Tag Archives: FRCivP 59(e)

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Desmond Rouse and several co-defendants were convicted based on what they called “outdated, false, misleading, and inaccurate” forensic medical evidence, testimony that had since been recanted, and juror racism.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

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

Handful of Interesting Criminal Issues at Supreme Court – Update for December 11, 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.

INTERESTING TIMES AT SUPREME COURT

interesting191212Banister: The Supreme Court last week heard oral arguments in Banister v. Davis, the case that asks whether a motion to amend a judgment denying a 28 USC § 2255 motion under F.R.Civ.P. 59(e) constitutes a second-or-successive § 2255 for which prior permission from the court of appeals is necessary under 28 USC § 2244.

Since the 2005 Gonzalez v. Crosby decision, a F.R.Civ.P. 60(b) motion to set aside a § 2255 judgment has almost always been considered a second-or-successive § 2255 motion for which prior permission from the court of appeals is necessary. In the last few years, some courts of appeal have also held that even the lowly F.R.Civ.P. 59(e) motion to amend a judgment denying a § 2255 motion, which postpones the deadline for filing a notice of appeal, is a second-or-successive § 2255.

This has created a conundrum for § 2255 movants. If you file a Rule 59(e) motion in a § 2255 case, it delays your deadline for appealing. But if the court treats the 59(e) as a second-or-successive § 2255, it will not delay the appeal deadline. Often, by the time you find out the court is treating it as a second-or-successive, your appeal deadline will likely have passed.

By the end of last week’s argument session, there appeared to be at least six votes for the conclusion that prisoner Greg Banister’s Rule 59(e) motion was not a “second-or-successive” habeas petition. And although that result may not ultimately change the outcome of Greg’s quest for collateral post-conviction relief, it would avoid a significant narrowing of appeal rights for federal post-conviction relief.

Holguin-Hernandez: When a defendant asks for a lower sentence than the judge ultimately imposes, does the defendant have to object to the judge’s sentence after it is announced in order to preserve the issue for appellate review?

kabuki191212It always seemed foolish to me that after vigorously arguing a sentencing issue, only to have the court rule against you, you were compelled to renew your objection after the sentence was imposed. It was sort of kabuki theater that served no purpose other than to create a procedural trap for appellants whose trial lawyers had missed making the magical incantation. F.R.Crim.P. 52(b) provides that an error not brought to the trial court’s attention may be reviewed only for “plain error.” On the other hand, Rule 51(b) explains that a “party may preserve a claim of error by informing the court – when the court ruling is made or sought – of the action the party wishes the court to take.”

Yesterday, the Supreme Court heard argument in Holguin-Hernandez v. United States to resolve a circuit split about exactly how these two rules play out against each other in federal sentencings. Holguin-Hernandez raised several claims under 18 USC § 3553(a) at sentencing, and then then appealed his additional 12-month sentence, arguing that it was unreasonable because it was “greater than necessary to effectuate the sentencing goals of … § 3553(a).” But the 5th Circuit held that because Mr. Holguin-Hernandez “failed to raise his challenges in the district court, our review is for plain error only.”

This might look like simple clear error. After all, Mr. Holguin-Hernandez surely did “raise his challenges” below – the court noted that “there is a circuit split” on the appropriate standard of review. In fact, the 5th Circuit has applied the rule that a defendant must register an objection to a sentence after it is imposed since its 2007 decision in United States v. Peltier.

Arguing for Mr. Holguin-Hernandez, attorney Kendall Turner agreed with my view (not that she cited me or anything, but any time a Supreme Court litigator and I make the same cogent argument, I feel good). She pointed out that Rule 51 plainly “tells parties how to preserve claims of error for appeal,” and “[t]here’s no need to tell the court twice.” There is no “practical merit” to a requirement that the defendant must again say “I object,” and, as Turner noted in rebuttal, the “[n]ine courts of appeals” that do not require a repeated objection “show that the Fifth Circuit’s rule is not necessary to the effective functioning of courts.” She emphasized the government’s agreement with this view, and said that the amicus was “tr[ying] to defend the judgment below on alternative grounds” – grounds that Justice Elena Kagan later pointed out are not “what the question presented is.”

slamdunk191212Post-argument commentators suggest the outcome is pretty cut-and-dried. The issue is not whether Mr. Holguin-Hernandez will carry the day, but rather – as Justice Sotomayor asked – how the Court will write its opinion to provide clear guidance to litigants.

Mojica: I am watching a petition for certiorari that is getting some traction. By now, it is clear that a conspiracy to commit a violent crime is not does not support an 18 USC § 924(c) conviction for use of a gun in a crime of violence. Post-conviction attorney Brandon Sample has filed a petition for certiorari arguing that the Supreme Court should resolve the question of whether aiding and abetting a crime of violence, which can be done without committing an act of violence, will support an 18 USC § 924 conviction.

This case has consequences for the crime of attempting to commit a crime of violence as well, and seems to be a logical extension of the implicit United States v. Davis holding last June that a conspiracy to commit a violent crime is not itself violent.

SCOTUSBlog, Argument analysis: Justices seem likely to side with Texas prisoner in important habeas case (Dec. 6)

SCOTUSBlog, Argument preview: Court likely to rule that a defendant preserves appellate challenge to length of sentence merely by arguing for lower one, but precise wording of opinion will be important (Dec. 11)

Mojica v. United States, Case No. 19-35 (Pet. for Certiorari, filed July 2, 2019)

– Thomas L. Root

Davis Lives! 924(c)(3)(B) Residual Clause Held to be Unconstitutionally Vague – Update for June 25, 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.

THE LAST JOHNSON DOMINO FALLS

By a 5-4 vote, the Supreme Court yesterday upheld the categorical approach to judging whether offenses were crimes of violence, ruling that 18 USC § 924(c)(3)(B) is unconstitutionally vague.

Justice Neil Gorsuch wrote in the majority opinion that “[i]n our constitutional order, a vague law is no law at all.”

vagueness160110The vagueness doctrine rests on the twin constitutional pillars of due process and separation of powers. Having applied the doctrine in two cases involving statutes that “bear more than a passing resemblance to § 924(c)(3)(B)’s residual clause” – those being Johnson v. United States (Armed Career Criminal Act residual clause unconstitutional) and Sessions v. Dimaya (18 USC § 16(b) residual clause unconstitutional) – the Court completed its frolic through the residual clauses in the criminal code.

Courts use the “categorical approach” to determine whether an offense qualified as a violent felony or crime of violence. Judges had to disregard how the defendant actually committed the offense and instead imagine the degree of risk that would attend the idealized “‘ordinary case’ ” of the offense.

The lower courts have long held § 924(c)(3)(B) to require the same categorical approach. After the 11th Circuit’s decision in Ovalles, the government advanced the argument everywhere that for § 924(c)(3)(B), courts should abandon the traditional categorical approach and use instead a case-specific approach that would look at the defendant’s actual conduct in the predicate crime.

The Supreme Court rejected that, holding that while the case-specific approach would avoid the vagueness problems that doomed the statutes in Johnson and Dimaya and would not yield to the same practical and Sixth Amendment complications that a case-specific approach under the ACCA and § 16(b) would, “this approach finds no support in § 924(c)’s text, context, and history.”

hathanded190625The government campaign came to a head in Davis, a 5th Circuit case in which the appellate court said that conspiracy to commit a violent crime was not a crime of violence, because it depended on the § 924(c)(3)(B) residual clause. The Dept. of Justice felt confident enough to roll the dice on certiorari. Yesterday, the DOJ had its hat handed to it.

Who does this benefit? Principally, it benefits anyone who received a § 924(c) enhanced sentence for an underlying conspiracy charge. Beyond that, it helps anyone else whose “crime of violence” depended on the discredited § 924(c)(3)(B) residual clause.

The Court did not rule that Davis is retroactive for 28 USC § 2255  post-conviction collateral attack purposes, because that question was not before it. SCOTUS never rules on retroactivity in the same opinion that holds a statute unconstitutional. There is little doubt that, if Johnson was retroactive because of Welch, Davis will be held to be retro as well.

United States v. Davis, Case No. 18-431 (Supreme Court, June 24, 2019)

ARE 59(e) MOTIONS ‘SECOND OR SUCCESSIVE’ 2255s?

A number of lower courts have ruled that an unsuccessful § 2255 movant who files a motion to alter the judgment under Fed.R.Civ.P. 59(e) may be filing a second-or-successive § 2255 motion requiring prior approval.

HobsonsChoiceThis leaves § 2255 movants with a Hobson’s choice. Filing a 59(e) stays the time for filing a notice of appeal. But if the court sits on the 59(e) past the notice of appeal deadline, and then dismisses it as second-or-successive, the § 2255 movant has missed the notice of appeal deadline with the Court of Appeals. If the movant files a notice of appeal to preserve his or her rights, that nullifies the 59(e).

Right now, the only logical election is to ignore Rule 59(e) motions altogether.

Yesterday, the Court granted review in yet another “Davis” case, asking whether the 59(e) motion should be considered second or successive such that it requires the grant of permission under 28 USC § 2244. We’ll have an answer next year.

Banister v. Davis, Case No. 18-6943 (certiorari granted, June 24, 2019)

– Thomas L. Root

5th Circuit Pummels § 2255 Petitioner in Pair of Cases – Update for October 30, 2018

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5th CIRCUIT DEALS TWO SETBACKS TO 2255 PROCEDURE

The 5th Circuit handed down a pair of 2255 procedural decisions last week that complicate matters for inmates seeking post-conviction relief in that circuit.

siegfried181101Every inmate law library denizen knows that if the district court denies a 2255, the Federal Rules of Civil Procedure let the defendant file a motion to alter the judgment under Federal Rule of Civil Procedure 59(e). It seems like a free bite of the apple: you get to reargue your position, and a timely-filed 59(e) stops the clock running on the appeal deadline.

But, it turns out, a 59(e) motion is not free of cost. Andre McDaniels found that out last week. After the district court denied his 2255, which was based on ineffectiveness of counsel, Andre filed a Rule 59(e) motion that argued the court had erred in refusing to grant an evidentiary hearing. That motion also was denied. Andre got a certificate of appealability from the 5th Circuit, but the government complained the Circuit lacked jurisdiction to hear the appeal.

The Supreme Court’s 2005 Gonzalez v. Crosby decision held that Rule 60(b) motions filed in 2255 cases seeking “to add a new ground for relief” or “attack the federal court’s previous resolution of a claim on the merits” is a second-or-successive 2255 petition. A motion that merely targets a procedural defect in the integrity of the federal habeas proceedings, however, remains a bona fide Rule 60 motion over which a district court has jurisdiction.

Circuit courts are applying Gonzalez to Rule 59 motions filed in 2255 the allegations that he had made in the 2255 motion, and complained the district court had erred in dismissing the motion without an evidentiary hearing. The 5th Circuit ruled that the district court lacked jurisdiction to hear Andre’s substantive claims under the 5th and 6th Amendments. Because they attacked the district court’s previous ruling on the merits, they constituted a successive habeas application.

However, his claim that the district court should have conducted an evidentiary hearing was not an attack on the decision on the merits, but rather on the proper procedure used by the district court in the 2255 proceeding. Andre was able to go forward on that issue.

In a separate decision, the 5th Circuit weighed in on a circuit split on the meaning of 28 USC 2244(d)(1)(D). That statute permits second-and-successive 2255 motions in some cases, including newly discovered evidence. The 5th Circuit held that to show there is newly-discovered evidence, a defendant must “establish that the affidavits were unavailable to trial counsel at the time of trial.” A number of other circuits hold only that the evidence must be “reliable evidence that was available but not presented at trial.”

grasp181101The Circuit ruled that movant Jamal Hancock failed to show his evidence was newly discovered, because “it was always within the reach of petitioner’s personal knowledge or reasonable investigation.” The Court admitted it had not previously “decided what affirmatively constitutes ‘new’ evidence,” but it has “explained what does not.” Jamal’s affidavits did not show the witness affidavits were unavailable to his attorney at the time of trial, and therefore the Court held that Jamal had offered no “new” evidence.

United States v. McDaniels, Case No. 16-20508 (5th Cir., Oct. 26, 2018)

United States v. Hancock, Case No. 16-20662 (5th Cir. Oct. 23, 2018)

– Thomas L. Root

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