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Thinking About a Report… And a Big White Bear – Update for July 15, 2024

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

THE FSA CREDIT’S BIG WHITE BEAR

whitebear171129Some say that as a boy, Russian author Leo Tolstoy and his brother formed a club. To be initiated, the aspirant was required to stand in a corner for five minutes and not think about a big white bear. 

[Some say it was first raised by Fyodor Dostoevsky’s Winter Notes on Summer Impressions, an 1863 account of his travels in Western Europe. Choose whichever origin story you like. As crusty old Judge Miller used to lecture us young lawyers, “you pays your money and you takes your chances”].

Last week, the Dept of Justice issued its annual report on the First Step Act, and puts both Tolstoy and Dostoevsky to shame. The Report manages in 50 pages to explore the FSA’s nooks and crannies without ever thinking about (let alone mentioning) the Act’s big white bear: Prisoners are amassing large numbers of FSA credits that they are being denied their right to use because the BOP’s sloth in expanding halfway house capacity has resulted in there simply being no room in the halfway house inn.

There’s a lot in the Report worthy of mention, and I intend to cover more of it this week. But first, a discussion of what the Report does not say.

FSA credits (previously called “ETCs” for “earned-time credits” or “FTCs” for “federal time credits”) are awarded to prisoners for successful completion of evidence-based recidivism reduction programs (“EBRRs,” in the BOP’s acronym-heavy bureaucratic speak). Such credits entitle prisoners to one of two benefits. First, the BOP may (but is not required to) apply up to 365 credits to shorten the inmate’s sentence by up to a year. Second, the BOP shall use any credits not used to shorten the sentence to place the prisoner in a halfway house or home confinement (known as “residential reentry centers” or “RRCs”).

This second option, enshrined in 18 USC § 3624(g)(2), says that “[a] prisoner shall be placed in prerelease custody as follows…”

The problem is that there isn’t nearly enough halfway house space to accommodate people now entitled to longer stays. It’s not like no one saw this coming: inmates have been complaining in my email for a year that they are being denied use of their FSA credits because of a lack of halfway house space. Walt Pavlo wrote about it in Forbes six months ago. NBC reported on it last month.

Unsurprisingly, the BOP has fought hammer and tong against any suggestion that it was violating First Step, arguing in courthouses across America that despite the Act, it had the discretion to decide whether the FSA credits earned by an inmate were gold bullion or play money.

planning240715This brings us to Alphonso Woodley, a BOP “adult in custody” who had amassed a pile of FSA credits (something over 450, even after 365 had been applied to reduce his sentence by a year). The BOP, however, told him he couldn’t be sent to an RRC in the Orlando, Florida, area because there was no bed space. Al said to the BOP, “That’s your problem,” and filed a 28 USC 2241 habeas corpus action.

The BOP rolled out its tired refrain that designation of prisoners to RRCs was its exclusive prerogative. The district court conceded that this was generally true, but where a prisoner had a statutory right to placement, the BOP had no choice. The First Step Act guaranteed Al designation to an RRC under 18 USC 3624(g)(2) as long as he had credits to spend and met the statutory criteria. Everyone agreed Al met the criteria. The judge called that game, set and match.

He wrote that the BOP’s

excuse for delaying petitioner’s transfer to an RRC is that bed space is not available in a particular RRC until September. No such condition concerning bed availability is included among the requirements for eligibility under § 3624(g), however, and thus immediate placement in prerelease custody is nevertheless required under § 3632(d)(4)(C)… That statute uses the mandatory “shall” (as distinguished, for instance, from the provision in § 3624(g)(3) that the BOP “may” transfer a prisoner to early supervised release). Numerous courts have held that the BOP has no discretion to delay or refuse transfer of an eligible prisoner to prerelease custody, which transfer is mandatory.

The court said that the BOP is required by the Act to “ensure there is sufficient prerelease custody capacity to accommodate all eligible prisones,” suggesting that the Bureau’s failure to plan ahead does not excuse its noncompliance with the law. To the court, it was fairly simple:

“Because the BOP’s failure to transfer petitioner to prerelease custody violates federal law, the Court grants the petition for relief.”

whitebear2407715The BOP probably doesn’t like that big white bear, the fact that it is required to deliver on RRC placement despite the agency’s utter failure over five years to ensure that there was enough RRC space. But as Dostoevsky or Tolstoy (or both) figured out, just because you can force yourself to not think about it doesn’t mean it isn’t there.

Dept of Justice. First Step Act Annual Report – June 2024

Woodley v. Warden, Case No 24-3053, 2024 U.S. Dist. LEXIS 87521 (D. Kan. May 15, 2024)

– Thomas L. Root

10th Circuit Finds 7-Year Old Inmate Suit Suddenly “Moot” – Update for March 15, 2024

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

10th CIRCUIT GIVES “STRATEGIC PRISONER TRANSFERS” A LIFT

whoopass240315Just yesterday, I wrote about the BOP buying a whole crate of whoop-ass from a federal judge by shipping a prisoner beyond the court’s jurisdiction while a civil action was going on.

The 10th Circuit takes a much more sanguine view of the practice, it seems.

Michael Bacote has spent seven years litigating claims that the Federal Bureau of Prisons violated his 8th Amendment rights at ADMAX Florence by acting with deliberate indifference to his mental disability. Michael’s retained psychiatrist concluded that he had both an intellectual disability and a mental disorder. After BOP psychologists examined Michael in response to his psychiatrist’s report, they agreed. BOP policy forbids placing prisoners with Mike’s condition at Florence, so the BOP transferred him to the mental health unit at USP Allenwood.

Before the transfer, the district court dismissed Mike’s case, holding that he had not established that the BOP was deliberately indifferent. Michael appealed, but the transfer occurred while the appeal was pending.

medical told you I was sick221017Last week, the 10th Circuit tossed out his case as being moot. The Court said that “the doctrine of mootness rests on a simple principle: the controversy that existed at litigation’s commencement may dissipate before its conclusion.” The Court held that while Michael’s case was not constitutionally moot, it was “prudential[ly]” so. Prudential mootness concerns “not the power to grant relief but the court’s discretion in the exercise of that power.” Under this doctrine, the 10th said, “If the circumstances of a controversy become too attenuated, prudence counsels us not to reach the merits of the appeal.”

Because Mike was not at Florence anymore, Florence could no longer be deliberately indifferent to him. He had not sued in Pennsylvania for whatever he said Allenwood was doing to him, and there was nothing in the record that would let the 10th decide whether there was a constitutional violation there. “Finally, even if Mike has requested relief that could have a continuing effect,” the Circuit said, “this relief requires us to restrict the conduct of officials outside of this circuit. As a general principle, opinions handed down in one circuit do not bind other circuit courts.”

“We recognize Plaintiff’s concern that some could misinterpret this holding as a license for the BOP to concoct mootness by transferring litigant inmates.” But because Michael had not provided evidence the Bureau acted with an eye toward dismissing the case, the 10th said, “we need not answer” how to treat a strategic prisoner transfer.

habeasB191211Michael’s attorneys warned the precedent-setting opinion did not fully recognize the frequency of strategic prisoner transfers. “Functionally, publishing this decision gives prisons a roadmap for defeating the 10th Circuit’s jurisdiction during the litigation of an appeal,” Mike’s lawyers with the University of Denver’s Civil Rights Clinic said in a statement. “We’re very concerned that the court’s decision will negatively impact incarcerated persons’ ability to have their cases heard on the merits, as it’s difficult — sometimes impossible — for incarcerated litigants to prove that a prison transferred them due to litigation.”

Bacote v. BOP, Case No 22-1325, 2024 USApp LEXIS 5239 (10th Cir, March 5, 2024)

Colorado Politics, 10th Circuit opens door wider for courts to dismiss prisoners’ civil rights lawsuits (March 7, 2024)

– Thomas L. Root

Supreme Court Denies a Habeas Corpus, But With An Interesting Twist – Update for February 23, 2024

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

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

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

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

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

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

The Government agreed with Mike.

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

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

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

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

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

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

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

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

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

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

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

– Thomas L. Root

The Short Rocket – Update for January 27, 2023

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rocket190620We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

Today, the short rocket – decisions from around the federal circuits…

SOME CASE SHORTS

Timing is Everything: In 2015, Benny Hall pled guilty to conspiracy to commit Hobbs Act robbery and using a gun in a crime of violence, (an 18 U.S.C. § 924(c) offense). After the Supreme Court decided in United States v. Davis that conspiracy to commit a crime of violence was not itself a crime of violence that supported a § 924(c) conviction for using a gun in a crime of violence, Benny filed a 28 U.S.C. §2255 post-conviction motion asking that the § 924(c) be thrown out.

corso170112The government convinced the district court that Benny’s § 924(c) conviction didn’t depend only on the conspiracy, but also on his admissions in open court that established that he had actually attempted to commit the robbery.

‘Gotcha!’ the government cried.

‘Not so fast!’ the 2nd Circuit replied last week. Last summer, the  Supreme Court ruled in United States v. Taylor that an attempted Hobbs Act robbery is not a crime of violence. The Circuit threw out § 924(c) conviction and the mandatory 10-year add-on sentence it represented.

Hall v. United States, Case No 17-1513, 2023 U.S.App. LEXIS 1256 (2d Cir., January 19, 2023)
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11th Holds Drug Conspiracy Can’t Lead to Guidelines ‘Career Offender’: Brandon Dupree was convicted of a 21 U.S.C. § 846 drug conspiracy, and was hammered at sentencing as a Guidelines “career offender” (which dramatically increased the advisory sentencing range). An 11th Circuit panel rejected Brandon’s argument that an inchoate offense (that is, a mere plan to commit a crime) does not qualify as a “controlled substance offense” for purposes of the Guidelines ‘career offender’ enhancement.

brandon230127Last week, the full Circuit sitting en banc said, ‘Let’s go, Brandon,’ and reversed his ‘career offender’ sentence. The 11th ruled that “application of the enhancement turns on whether the ‘instant offense of conviction’ is ‘a controlled substance offense’ [under USSG] 4B1.1(a)… The plain text of 4B1.2(b) unambiguously excludes inchoate crimes. Dupree must be resentenced without application of the career offender enhancement.”

United States v. Dupree, Case No 19-13776, 2023 U.S.App. LEXIS 1183 (11th Cir., January 18, 2023)
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Channeling Your Inner Habeas: People are always asking why they can’t point out in their 18 U.S.C. § 3582(c)(1)(A) compassionate release motions that their sentences were wrongly calculated, that their lawyers were ineffective imbeciles, that something was very wrong with how they were convicted.

reallawyer170216Mike Escajeda was convicted of selling drugs and carrying a gun. After losing his direct appeal, Mike filed a compassionate release motion, arguing that the “extraordinary and compelling reasons” required by an 18 U.S.C. § 3582(c)(1)(A) compassionate release motion were that (1) his sentence exceeded the statutory maximum and (2) he received ineffective assistance of counsel. He even admitted in his motion that he had filed for compassionate release because he figured that he could not win relief under § 2255.

Last week, the 5th Circuit ruled that the habeas-channeling rule prevented Mike from raising 2255-type issues in a compassionate release motion. The Circuit said, “Congress provided specific avenues for post-conviction relief that permit prisoners to challenge the legality of their confinement in federal court… The Supreme Court has repeatedly held that by codifying these specific provisions, Congress required prisoners to bring their legality-of-custody challenges under [28 USC 2241, 2244, 2254, and 2255], and prohibited prisoners from bringing such claims under other, more-general statutes like 42 U.S.C. § 1983.

[A] prisoner cannot use § 3582(c) to challenge the legality or the duration of his sentence,” the 5th held. “Such arguments can, and hence must, be raised under [the habeas statutes]… Because Escajeda’s claims would have been cognizable under § 2255, they are not cognizable under § 3582(c).”

United States v. Escajeda, Case No 21-50870, 2023 U.S.App. LEXIS 1041 (5th Cir., January 17, 2023)
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DOJ SORNA Rule Blocked: The U.S. District Court for Central District of California last week issued a preliminary injunction blocking the Dept of Justice’s new Sex Offender Registration and Notification Act rule because it violated due process and the 1st Amendment.

injunction230127The rule requires people who had been convicted of a sex crime to register as sex offenders in their state, even if the sex crime convictions have been expunged and the people are not allowed by the state to register. Because plaintiff John Doe could not register, the DOJ’s rule said that he could be prosecuted at any time, and he would have been forced to prove that registration was impossible — “an affirmative defense,” Doe’s lawyer said, “that turns the presumption of innocence on its head.

The court ruled that it was likely an unconstitutional violation of due process to require anyone to affirmatively prove his innocence when he had never been convicted.

Preliminary injunction, ECF 55, Doe v. DOJ, Case No 5:22-cv-855 (CD Cal., Jan 13, 2023)

Reason, A Federal Judge Says the DOJ’s Sex Offender Registration Rules Violate Due Process by Requiring the Impossible (January 19, 2023)

– Thomas L. Root

Right Claim, Wrong Vehicle? – Update for November 23, 2022

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

MAGISTRATE THROWS OUT FCI SHERIDAN LOUSY-CONDITIONS HABEAS PETITIONS

judge160620An Oregon federal magistrate judge last week recommended that some 200 habeas corpus actions alleging insufficient medical care at FCI Sheridan be dismissed.

The magistrate judge ruled that the petitioners have been pursuing the wrong legal strategy. Rather than habeas corpus, the inmates “should have worked to address their concerns through other means.

The Opinion and Order stated that while

the Court is sympathetic to Petitioners’ difficult experiences at Sheridan during the pandemic, the Court cannot conclude that merely alleging that no conditions of confinement could satisfy the Eighth Amendment is sufficient to confer habeas jurisdiction under circumstances such as those present here… Petitioners insist that they are challenging the fact of their confinement, but they do not allege that their convictions or sentences are invalid in the first instance or that they are being held in excess of a lawfully imposed term of imprisonment. Instead, Petitioners allege that the harsh conditions at Sheridan place them at risk of serious harm from COVID-19, allegations premised on the conditions, and not the validity, of their confinement… Indeed, Petitioners’ claims “would not exist but for [the] current conditions” at Sheridan.

The Court ruled that the prisoners’ “argument that habeas jurisdiction exists simply because they allege that nothing short of their release may remedy the unconstitutional conditions at Sheridan thus improperly ‘conflates the nature of relief with the substance of the claim.’

Stirling v. Salazar, Case No. 3:20-cv-00712-SB, 2022 U.S. Dist. LEXIS 206892 (D. Or. Nov. 15, 2022)

Oregon Public Broadcasting, Federal judge dismisses claims of mistreatment in Oregon prison as wrong legal strategy (November 17, 2022)

– Thomas L. Root

‘You Can’t Just Make Stuff Up,’ Two Courts Tell BOP – Update for November 10, 2022

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

TWO EARLY HABEAS DECISIONS ON FSA CREDITS AND DETAINERS ARE POSITIVE

maketherules221110The Federal Bureau of Prisons has been refusing to award earned-time credits (ETCs) for prisoners who complete evidence-based programs to reduce recidivism (EBRRs) where the inmates have detainers, whether for immigration, pending charges or other sentences to be served. Challenges to the practice are in their early stages, but right now decisions on the merits stand at prisoners 2, BOP 0.

Explainer: When another agency or court wants a prisoner – either for service of a sentence, a pending charge, or so it can start deportation proceedings – a “detainer” is filed with the prison authority informing it that the prisoner is to be turned over to the detaining entity when his or her sentence is complete.

The BOP honors detainers, and refuses to place prisoners with detainers in minimum-security camps or send them home to halfway houses or home confinement at the end of their sentences.

When Congress passed the First Step Act, there was an 11th-hour flurry of amendments that severely narrowed the number of prisoners eligible to get credit for completing EBRRs. Prisoners whose crimes included carrying guns, fentanyl, certain leadership roles, sex offenses… by the time Republican fire-breathers like Ted Cruz and Tom Cotton were done, at least 64 different categories of prisoner were excluded from the ETC program, constituting about half of all federal prisoners.

But their programming penuriousness has a flip side: by detailing so many exclusions, Congress strongly implied that the BOP had not been delegated any authority to concoct its own list of additional exclusions.

Notably, the ETC exclusions mention nothing about detainers.  But that hasn’t stopped the BOP from asserting that it has the discretion to declare the inmate ineligible for early release “because the BOP is entitled to interpret the FSA to allow it to deny application of earned ETCs to those federal inmates who have pending criminal charges or a detainer.”

The very early returns are in, and the BOP is losing. In a California district court case, the BOP declared an inmate with low recidivism ineligible to have his earned ETCs applied to his sentence due to two pending Missouri criminal cases. The BOP told the court that the agency has the discretion to declare the inmate ineligible for early release “because the BOP is entitled to interpret [First Step] to allow it to deny application of earned ETCs to those federal inmates who have pending criminal charges or a detainer.”

words221110The magistrate’s recommended decision in Jones v. Engleman rejected the BOP’s position, holding that it is fundamental that a statute’s “words generally should be interpreted as taking their ordinary, contemporary, common meaning at the time Congress enacted the statute. Agencies exercise discretion only in the interstices created by statutory silence or ambiguity; they must always give effect to the unambiguously expressed intent of Congress.”

“Here,” the Magistrate Judge ruled, “there are no such interstices, because the relevant portions of the [First Step Act] are not ambiguous or incomplete and Congress’s intent is clearly expressed through mandatory statutory language. The language of the [First Step Act] shows that Congress made a conscious choice to do three things. One, by its use of ‘shall be applied’ and ‘shall transfer”‘language in Section 3632(d)(4)(C), Congress made the application of earned ETCs to effect early release mandatory for prisoners “eligible” under Section 3624(g). Two, by Section 3624(g), Congress spelled out the prerequisites for a prisoner to be ‘eligible,’ which have been described earlier and do not contemplate any additional criteria or precondition to release akin to the Pending Charges Exclusion. Third, by Section 3632(d)(4)(C), Congress explicitly determined which prisoners are “ineligible” to have the [First Step Act]’s ETC and early release provisions applied to them, and none of these expressly delineated categories include prisoners who have pending charges or detainers.”

(After the Jones v. Engleman recommended decision, the BOP decided that inmate Jones didn’t have a detainer after all, so the District Court did not adopt that part of the recommended decision  due to mootness).

myrules221110In a New Jersey case, an inmate with a pending Pennsylvania parole detainer was denied his ETCs because under BOP rules, he was ineligible for halfway house or home confinement due to the detainer. The District Court ruled that the First Step Act’s list of prisoners ineligible for ETCs left no room for the BOP to add other categories. The Court held:

If… the warden determines that Petitioner’s earned TCs should be applied to early supervised release, rather than prerelease custody to a residential reentry center or home confinement, there is no statutory provision or BOP regulation that precludes application of TCs toward early supervised release of prisoners who have state detainers lodged against them. As Petitioner suggested, the provisions regarding detainers in BOP Program Statement 7310.04 apply only to prerelease custody to residential reentry centers and home confinement. As Respondent points out, however, supervised release is different because it does not involve BOP custody…

There is bound to be much more litigation over whether the BOP may deny prisoners with detainers from using ETC credits for shortened sentences. These early decisions suggest that courts will be skeptical of BOP efforts to expand the list of people being denied ETCs.

Jones v. Engleman, Case No 2:22-cv-05292, 2022 U.S.Dist. LEXIS 185635 (C.D. Cal., Sept. 7, 2022)

Jones v. Engleman, Case No. 2:22-cv-05292, 2022 U.S.Dist. LEXIS 185029 (C.D. Cal., Oct. 7, 2022)

Moody v. Gubbiotti, Case No 21-12004, 2022 U.S.Dist. LEXIS 181399 (D.N.J., Oct. 3, 2022)

– Thomas L. Root

The Supremes Finally Take The 2255(e) Debate! – Update for May 16, 2022

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

LATE-BREAKING NEWS…

The Supreme Court granted certiorari in Jones v. Hendrix by order issued at 9:30 am on Monday, May 16.  

Could the Justices be reading my blog? Doubtful, but the certiorari may be good news for thousands of federal inmates trapped in the 10th and 11th Circuits (depending, of course, on the outcome of this case sometime next year).

SCOTUS MAY FINALLY SETTLE THE 2241 DEBATE
... but a 2255(e) ain't, depending on where you are.
… but a 2255(e) ain’t, depending on where you are.

Let’s say you were standing in front of Sunny’s Cigars with a gun and two prior convictions, one for selling drugs and the other for manslaughter. If the Feds picked you up, you would have been sentenced to a minimum 15 years under 18 U.S.C. § 924(e), the Armed Career Criminal Act.

After the U.S. Supreme Court (generally known by the shorthand “SCOTUS“) ruled in Borden v. United States that a crime committed through recklessness was not a “crime of violence” predicate for ACCA, you would want to file with your sentencing court to get the ACCA sentencing enhancement thrown out.

The Borden ruling was not a constitutional ruling, but instead just an interpretation of a statute. That meant that you could not file a second-or-successive 28 U.S.C. § 2255 motion, because 28 U.S.C.  § 2244(b) limits successive § 2255s to newly discovered evidence or decisions on constitutionality. However, 28 U.S.C. § 2255(e) – known as the “saving clause,” lets you file a traditional 28 U.S.C. § 2241 habeas corpus motion attacking the ACCA sentence where a § 2255 would be inadequate to address the issue.

Or at least it would let you file a § 2241 petition if you’re locked up in, say, Kentucky (in the 6th Circuit). A § 2241 habeas corpus petition is filed in the federal district in which you’re located at the time you file. If you were at FCI Manchester, you’d file in the Eastern District of Kentucky. Go a few miles east of there to do your time in Beckley, West Virginia, for example, and you’d be filing in the Southern District of West Virginia (4th Circuit). Fourth Circuit precedent forecloses you from using a § 2241 petition as a workaround.

gunknot181009Writing in SCOTUSBlog last week, John Elwood noted that Ham v. Breckon, a 4th Circuit decision, and Jones v. Hendrix, an 8th Circuit decision, both asked the same question, and both have been “relisted” by the Supreme Court.

A “relist” is a petition for certiorari that is scheduled to be decided at the Supreme Court’s regular Friday conference, but is “relisted” to be considered further at a subsequent conference. A “relisted” petition is statistically more likely to have review granted by the Court, and that is even more likely where there are two relisted petitions asking the same question.

This is important, because two circuits – the 10th and 11th – don’t permit § 2241 petitions even where the movant is challenging guilt or innocence. A SCOTUS decision on Ham or Jones would not only settle whether a movant could challenge a statutory sentencing enhancement using a § 2241 petition under the “saving clause,” but would address the circuit split between the two outlier circuits (the 10th and 11th) and everyone else on whether guilt and innocence could be challenged as well.

circuitsplit220516Elwood thinks that, while the Court has ducked the issue in the past, it will grant review this time. He wrote, “The government — which generally is a pretty successful respondent as well as a successful petitioner — admits that there is a circuit split on the issue. It would have a hard time saying otherwise, since the government itself petitioned for Supreme Court review on this very issue a couple years back in the much-relisted United States v. Wheeler, before a vehicle problem arose (the prisoner… was released from prison) that apparently persuaded the Supreme Court to deny review in that case.”

Ham v. Breckon, Case No 21-763 (pending certiorari)

Jones v. Hendrix, Case No 21-857 (certiorari granted)

SCOTUSBlog, Challenges to administrative action and retroactive relief for prisoners (May 11, 2022)

– Thomas L. Root

Home Confinement Removal Without Hearing Challenged – Update for May 11, 2022

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

CONNECTICUT SUIT ARGUES HOME CONFINEMENT REVOCATION VIOLATED DUE PROCESS


homeconfinement220511Under the CARES Act, the Federal Bureau of Prisons was authorized to place inmates in extended home confinement as a means of getting medically vulnerable people out of the path of the coronavirus. Under this authority, the BOP has sent about 9,000 inmates to home confinement, where they remain in their residences except for work and a very few tightly-controlled exceptions (weekly groceries, medical appointments, church services and the such).

BOP Director Michael Carvajal has touted the success of the program. He told the Senate Judiciary Committee that only 289 inmates had been returned to prison after being on CARES Act home confinement, and only three of those were returned because of new criminal conduct.

The flip side of that coin is that the BOP sees home confinement as just another prison designation, meaning that the BOP can pull someone at home back to prison for the flimsiest of reasons, or for no reason at all. The government has argued that because inmates have no due process right to placement in any particular prison facility, they have no grounds to challenge a decision to revoke home confinement.

Now, three FCI Danbury inmates have filed a habeas corpus action in U.S. District Court in Connecticut claiming their release to home confinement under the CARES Act was revoked without due process.

“There’s no due process for resolving these cases or real consideration whether the person should be pulled back to prison,” said their attorney Sarah Russell, director of the Legal Clinic at Quinnipiac University School of Law. “There is no opportunity for a hearing or an argument even when children are being impacted.”

On home confinement for over a year, the lead petitioner, Nordia Tompkins, had been able to regain custody of her daughter, enroll in vocational classes and hold down a job. She was sent back to prison after the halfway house supervising her could not reach her by phone because she was in class at an approved time.

The government has argued that because the inmates remained in BOP custody, they had no “protected liberty interest” in remaining on home confinement. Such an interest is necessary in order to trigger a right to procedural due process.

home190109However, the inmates – represented by Yale and Quinnipiac University law school professors – argue that other factors, “such as whether one can form close family and community ties, seek and obtain employment”, are “markers of a liberty interest. It does not matter that someone is serving sentence or is technically in the ‘custody’ of prison authorities. Because Ms. Tompkins has been able to reside with her children and take care of them, attend a community school to further her education, and seek employment, she has a liberty interest in remaining on home confinement under the Due Process Clause [and] was entitled to basic due process protections…”

Danbury News-Times, Danbury prison inmates file lawsuit over home confinement getting revoked (May 5, 2022)

Tompkins v. Pullen, Case No. 3:22cv339 (D.Conn, filed Mar 2, 2022)

– 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

That ‘Teague’ Thing? We Were Just Kidding – Update for May 25, 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.

BAD (BUT UNSURPRISING) NEWS ON RETROACTIVITY

sadprison210525How would you like to be convicted of a federal crime with a long sentence, only to have the Supreme Court hold well after the fact that something about your trial was unconstitutional? How would you like that?

That’s an easy one. You would not like to be convicted.  Period. Whether it was done constitutionally or not. No one wants to be convicted. So that was a stupid question.

But over 50,000 people are convicted of federal crimes every year. And they don’t like it, either. They like it even less if, say, if the government grabbed your cellphone location data without a warrant, or you were convicted by a jury vote of 9-2, or the judge jacked up your statutory minimum because he thought your revolver was really a machine gun.

All of those were deemed to be unconstitutional.  The cellphone location data? Carpenter v. United States, 2018. Less-than-unanimous jury? Ramos v. Louisiana, 2020. A nonjury finding jacking your mandatory minimum? Alleyne v. United States, 2013.

The problem is that if your conviction was final before these decisions established that you were constitutionally wronged, you have no right to ask the court for a do-over. That is not unless the decisions are declared to be retroactive, which means that cases like yours that are already final may reopen the issues on collateral review (habeas corpus).

watershed210525Thirty-two years ago, the Supreme Court explained in Teague v. Lane that decisions holding substantive criminal laws to be unconstitutional (such as the Armed Career Criminal Act residual clause in Johnson v. United States) are always retroactive to cases on § 2255 review. However, Teague held, a case in which a criminal procedure was declared unconstitutional (like searches in Carpenter or a less-than-unanimous jury in Ramos) is only retroactive on habeas review only if the new rule was “watershed,” “bedrock” or “essential.”

So what kind of ruling would be “watershed?” Prisoners and defense attorneys have looked for that elusive “watershed” decision for three decades without success. Last week, the Supreme Court heard a case asking whether last year’s Ramos rule on unanimous juries had to be unanimous (a holding which affected Louisiana and Oregon only) was retroactive. The Court ruled 6-3 that Ramos was not a “watershed” rule. More important, the Court gave up pretending that anything could ever be a “watershed” rule.

“This Court has repeatedly stated that a decision announcing a new rule of criminal procedure ordinarily does not apply retroactively on federal collateral review,” Justice Kavanaugh wrote for the majority. “Indeed, in the 32 years since Teague underscored that principle, this Court has announced many important new rules of criminal procedure. But the Court has not applied any of those new rules retroactively on federal collateral review… And for decades before Teague, the Court also regularly declined to apply new rules retroactively, including on federal collateral review… At this point, some 32 years after Teague, we think the only candid answer is that… no new rules of criminal procedure can satisfy the watershed exception. We cannot responsibly continue to suggest otherwise to litigants and courts… It is time — probably long past time — to make explicit what has become increasingly apparent to bench and bar over the last 32 years: New procedural rules do not apply retroactively on federal collateral review. The watershed exception is moribund.”

squarepeg210525So prisoners, at last, can give up trying to pound round constitutional procedure decisions into Teague’s square holes. The Supreme Court has said what a lot of us suspected ever since Apprendi was declared non-retroactive. Teague’s promise is now and always has been an illusion: there simply are no watershed decisions.

Edwards v. Vannoy, Case No 19-5807, 2021 US LEXIS 2584 (May 17, 2021)

– Thomas L. Root