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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Desmond Rouse and several co-defendants were convicted based on what they called “outdated, false, misleading, and inaccurate” forensic medical evidence, testimony that had since been recanted, and juror racism.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

Procedure Talks, Substance Walks – Update for June 1, 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.

DOES INNOCENCE MATTER? NOT MUCH.

I had a recent email exchange with a guy who, years after his conviction, believes he has the golden bullet to convince his judge that he should be allowed to withdraw his plea. When I pointed out he had no procedural route for raising the argument, given that he’s known about the issue for years, he responded that all he has to do is convince the judge of the righteousness of his claim, and the procedure will take care of itself.

innocent210504But procedure never takes care of itself. That is to say, procedure rules over substance. Years ago, Professor Henry J. Friendly complained that habeas corpus procedure had gotten so hidebound that a petitioner’s claim that he or she was actually innocent simply didn’t matter. The title of the law review article said it all: Is Innocence Irrelevant: Collateral Attack on Criminal Judgments. Even after Friendly’s now-famous 1970 article, the Supreme Court was unable to untether actual innocence from procedure: in Herrera v. Collins, it held that “a claim of ‘actual innocence’ is not itself a constitutional claim, but instead a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits.  In other words, a prisoner who is actually innocent must show a constitutional violation to obtain relief.  As dissenting Justice Blackmun complained, the only principle this position espouses is “the principle that habeas relief should be denied whenever possible.”

Two cases this week reminded the defendants that the righteousness of their causes paled in significance next to the “angels-on-the-head-of-a-pin” arguments over procedure. In an 11th Circuit case, Sandchase Cody (we’ll call him “Sandy”) initially won his § 2255 motion, having proven to the sentencing court that some of his prior state convictions should not count as Armed Career Criminal Act predicates.

But his victory turned to ashes at resentencing. Initially, Sandy had been sentenced to 294 months for drug distribution and a concurrent 294 months for the ACCA charge. But instead of resentencing on both counts, the judge merely cut his ACCA count to 120 months – the statutory max without the ACCA – keeping the 294 months on the drug count.

angels170726“Unfair!” Sandy cried, apparently laboring under the misappreciation that fairness actually mattered. He appealed, arguing he should have been resentenced on both counts. But because the appeal only challenged the resentencing, not his favorable § 2255 decision, Sandy did not ask for a certificate of appealability (COA). He argued to the 11th Circuit that because he was appealing the new sentence – and not the § 2255 decision vacating the prior sentence – a COA was not necessary.

Background: Under 28 USC § 2253, a prisoner may not appeal a “final order in a proceeding under § 2255” unless a circuit justice or judge issues a certificate of appealability, finding that reasonable judges could debate whether the prisoner’s claim has merit. The intent of the COA procedure is to reduce frivolous appeals, just another way that the Antiterrorism and Effective Death Penalty Act has strangled habeas corpus.

Last week, the 11th Circuit dismissed Sandy’s appeal, holding that the COA requirement applies “not only to an appeal from the final order in a proceeding under section 2255 but also to an appeal from an amended criminal judgment, to the extent it raises section 2255 issues.” By contrast, the Circuit said, direct appeal matters that arise after the § 2255 proceeding — for example, an argument that the district court misapplied the sentencing guidelines at a prisoner’s resentencing — do not require a COA. But Sandy complained in his appeal that § 2255 required he get a complete resentencing, not just a resentencing on one count. That was an argument, the 11th said, over the remedies authorized by § 2255. Thus, it was a § 2255 appeal, and it required a COA.

It seems a trifling point, but procedure prevented his argument from being heard.

In the 6th Circuit, on the other hand, the appeals court ruled that a piece of arcane procedure worked for Edres Montgomery. Edres got resentenced under First Step § 404, the retroactive Fair Sentencing Act. But at resentencing, everyone – including Edres’s lawyer – assumed Edres’s Criminal History range was VI (that’s “6” for the Latin-challenged among us).

But it was only a V (that’s a “5”), Edres discovered afterward, so he appealed. The government argued Edres waived his right to appeal it by not objecting at sentencing. This gave the 6th a chance to expound on waiver, forfeiture, and invited error.

A “defendant can only waive a right that he knows of and actively abandons,” the 6th said. When a claim is waived, it is unappealable. “Forfeiture is at the other end of the spectrum… the passive failure to make a timely assertion of a right.” If a defendant forfeits a claim, “Federal Rule of Criminal Procedure 52(b) allows us to consider such unpreserved arguments for plain error.”

errorA160425In the middle is “invited error”, where the defendant contributes in some way to the district court’s error without intentionally relinquishing his rights. Here, Edres invited the error when his own lawyer agreed Edres’s Criminal History was VI. This left Edres “more responsible for the district court’s error than when he merely forfeits an argument, but he had not made the conscious choice to waive the argument.” Thus the appeals court said, “the consequences fall in between those for forfeiture and waiver… [and while] we do not review invited errors as a matter of course, but we are also not foreclosed from reviewing them; instead, we review for plain error when “the interests of justice demand” it.

The Court said that under a Rule 52 “plain error” analysis, the mistake should be corrected.

United States v. Cody, Case No. 19-11915, 2021 U.S. App. LEXIS 16019 (11th Cir. May 28, 2021)

United States v. Montgomery, Case No. 20-1201, 2021 U.S. App. LEXIS 15382 (6th Cir. May 24, 2021)
– Thomas L. Root

Twenty-Five Years of Mischief Is Enough – Update for May 4, 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.

HAPPY ANNIVERSARY TO TWO LOUSY LAWS

A quarter-century ago, Congress enacted a pair of laws that severely restricted the ability of prisoners to raise constitutional challenges against conditions of confinement, as well as challenge unjust and wrongful convictions. Over the last 25 years, this pair of laws — the Prison Litigation Reform Act (PLRA) and the Antiterrorism and Effective Death Penalty Act (AEDPA) — “have all but closed the federal courthouse doors to life and death lawsuits,” the ACLU complained last week in commemorating dual anniversaries of enactment of the laws.

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First, the AEDPA: “This pernicious, dizzyingly complicated law created a minefield of procedural barriers and deadlines that severely limited state prisoner use of federal habeas corpus,” the ACLU said last week. What’s more, it placed severe restrictions on the filing of 28 USC § 2255 habeas corpus motions, especially successive ones. The AEDPA, according to the Washington Post, was “the first time in centuries that the legislature of a western democracy had put restrictions on the “Great Writ.”

innocent210504The AEDPA took away a lot of the authority of federal judges to do their jobs. “The law creates a maze of Kafkaesque procedures that create the danger of an incarcerated person’s petition being thrown out at every turn for a failure to follow even the most minute rule,” the ACLU reported, “regardless of whether their claims have merit.”

While having its most restrictive impact on state prisoners, the AEDPA set severe time limits on the filing of 2255 motions, stripped from judges the ability to choose when a successive 2255 was appropriate instead of abusive, and seriously limited a petitioner’s right to appellate review, unless he or she first obtained a certificate of appealability granting permission to appeal.

Congress passed the Prison Litigation Reform Act in 1996, a piece of litigation that – contrary to most laws Washington enacts – has worked all too well. The goal of the PLRA was to reduce the number of lawsuits brought by prisoners, and by that metric, it has been a phenomenal success. But now, many commentators are calling for its demise.

nothing170125Passed as the nation’s prison population was exploding thanks to the war on drugs, the PLRA was supposed to weed out the sort of frivolous prisoner litigation Congress perceived as bombarding the federal courts. As The Appeal described it last week, testimony in hearings on the PLRA “focused on sensationalized and largely mythical claims about ‘a defective haircut by a prison barber, the failure of prison officials to invite a prisoner to a pizza party, and, yes, being served chunky peanut butter instead of creamy variety’. By dismissing real cries for help as frivolous, disingenuous, and opportunist, lawmakers built the PLRA on dehumanizing and inaccurate stereotypes of incarcerated men and women.”

In the 25 years since, it has become clear that the PLRA is reducing prisoner litigation — but not just by targeting frivolous claims. It cut the rate of civil rights lawsuits filed by prisoners by nearly half. “But if the goal was to somehow weed out ‘frivolous’ lawsuits in favor of meritorious claims, the Appeal argued, “then, presumably, there would have been at least some increase in the rate of successful civil rights lawsuits by incarcerated plaintiffs. Not so. Instead, the success rate of civil rights lawsuits for incarcerated plaintiffs steadily dropped after the enactment of the PLRA and despite a recent uptick is nearly identical to the success rate pre-PLRA.”

Among other provisions, the PLRA made exhaustion of remedies mandatory prior to suing. It permitted courts to throw out suits as frivolous prior to requiring an answer. And it required prisoners to pay filing fees by withholding installment payments from commissary accounts, even if the prisoner was indigent. Additionally, the PLRA makes it “hard to find representation by sharply capping attorney fees, creates high barriers to settlement, and weakens the ability of courts to order changes to prison and jail policies,” according to the Prison Policy Initiative.

nothingcoming181018Incarcerated people are still allowed to sue over unlawfully inflicted physical injury, but the PLRA restricts the remedies available in cases where people are alleging only mental or emotional harm. Some courts have interpreted this to mean that people cannot receive money damages for their prison/jail injuries unless they can show that they suffered extremely serious physical injury. Others have found that this provision applies even to Constitutional claims about free speech, religious freedom, discrimination, and due process.

As a Senator, Joe Biden tried to strip the AEDPA of its worst limitation, but President Clinton’s support for the bill doomed the effort. Now, the Post said last week, “lawmakers could consult with defense lawyers, legal scholars, federal judges and prosecutors, repeal AEDPA, and replace it with something more just and fair. The last 25 years have shown the Clinton administration should have listened to Biden in 1995. But, now, Biden’s own administration can lead an effort to fix the problems he predicted, and once tried to prevent.”

ACLU, The Unhappy 25th Birthday of Two Tough-on-Crime Era Laws That Have Deadly Consequences for Incarcerated People (April 27, 2021)

Washington Post, Opinion: Joe Biden fought this destructive law. 25 years later, he can help repeal it (April 27, 2021)

The Appeal, How The Prison Litigation Reform Act Has Failed For 25 Years (April 26, 2021)

Prison Policy Initiative, Slamming the Courthouse Door: 25 years of evidence for repealing the Prison Litigation Reform Act (April 26, 2021)

– Thomas L. Root

Last Week in Washington… – Update for March 11, 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.

ODD COUPLE STRIKE AGAIN; CALL TO REPEAL AEDPA

oddcouple210219A few weeks ago, Senators Richard Durbin (D-Illinois) and Charles Grassley (R-Iowa), the top two guys on the Senate Judiciary Committee, teamed up to introduce the COVID-19 Safer Detention Act (S.312), which would make grant of compassionate release for COVID-related reasons easier and relax the Elderly Offender Program age and sentence limits. Last week, the odd couple was at it again, introducing the Prohibiting Punishment of Acquitted Conduct Act (S.601).

The Act, a similar version of which was introduced last year but died without a vote, would prohibit federal courts from using conduct for which a defendant was acquitted as factors to pump up Guidelines scores.  

nuns170427The problem is this: Donnie Dopehead is charged with two drug counts, one for distributing 100 kilos of marijuana and the other for selling 15 grams of cocaine. The Feds have Donnie dead to rights on the coke: as he sold it to his customers, a busload of nuns was stopped at the light, and they all saw it happen. But the marijuana beef is based on the vague testimony of a demented neighbor with poor eyesight, who – on the witness stand – admits it may have been bales of hay, not marijuana, and the guy unloading it may have been Clarence Crackfiend, not Donnie.

The jury acquits Donnie of the pot, but convicts on the coke.

If Donnie had no prior criminal record, his sentencing range for the cocaine of which he was convicted would be 10-16 months. But at sentencing, the court will also consider the marijuana, if it finds by a preponderance of the evidence that Donnie dealt it. In sentencing law, “preponderance” seems to mean that the prosecutor said it, and that’s good enough for the judge.  With the pot added in, Donnie’s Guideline sentencing range is 51-63 months.

hammer160509The thinking (and I employ that term loosely) is that just because the jury said the government hadn’t proved the pot charge beyond a reasonable doubt didn’t mean that it hadn’t been proved by a preponderance of the evidence. And the lower evidentiary standard, coupled with the loosey-goosey procedural protections of a sentencing proceeding, means that the defendant has little of avoiding a five-year sentence for what should be more like 12 months.

The Prohibiting Punishment of Acquitted Conduct Act, simply enough, would have said in Donnie’s case that the court could sentence on the cocaine, but not the pot.

An identical bill, backed by a long list of conservative and liberal advocacy groups, is being introduced in the House by Reps Steve Cohen (D-Tennessee) and Kelly Armstrong (R-North Dakota).

You may reasonably suspect that this bill, along with the Safer Detention Act and other measures may be rolled together in a larger criminal justice package later this year.

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Meanwhile, a Washington Post article last week kicked off a series on the horror that is the Anti-Terrorism and Effective Death Penalty Act (AEDPA). Back in 1996, Congress took a chisel to habeas corpus, adopting procedural limitations that make arguing the merits of 2254 and 2255 motions – especially second ones – a byzantine nightmare, a “thicket of real through-the-looking-glass shit,” according to one long-time defense attorney.

The Post series will “look at how the AEDPA was passed, how it works in the real world, the injustices it has wrought and what we can do to fix it. The good news is that much of this can be fixed. Congress could repeal or reform the AEDPA tomorrow. And for all the criticism of his criminal justice record — most of it justified — Joe Biden was one of the most vocal critics of the AEDPA’s habeas provisions. The then-senator warned of dire consequences if those provisions passed. History has proved him right.”

S.601, A bill to amend section 3661 of title 18, United States Code, to prohibit the consideration of acquitted conduct at sentencing (March 4, 2021)

Press Release, Durbin, Grassley, Cohen, Armstrong Introduce Bipartisan, Bicameral Prohibiting Punishment Of Acquitted Conduct Act (March 4, 2021)

Washington Post, It’s time to repeal the worst criminal justice law of the past 30 years (March 3, 2021)

– Thomas L. Root

59(e) Motion Not A Trap for the Unwary: Supreme Court – Update for June 2, 2020

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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.

SUPREME COURT HOLDS 59(e) MOTION IS NOT A SECOND BITE OF THE HABEAS APPLE

For the last 2 years, prisoners seeking one final whack at the lawfulness of their convictions or sentences have had to contend with the limitations of a law known by the mouthful “Antiterrorism and Effective Death Penalty Act of 1996.”

secondbiteapple190213Even the name of the Act is strange. No one can be opposed to “antiterrorism.” Well, almost no one. But “effective death penalty?” I suppose an effective death penalty is one that leaves you dead. But what Congress was getting at here was a means of limiting what some lawmakers thought were endless habeas corpus actions brought by the condemned, so that their date with the Grim Reaper could be delayed as long as possible. The AEDPA was intended to limit such collateral attacks, so that execution was more likely to kill the prisoner than old age.

But the practical effect of the AEDPA was to severely limit the right of prisoners to the federal writ of habeas corpus. The Act set hard time limits on filing motions under 28 USC 2254 (for state prisoners seeking federal habeas relief) and 28 USC 2255 (for federal prisoners), and – important for today’s topic – the right to bring a second 2254/2255 motion after the first one has been decided.

There was a time when a prisoner could file as many 2254 or 2255 motions (known as “second-or-successive” motions) as a court would accept before concluding that the prisoner was “abusing the writ.” But the AEDPA turned the equitable and flexible “abuse of the writ” doctrine into a rigid statutory rule. Now, a prisoner seeking to file a second-or-successive 2255 motion must first get permission to do so from the court of appeals, and the circumstances under which permission can be granted are tightly circumscribed by 28 USC 2244.

But water seeks and finds its own level, and in the wake of the AEDPA’s passage, crafty prisoners filed all manner of other motions instead of second-or-successive 2255s. They would file petitions for writs of mandamus or error coram nobis or audita querela, or Rule 60(b) motions, or civil actions. The courts would whack down the efforts as fast as the prisoners filed them, holding that a motion by any other name was in effect a second-or-successive 2255 if it attacked the conviction or sentence in some manner.

whack200602In civil procedure, a motion brought under Federal Rule Civil Procedure 60(b) asks a court to set aside a judgment that is already final, based on any of a variety of reasons (the favorite one probably being due to newly-discovered evidence). Rule 60(b) quickly became an inmate favorite, letting the movant try to reopen a former 2255 proceeding well after the fact because of evidence of some new constitutional violation or even just more evidence on an issue already raised and lost. In 2005, the Supreme Court ruled in Gonzalez v. Crosby that such a motion was really a second-and-successive 2255 prohibited by the AEDPA unless the motion was solely addressed to some infirmity in the 2255 proceeding itself.

Fast forward 15 years to yesterday. Texas prisoner Greg Banister lost his 28 USC 2254 proceeding, in which he challenged his state conviction in federal court after losing in all of the Texas courts. He lost in front of the federal district judge, too, but – having access to both a book of federal civil rules and a typewriter – Greg promptly filed a motion to alter or amend the judgment under Federal Rule of Civil Procedure 59(e). Rule 59(e) gives a party one more chance to convince the district court it was wrong in its judgment, and it stops a judgment from becoming final as long as it was filed on time and remains pending.

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The federal judge, not any more impressed by Greg’s Rule 59(e) motion than it had been by the underlying 2254 petition, denied the motion. Greg then filed his notice of appeal. However, the district court ruled that the Rule 59(e) motion had really been a second-or-successive 2254 motion over which the court had no jurisdiction. Therefore, the court said, the Rule 59(e) motion had not kept the court’s judgment from becoming final the day it was entered, and that meant that Greg’s notice of appeal – which would have been timely if Greg’s Rule 59(e) filing had stayed finality of the judgment – was late.

The Fifth Circuit agreed with the trial judge. Thus, Greg was denied his appeal.

Yesterday, the Supreme Court reversed the decision. Justice Kagan, writing for a 7-2 court, observed that the case “is about two procedural rules. First, Rule 59(e) applies in federal civil litigation generally. (Habeas proceedings, for those new to the area, are civil in nature)… The Rule enables a party to request that a district court reconsider a just-issued judgment. Second, the so-called gatekeeping provision of the… AEDPA, codified at 28 USC §2244(b), governs federal habeas proceedings. It sets stringent limits on second or successive habeas applications.”

habeas170510The Supreme Court observed that even under the old “abuse of the writ” standard, courts had historically considered Rule 59(e) motions filed in habeas corpus cases on their merits. Plus, a prisoner may invoke Rule 59(e) only to request “reconsideration of matters properly encompassed” in the challenged judgment. And, the Court said, “’reconsideration’ means just that: Courts will not entertain arguments that could have been but were not raised before the just-issued decision. A Rule 59(e) motion is therefore backward-looking; and because that is so, it maintains a prisoner’s incentives to consolidate all of his claims in his initial application.”

As well, the Rule consolidates appellate proceedings. “A Rule 59(e) motion briefly suspends finality to enable a district court to fix any mistakes and thereby perfect its judgment before a possible appeal,” Justice Kagan wrote. “The motion’s disposition then merges into the final judgment that the prisoner may take to the next level. In that way, the Rule avoids ‘piecemeal appellate review’… Its operation, rather than allowing re-peated attacks on a decision, helps produce a single final judgment for appeal.”

The Court contrasting the speed and efficiency of a Rule 59(e) motion with a Rule 60(b) motion, which can be filed years after the judgment. The availability of a Rule 60(b) motion “threatens serial habeas litigation; indeed, without rules suppressing abuse, a prisoner could bring such a motion endlessly. By contrast, a Rule 59(e) motion is a one-time effort to bring alleged errors in a just-issued decision to a habeas court’s attention, before taking a single appeal. It is a limited continuation of the original proceeding—indeed, a part of producing the final judgment granting or denying habeas relief. For those reasons, Gonzalez does not govern here.”

Banister v. Davis, Case No. 18–6943, 2020 U.S. LEXIS 3037 (Supreme Court, June 1, 2020)

– 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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A Midsummer Night’s Scheme – Update for May 10, 2017

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JUNE 22 AIN’T NUTHIN BUT A NUMBER

We take a necessary break from our breathless coverage of current events (Comey fired! Republic in Jeopardy!) to address a substantial question that the readers of our email federal prisoner newsletter have been sending for the past few weeks.

habeas170510First, a little background: Contrary to popular belief, the writ of habeas corpus was not created by the Magna Carta Libertatum, but rather derived from the Assize of Clarendon, a decree of Henry II a hundred years after the Battle of Hastings. Habeas corpus (literally, “you have the body”) is an extraordinary writ through which a person can report an unlawful detention or imprisonment and request that the court order the custodian of the person, usually a prison official, bring the prisoner to court to determine if the detention is lawful. William Blackstone, in his classic Commentaries on the Laws of England (1838) described habeas corpus as “the great and efficacious writ, in all manner of illegal confinement.”

By the time the U.S. Constitution was written in 1789, the notion that everyone enjoyed the right to seek a writ of habeas corpus was so ingrained in society that the Constitution’s framers did not see the need to express it, but rather merely to provide that habeas corpus could be suspended only under limited circumstances.

The fact that the right exists does not mean that Congress cannot control it. For federal prisoners, the law provides two methods of exercise. A prisoner may vindicate his or her right to habeas corpus by filing a motion under 28 USC 2255 challenging the legality of his or her conviction or sentence. A habeas corpus action challenging the conditions of confinement – inedible food, abysmal medical care and the like – is brought through 28 USC 2241. There are many asterisks, exceptions and conditions attached to the election of which statute to use, which we won’t go into here. Suffice it to say, we’re talking about the most popular means of continuing to attack one’s conviction and sentence even after losing on appeal – and that’s 28 USC 2255.

corso170112Likewise, we won’t get into all the reasons that Congress has tried its level best to strangle 28 USC 2255 to within an inch of constitutionality. It has, the latest being the strangely named “Antiterrorism and Effective Death Penalty Act of 1996.” The AEDPA put strict limitations on when a 2255 motion may be filed, and what gyrations a prisoner must endure if he or she wants to file a second one. Of significance to new prisoners is that they have one year from the date their conviction becomes final to file their 2255 motion.

Sometimes there is a change in the law, a Supreme Court holding that some statute or another is unconstitutional. A good example was the Court’s Johnson v. United States decision in 2015, holding that a portion of the Armed Career Criminal Act was unconstitutionally vague. Suddenly, a lot of guys doing serious time for ACCA violations found that they had been convicted unconstitutionally. So what happens to Ira Inmate, who has never filed a 2255 motion but is way beyond his one-year deadline for filing.

The AEDPA made limited provision for situations like Ira’s. If a prisoner comes upon evidence that could not have been reasonably discovered before trial, or if a Supreme Court case recognizes a new right, and the Court makes the decision retroactive to cases on collateral review (that is, habeas corpus), the one-year period runs anew. Cases announcing substantive rules – changes that modify the range of conduct or class of people punished by the criminal law – generally are retroactive. Likewise, watershed rules of criminal procedure, which are procedural rules implicating the fundamental fairness and accuracy of the criminal proceeding, will also have retroactive effect.

The Supreme Court never announces that a decision changing substantive rules or a watershed change in criminal procedural rules is retroactive at the time the decision is rendered. Instead, it waits for a subsequent case directing addressing the retroactivity issue. In the case of Johnson, it required almost 10 months for the Supreme Court to take up the issue of its retroactivity.

falsehope170510As Elvis succinctly put it, “I said all that to say all this…” There are people out there who make a business selling hope to inmates. Hope is a good thing, provided there’s some reasonable basis for it. But we’ve written about the hopemongers before, people who will tell a prisoner anything to get him or her (or the family) to part with money, and sadly enough, we expect we’ll be writing about again.

The latest from the people who brought you “Holloway motions” is an urgent cry that “[t]he Mathis deadline is June 22, 2017 for those of you that believe you have Mathis/Holt/Hinkle/Tanksley claims should not hesitate in getting your free lookup.”

Please look past the run-on sentence to the meat of this breathless assertion. June 22 is the 1-year anniversary (minus one day) of Mathis v. United States. The other decisions – Holt v. United States, United States v. Hinkle, and United States v. Tanksley – are all appellate decisions that applied the procedural instructions of Mathis to decide that one prior state conviction or another no longer qualifies as an ACCA enhancement.

crisis170510Obama advisor Raum Emanuel famously said, “You never let a serious crisis go to waste.” The hopemongers might add to that the suggestion that if there is no serious crisis to latch onto, create one.

The plain facts are these: Mathis is not a substantive change in the law, that is, a case which interpreted any statute to make conduct that was once considered illegal to no longer be illegal. Rather, it was a case about criminal procedure, how to parse statutes to determine whether convictions under them counted as crimes of violence or controlled substance offenses. Every district court that has reached the question has concluded that Mathis is not retroactive. Obviously, the Supreme Court has never considered the question.

As for the other cases the hopemongers have mentioned, Holt, Hinkle and Tanksley, each is a decision of a circuit court of appeals, not the Supreme Court, and thus has no application to the 2255 deadline.

All of this means that neither Mathis nor any of the other mentioned cases has triggered the one-year period for filing a 2255 motion. The clock does not run out on June 22nd, because the clock never started.

Puck won't be busy on Midsummer's Night writing 2255 motions...
Puck won’t be busy on Midsummer’s Night writing 2255 motions…

But June 22nd makes a great “serious crisis” for the hopemongers, and there’s little doubt that they’re making regular runs to the bank, depositing money that inmates and their families will never see again. And the hopemongers will no doubt write some post-conviction schlock for their customers, and that schlock will be dutifully filed. It will then dutifully be bounced by the courts, and become part of the 92% of prisoner filings rejected by the federal courts in this fiscal year.

There are ways, according to each prisoner’s situation, that may enable him or her to raise issue based on an application of Mathis. But the method must be tailored to the inmate’s situation, and in an unfortunately high number of cases, nothing at all may work. To be sure, a cookie-cutter approach based on a phony deadline won’t work for anyone.

A lot of things happened on June 22nd in history. This year, we know for sure it will be the first full day of summer, the day after St. John’s Day. But that’s all. It will not be the expiration of a 1-year 28 USC 2255 deadline for Mathis, because a clock that doesn’t start won’t stop, either. 

– Thomas L. Root

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