty Act and would not toll the time for filing a notice of appeal.”

John was lucky: the appellate court said his 59(e) motion was legit. But there’s a caution here for inmates filing 2254s and 2255s: a 59(e) motion is not necessarily a time-stopper.

Uranga v. Davis, Case No. 15-10290 (5th Cir., Jan. 12, 2018)

– Thomas L. Root

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