Tag Archives: 28 usc 2255

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

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

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

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