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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

Last Week’s § 2255 Gleanings – Update for March 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.

INMATES GO 2-2 ON § 2255 DECISIONS LAST WEEK

The Courts handed federal inmates two 28 USC § 2255 wins and two losses last week.

habeas191211For the uninitiated, habeas corpus (literally, a Latin imperative phrase to “produce the body”) has been around for about 806 years, give or take, ever since a band of angry noblemen forced King John to sign the Magna Carta (the “Great Charter of Liberties”) as an alternative to having his royal butt kicked.

One liberty the noblemen secured was the right not to be locked up without reason. The Magna Carta empowered courts to issue a writ (order) to a jailer to “produce the body” – that is, come to court with a particular prisoner and show why that prisoner’s detention is legal. Habeas corpus has become known as the “Great Writ,” so ingrained in English common law that our constitution simply assumes the right exists. The constitution only references habeas corpus in the negative, by denying the president the right to suspend the writ except in time of war.

Notwithstanding the constitutional origins of habeas corpus, Congress controls how prisoners may exercise their right to seek the writ in the federal courts by statute. For instance, 28 USC § 2244 regulates the filing of habeas corpus petitions for all claims of illegal detention for reasons other than a defect in the conviction or sentence. Section 2255 of Title 18 permits a federal prisoner to file a habeas corpus petition where the claim is that the conviction or sentence is contrary to law.

Every federal prisoner has the right to bring one § 2255 motion, subject to rather strict time limits. Bringing a second such petition is possible under very limited circumstances, with permission first being granted by the Court of Appeals.

Now for the week’s news:

violence181008(1) Dearnta Thomas pled guilty to a substantive RICO offense, and an 18 USC § 924(c) count for using a gun in furtherance of a crime of violence. The predicate “crime of violence” for the § 924 offense was aiding and abetting the commission of a VICAR offense (Violent Crimes in Aid of Racketeering Activity under 18 USC § 1959), those predicate violent crimes being two Virginia state-law offenses, a conviction for use or display of a firearm in committing a felony and another for “pointing, holding, or brandishing a firearm, air or gas-operated weapon or object similar in appearance.”

After the 2019 Supreme Court decision in United States v. Davis, Dearnta filed for permission under 28 USC § 2244 to bring a successive § 2255. Last week, the 4th Circuit held that Davis announced a new substantive rule of constitutional law retroactive to cases on collateral review by the Supreme Court and that Dearnta’s argument – that the state convictions were not crimes of violence within the meaning of Davis – stated a plausible claim.

(2) Meanwhile, Travis Harris asked the 5th Circuit for permission to file a successive § 2255 arguing that after Davis, his conviction for using a destructive device during a crime of violence (18 USC § 844(i)), should be thrown out, because the predicate offense – arson – was no longer a crime of violence.

The 5th agreed, holding – as the 4th Circuit has previously said – that Davis was retroactive and that Travis raised a plausible enough claim to go forward.

lawyerjoke180807(3) Things didn’t go so well for Kevin Kelley in the 1st Circuit. Kev figured he had a “gotcha:” it turned out the Assistant U.S. Attorney who had signed Kevin’s indictment had not paid his bar dues. Because F.R.Crim.P. 7(c)(1) says that an indictment “must be signed by” a government lawyer, and the AUSA’s law license had been suspended for nonpayment of dues, Kevin argued in his § 2255 motion that the bad signature invalidated the indictment and “robbed the district court of jurisdiction to proceed against him.”

Last week, the 1st Circuit rejected Kev’s technicality. “The Supreme Court, after all, has long viewed a government lawyer’s indictment signing as necessary only as evidence of the authenticity of the document,” the Circuit said, and Rule 7’s “intent is for common sense to prevail over technicalities.” Thus, the Circuit said, “it is unsurprising that many courts refuse to stamp ‘invalid’ an indictment signed by a prosecutor with bar-license problems if other evidence shows that the government was backing the prosecution — with some cases explicitly saying that in such a situation, the complaining party cannot prove prejudice.”

Here, the evidence showed the indictment had been approved by the AUSA’s superior, and that was good enough for common sense to prevail, the Court ruled, especially where Kevin could prove he was not harmed by the suspended AUSA working under a nonpayment suspension.

(4) Finally, Greg Olson got a target letter from the U.S. Attorney, telling him he would be indicted, but offering that he could get a lawyer and work out a preindictment deal. Greg and his lawyer worked out a 30-month plea to tax evasion, but the deal foundered when the government refused to provide any discovery. Greg got indicted, hired a different lawyer, but ended up with a 48-month sentence.

target210305Greg filed a § 2255 motion claiming his pre-indictment lawyer screwed up the plea deal. But last week, a 9th Circuit panel shot him down. Precedent in the circuit holds a defendant has no 6th Amendment right to effective counsel before he is a defendant, meaning that a three-judge panel cannot overrule the prior case. Of course, in such cases, if a three-judge panel thinks the precedent is nonsense, it can refer its case to the court en banc, but here, the Circuit said, “In determining whether this is an appropriate case to do so, we must assess whether Olson might prevail if current circuit precedent were to be overruled… The record does not support Olson’s claim that his counsel was ineffective. An en banc ruling would therefore not affect the result.”

In re Thomas, Case No 19-292, 2021 U.S. App. LEXIS 5316 (4th Cir. February 23, 2021)

In re Harris, Case No 19-51045, 2021 U.S. App. LEXIS 5719 (5th Cir. February 25, 2021)

Kelley v. United States, Case No 19-1932, 2021 U.S. App. LEXIS 5646 (1st Cir.  February 25, 2021)

United States v. Olson, Case No 19-16591, 2021 U.S. App. LEXIS 5027 (9th Cir.  February 22, 2021)

– Thomas L. Root

Inmate Wins (Sort of) Earned-Time Suit Against BOP – Update for February 26, 2021

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IT LOOKS LIKE A VICTORY, BUT NOT MUCH OF ONE…

slowwalking210226One of the marquee features of the First Step Act is an earned time provision that permits non-excluded federal inmates (and there’s a long list of who’s excluded, from people with gun and violence charges to sex offenders to some kinds of drug dealers) to earn credits that will reduce their sentence lengths or get them more halfway house or home confinement.

The plain terms of First Step said that qualifying programs completed after the Act’s passage would be counted. But ever since First Step passed, the Bureau of Prisons has done its institutional best to slow-walk implementation of the terms.  First, it took nearly every day of the two years it was given by the statute to adopt a recidivism and needs assessment system that would classify inmates according to their risk of recidivism. Then, although the BOP is a system in which virtually no inmate works an 8-hour day, the BOP decided that a day of programming (for purposes of earned-time credits awarded in blocks of 10 or 15 days for every 30 days of programming) should constitute a full eight hours. This meant that an intensive 9- or 10-month drug program that in all devoted 500 hours to the classroom would yield a paltry 62.5 days of programming credit, which would be two 30-day blocks, which would award an inmate 20 to 30 days off a sentence that, on average, would be 10 years long.

jailhouselaw160809The BOP’s latest indignity seems to be an institutional position that none can start earning credit until after January 15, 2022, because the earned-time system is to be phased in over two years, and the two years started January 15, 2020.  Late last summer, an inmate at FCI Fort Dix won a habeas corpus action against the BOP authorizing him to get credit for programs completed since First Step was enacted in 2018. Ever since that decision, Goodman v. Ortiz, was handed down, suing the BOP for earned time credits for completed programs has become a cottage industry at various institutions. In South Dakota (where there isn’t a lot else to do in the winter, even when you aren’t locked down for COVID), there are something like 34 habeas corpus suits pending demanding earned time credit.

The inmate winner in a recent decision from the same judge who wrote Goodman v Ortiz called his victory to my attention last week. It is not quite the triumph one might think it is.

Jeremy Hare filed a habeas action under 28 USC § 2241 against his warden, demanding a shortened sentence or other benefit for having completed programs since the passage of the First Step Act. The government, predictably enough, argued that Jeremy could not get credit for any program completed before January 15, 2020 (although to its credit, the US Attorney was unwilling to adopt the BOP’s position that no credits would be awarded until 2022). But the government did take the untenable position that the First Step Act was not really “enacted” until the BOP said it was, a position the Court dispatched handily:

Enactment means “the action or process of making into law.” ENACTMENT, Black’s Law Dictionary (11th ed. 2019).  The FSA was enacted on December 21, 2018, and nothing in subchapter D indicates a different effective date for the subchapter… Thus, 18 U.S.C. § 3632(d)(4)(B)(i) unambiguously directs that “[a] prisoner may not earn time credits… for an evidence-based recidivism reduction program that the prisoner successfully completed… prior to” December 21, 2018… There is no ambiguity here. As a result, if Petitioner successfully completed an EBRR [Evidence-Based Recidivism Reduction] program or PA [Productive Activity] pursuant to the FSA on or after December 21, 2018, he is entitled to earn Time Credits.

The District Court thus agreed with Jeremy that he was entitled to credit for programs completed after “enactment” of the First Step Act, regardless of how long it may have taken the BOP to actually adopt PATTERN.

humpty210226But that was the high-water mark for Jeremy. The Court ruled that Jeremy could only get credit for programs that addressed needs BOP staff had already identified for him. That could include substance abuse, basic education and whatever else may have been listed in his Program Review by BOP staff. That holding dramatically limited the courses he might otherwise get credit for, because before January 15, 2021, the staff did not routinely make such determinations.

But what really limited the reach of Jeremy’s win was the Court’s conclusion that the BOP calculation that one program day should equal eight full hours of programming was a reasonable one. Jeremy wanted credit for any day on which he might have attended a program, even if that program only lasted an hour. The court found the BOP’s calculation that a “program day” should be 8 hours long was completely reasonable.

The most liberal read of this decision is that inmates might get some credit for programs completed since December 21, 2018, but they will have to jump through plenty of hoops first, and the amount of credit they get may be slight.

Hare v, Ortiz, Case No 20-14093, 2021 US Dist LEXIS 21270 (DNJ Feb 4, 2021)

– Thomas L. Root

BOP 4, Inmates 0 in COVID-19 Litigation – Update for June 15, 2020

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THE WEEK IN COVID-19 LITIGATION

prisonhealth200313As of last night, June 14th, the number of Federal Bureau of Prisons inmates with COVID-19 had dropped from 2,109 a week ago to 1,341. The number of BOP facilities with COVID-19 on premises rose from 62 to 65, and then fell back to 62 as of last night. Deaths continued to climb, however, from 81 a week ago to 87 last night.

The numbers aren’t bad for the BOP. Inmate sickness has been fluctuating between 1,300 and 2,100 for a few weeks, and the number of prisons affected has leveled. But the BOP’s big advances last week were in the courtroom, not the medical suite.

Besides the 6th Circuit’s stay in FCI Elkton litigation, last Tuesday, Judge Rachel P. Kovner of the U.S. District Court for the Eastern District of New York denied prisoners a preliminary injunction because of inept medical care they claim amounts to cruel and unusual punishment, reasoning that despite deficiencies in MDC Brooklyn’s COVID-19 response, officials likely did not act with “deliberate indifference” to the health threat.

“Petitioners have not shown a clear likelihood that MDC officials have acted with deliberate indifference to substantial risks in responding to COVID-19,” Judge Kovner ruled. “Rather than being indifferent to the virus, MDC officials have recognized COVID-19 as a serious threat and responded aggressively.”

Nevertheless, the court cited significant problems with the BOP’s response to the pandemic. In particular, the judge noted the prison was way too slow responding to sick-calls requests and generally failed to isolate symptomatic inmates. “The MDC appears not to be isolating individuals who report COVID-19 symptoms,” in “tension with the CDC’s guidance” that they should be kept away from other inmates, Judge Kovner wrote. “Under standards of care that both parties have accepted, MDC officials’ apparent failure to fully implement the CDC guidance in these areas constitutes a deficiency in the MDC’s response to COVID-19.”

destroyevidence200615Judge Kovner also held the BOP had destroyed evidence by shredding the paper sick call requests used as the pandemic worsened. She sanctioned the BOP by drawing the inference that “the destroyed records would have contained additional reports of COVID-19 symptoms.” Still, the judge accepted the prison’s claims that it was doing the best it could under the circumstances, ruling that the evidence before the court did not clearly show that the inmates were at risk of serious harm, considering the MDC’s virus response, or that the prison did not care enough to shield them from that risk.

Meanwhile, last Thursday, a Massachusetts district court dealt a blow to the inmate habeas corpus/8th Amendment action against FMC Devens. The court held that the action – while calling itself a habeas corpus petition – was really a suit about prison conditions subject to the Prison Litigation Reform Act. The plaintiffs were given until the end of this week to show compliance with the PLRA, which mandates exhaustion of BOP administrative remedies as a jurisdictional condition. This holding conflicts with the 6th Circuit’s Wilson holding of three days before.

Lose200615The North Carolina habeas corpus case against FCC Butner likewise suffered a setback on Thursday, when the Eastern District of North Carolina federal court denied a preliminary injunction. Like the 6th Circuit in the Elkton case, the district court ruled that while the inmate plaintiffs met the objective prong of the deliberate indifference showing, by showing that COVID-19 “poses significant health risks to both the world and community at large” and that the “disease’s uncontrolled spread within FCC Butner therefore presents a substantial risk of serious or substantial physical injury resulting from the challenged conditions,” they had not shown that the BOP was ignoring the spread of the illness.”

Chunn v. Edge, Case No. 20-cv-1590, 2020 U.S. Dist. LEXIS 100930 (E.D.N.Y., June 9, 2020)

Grinis v. Spaulding, Case No. 1:20-cv-10738-GAO, 2020 U.S. Dist. LEXIS 103251 (D.Mass., June 11, 2020)

Hallinan v. Scarantino, Case No. 5:20hc2088, 2020 U.S. Dist. LEXIS 103409 (E.D.N.C., June 11, 2020)

– Thomas L. Root

6th Circuit FCI Elkton Holding a Mixed Bag – Update for June 11, 2020

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THREE WINS AND A LOSS AT THE 6TH CIRCUIT

winloss200611On the third try, the Federal Bureau of Prisons finally succeeded in getting a higher court to issue a stay in the FCI Elkton (Ohio) habeas corpus/8th Amendment case, stopping for the moment the U.S. District Court for the Northern District of Ohio’s injunction demanding that the BOP identify and either transfer or release medically vulnerable inmates.

On Tuesday, the U.S. Court of Appeals for the Sixth Circuit ruled that the preliminary injunction – which can only issue if a moving party can show irreparable harm and likelihood that it will succeed on the merits of the case – should be set aside. This does not mean that the inmate plaintiffs in the class action cannot win, but I suspect the BOP is betting that time (and attrition of the medically vulnerable inmates, as one after another comes down with COVID-19), will render the whole lawsuit moot before it’s done.

Technically, the lawsuit is a petition for writ of habeas corpus, addressed to unconstitutional conditions of confinement. The remedy in a habeas action is release of the prisoner or abatement of the unconstitutional condition. Here, the prisoners claimed that the BOP was violating the 8th Amendment, exacting “cruel and unusual punishment” by the Elkton administration’s “deliberate indifference” to a deadly medical condition, COVID-19.

plague200406In a 2-1 decision, the 6th Circuit panel struck down the district court’s order to thin the ranks of the 2,000 inmates at Elkton (located in Lisbon, Ohio, about 65 miles southeast of Cleveland), where more than a quarter have tested positive for the coronavirus and 19 inmates have died. U.S. District Judge James Gwin ruled in April that the administration was not doing enough to protect inmates, and ordered that the BOP transfer or release elderly or medically compromised prisoners.

“Deliberate indifference” has two components, one objective and one subjective. The Circuit ruled that while the plaintiffs had shown that objectively, COVID-19 was a genuine medical danger at the facility, they were unlikely to prove that the steps the BOP had taken as of April 22 — such as screening for symptoms, limiting visitation, increasing cleaning and providing masks — were insufficient to raise the administration’s response above the “deliberate indifference” standard. The majority on the panel agreed that the BOP’s “actions show it has responded reasonably to the risk posed by Covid-19 and that the conditions at Elkton cannot be found to violate the Eighth Amendment.”

Chief Judge R. Guy Cole Jr. dissented, writing that he was “left with the inescapable conclusion that the BOP’s failure to make use of its home confinement authority at Elkton, even as it stared down the escalating spread of the virus and a shortage of testing capacity, constitutes sufficient evidence for the district court to have found that petitioners were likely to succeed on their Eighth Amendment claim.”

habeasB191211Inmate advocates were disappointed with the ruling, but I think there were three wins in the decision for inmates. First, the BOP has argued in this case as well as in other pending cases elsewhere that inmates could not proceed on habeas corpus, but instead had to use a cumbersome procedure that would not have permitted as a remedy the release of inmates. The Court roundly dismissed this argument, holding that the claim being made can proceed on a 28 USC § 2241 habeas corpus petition.

Second, the Court swept aside BOP arguments that the inmates had to “exhaust” administrative remedies under the Prison Litigation Reform Act. This would have required each inmate plaintiff to file administrative remedies to the warden, then the regional BOP office, and final with the BOP in Washington, a cumbersome and largely futile procedure that would have consumed six months before a suit could even be brought.

Finally, the Court held that

“petitioners have provided evidence that they are ‘incarcerated under conditions posing a substantial risk of serious harm.’ The COVID-19 virus creates a substantial risk of serious harm leading to pneumonia, respiratory failure, or death. The BOP acknowledges that ‘[t]he health risks posed by COVID-19 are significant.’ The infection and fatality rates at Elkton have borne out the serious risk of COVID-19, despite the BOP’s efforts. The transmissibility of the COVID-19 virus in conjunction with Elkton’s dormitory-style housing—which places inmates within feet of each other—and the medically-vulnerable subclass’s health risks, presents a substantial risk that petitioners at Elkton will be infected with COVID-19 and have serious health effects as a result, including, and up to, death. Petitioners have put forth sufficient evidence that they are ‘incarcerated under conditions posing a substantial risk of serious harm’.”

tryhard200611This is a powerful foil to the government’s oft-repeated claim in opposing compassionate release motions that the BOP is adequately meeting inmate medical needs despite COVID-19, and that there is thus no need to protect vulnerable inmates by compassionate release under 18 USC § 3582(c)(1). In other words, the 6th said that the BOP was trying, but that it was not succeeding.

That may save the BOP from 8th Amendment claims – at least at the preliminary stage of litigation such as the Elkton case – but it refutes any government claim that no one needs to go home, because the BOP is keeping everyone safe.

Wilson v. Williams, Case No. 20-3447, 2020 U.S. App. LEXIS 18087 (6th Cir. June 9, 2020)

– Thomas L. Root

Correcting Your Sentence After Courts Admit a Mistake Gets Harder – Update for January 14, 2020

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6TH CIRCUIT REFUSES § 2241 MOTION ON CIRCUIT SENTENCING STATUTE REINTERPRETATIONS

habeasB191211Since the Anti-Terrorism and Effective Death Penalty Act of 1996, post-conviction habeas corpus motions brought under 28 USC § 2255 have pretty much been one-to-a-customer. A prisoner is entitled to file a second § 2255 motion only where the Supreme Court had issued a constitutional ruling made retroactive (such as 2015’s Johnson v. United States) or where prisoners discover new compelling evidence that they are actually innocent of the offense of conviction.

But § 2255 has a “savings” clause in subsection (e), that lets a prisoner file a classic habeas corpus action under 28 USC § 2241 if the  § 2255 remedy is “inadequate or ineffective to test the legality of his detention.” The Supreme Court held in the 1997 Bousley v. United States decision that if there is a change in statutory interpretation (but not a constitutional violation) that makes a prisoner actually innocent of the crime of conviction, the § 2255(e) “savings” clause applies.

magnacarta200116

For those who came in late: Section 2241 of Title 28 of the U.S. Code establishes procedures for petitioning for a writ of habeas corpus. It establishes the rules for exercising that ancient (think Magna Carta) right to petition the courts whenever one is being detained (jailed or imprisoned) unconstitutionally or contrary to law. It may be the most valuable right anyone has anywhere (that’s why they call it “the Great Writ“).

But when the writ of habeas corpus is aimed not at the jailer, but instead at the constitutionality of the federal court proceeding that got you to prison in the first place, Congress wrote a separate statute – 28 USC § 2255 – to govern those proceedings. A third section, 28 USC § 2254, addresses procedures for state prisoners who have exhausted their habeas rights in state court, and have to head off to federal court.

manyguns190423Now, back to the live action… Just about every federal prisoner files his or her one-and-only § 2255 motion. You have a year from the time your conviction is final, so it is very much a use-it-or-lose-it proposition. But what if (as often happens) you discover something new that could get you released, but the discovery comes after the year passes? Take our hypothetical defendant, Smith N. Wesson. Unsurprisingly, Smith was convicted of being a felon in possession of a firearm under 18 USC § 922(g), despite the fact that he did not know that his prior state conviction was a felony as opposed to a misdemeanor. A felony made him ineligible to possess a gun, a misdemeanor did not. Smith’s lack of knowledge that he was breaking the law made no difference: he would have nonetheless have been guilty. Up until last June, it was not necessary that Smith know he was prohibited from possessing a gun. He only had to know that thing he was carrying was a gun rather than, say, a toaster. And if our man Smith knew anything, he knew guns.

But in June 2019, the Supreme Court threw Smith a bone. It held in Rehaif v. United States that a § 922(g) defendant had to know that he or she was in a class of people prohibited from possessing firearms. After Rehaif, Smith would not be guilty of the crime.

Rehaif was not a decision on the constitutionality of 18 USC § 922(g). Instead, it was just an interpretation of what the statute said. What it had always said, the Supremes said, but none of the courts of appeal had ever under understood that.

gunknot181009But Rehaif put Smith in a quandary: although he was as innocent as a lamb, Smith had already used his § 2255 rights several years before, and he thus could not file a second § 2255 unless he met the narrow criteria. And he definitely did not. But he could file a § 2241 petition, because the § 2255(e) savings clause applies.

Most circuits (not the 10th and 11th) hold that even where a later Supreme Court decision affects only a prisoner’s sentence, not just the prisoner’s conviction, he or she may file a § 2241 petition to get relief. The 4th Circuit has gone further: in the 2018 United States v Wheeler decision, the 4th said that prisoners barred from filing a second § 2255 motion may seek habeas relief under 28 USC § 2241 based on new statutory interpretation decisions from circuit courts of appeal, not just the Supreme Court.

All of which brings us to today’s case. Ramon Hueros got a drug distribution sentence under 21 USC § 841(b)(1)(A), the mandatory minimum time for which was doubled from 10 to 20 years because he had been previously convicted of two state drug convictions. After a 9th Circuit and 4th Circuit decision held those prior state convictions were not really felonies at all (which meant Ramon should never have gotten a 240-month minimum federal sentence), he filed for relief. He had previously filed and lost a § 2255 motion, so he filed a § 2241 petition for habeas corpus under the “savings” clause.

limitone170912Last week, the 6th Circuit ruled 2-1 that Ramon was not entitled to use the § 2255(e) savings clause (and thus, file a 2241 motion) based on a new court of appeals decision changing statutory interpretation. “Although the 4th Circuit has blessed an identical request [in the 2018 decision, United States v. Wheeler], we must respectfully decline. Among our reasons: Congress allowed prisoners to file a second § 2255 motion only if the Supreme Court adopts a new rule of constitutional law… We would write this limit out of the statute if we held that new rules from the circuit courts (whether of statutory or constitutional law) could render 2255 inadequate or ineffective and trigger the right to a second round of litigation under 2241.”

The Circuit said a § 2255 remedy is not ineffective unless a prisoner identifies a new Supreme Court decision – not just a circuit court decision – reinterpreting a statute. The AEDPA history, as well as the practical effects of holding otherwise – such as gutting the efficacy of the § 2255(f) time requirements – suggest that circuit court statutory rulings should not fall under the § 2255(e) savings clause.

This may finally be the savings clause decision that makes it to the Supreme Court, where the Court will impose national uniformity on use of the clause to bring 2241 challenges where statutes are reinterpreted to make what was once illegal now legal.

Hueso v. Barnhart, 2020 U.S.App. LEXIS 618 (6th Cir. Jan. 9, 2020)

– Thomas L. Root

A Nod Is Not As Good As A Wink in Habeas Corpus – Update for December 10, 2019

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2241 PETITION IS SELDOM A SUBSTITUTE FOR A 2255

island191211I would be writing this newsletter from the beach of my own Caribbean island if I had a dime for every guy who tells me he wants to file a petition for habeas corpus under 28 USC § 2241 petition because his 28 USC § 2255 habeas motion has already been denied. It just doesn’t work like that, as the 8th Circuit reminded a defendant last week.

Some quick history: “habeas corpus” is convenient shorthand for “writ of habeas corpus,” which is a judicial command to jailer to produce the “body,” that is, produce the prisoner in court and show by what right that person is being detained. The right was crucial back in the day when the King could jail anyone for anything and hold the prisoner without ever bringing him to court. The right of habeas corpus was so universally assumed to exist that the Constitution only mentions it as an exception, permitting the president to suspend habeas corpus during time of war. The only presidents to actually do that were Lincoln, Grant and FDR.

habeas191211Congress has passed statutes to regulate the use of habeas corpus. Under 28 USC § 2255, a Federal prisoner may challenge the lawfulness of his or her conviction or sentence. If it is the lawfulness of the detention being challenged – for example, how the Bureau of Prisons calculates the termination of a sentence – then a petition for habeas corpus under 28 USC § 2241 is filed.

The law places severe limitations on when a § 2255 motion may be filed, and whether a second one may be filed at all. Some prisoners think that to get around these § 2255 limitations, all they need to do is file a § 2241. Not so.

Chris Lee had been released from a prior federal sentence, and was serving a term of supervised release (sort of like parole) when he picked up some new fraud charges. The judge hearing the SR revocation gave Chris 35 months, but said that the time would be concurrent with anything he got on the new charges. But a different judge handling the new case gave him 57 months, and ordered it would be consecutive with the 35 months he got on the supervised release revocation.

Chris filed a § 2255 motion with his revocation judge, asking that the SR sentence be vacated and then reimposed so that as the later sentence, the BOP would have to run it concurrent regardless of what the 57-month sentence said. But he did not file the § 2255 motion on the right form, so the SR court sent it back for him to fix and refile.

But Chris did not do that. Instead, he filed a § 2241 petition in the district where he was locked up, arguing the BOP was wrong to run the sentences consecutively where the SR sentence said it was to be concurrent. The district where he filed said that the remedy he sought was really one available in a § 2255 motion, and sent it back to his SR judge, who held that the BOP’s interpretation was reasonable and therefore denied the petition.

habeasB191211Last week, the 8th Circuit denied it for a completely different reason, holding that it lacked subject-matter jurisdiction to hear the appeal unless Chris could show that “the remedy under § 2255 would be inadequate or ineffective.” This showing — required by the § 2255(e) “savings clause” — is tough to make. A § 2255 remedy is not inadequate just because a petitioner has already used up his one shot at a § 2255, or where the petitioner was unaware of his claim when the § 2255 was filed, or even if no § 2255 has ever been filed and the time to do so has passed.

Here, Chris failed to show that he was unable to pursue his desired relief by filing a § 2255 motion with the sentencing judge. Had the sentencing judge been persuaded by Chris’ arguments, the Circuit said, he could have had his sentence vacated. Had the sentencing judge denied his petition, he could have appealed that decision. But what he could not do is “forgo a decision on a § 2255 petition in the sentencing court in favor of pursuing a § 2241 petition somewhere else.”

Lee v. Sanders, 2019 U.S. App. LEXIS 35853 (8th Cir Dec. 3, 2019)

– Thomas L. Root

Sisyphus Keeps Pushing – Update for September 25, 2019

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NOTHING HAPPENS FAST – PART 2

Complaining about how long it takes district courts to act on 28 USC § 2241 habeas corpus petitions and 28 USC § 2255 motions is even more common that complaining about BOP’s sloth in updating records. And the complaints are just as effective, which is to say, not very.

delay190925

Most of the people who hang around a prison law library can tell you that habeas corpus is supposed to happen quickly. They cite 28 USC § 2243’s requirement that the judge “shall forthwith award the writ or issue an order directing the respondent to show cause.” And they quote the 1963 Supreme Court decision in Fay v. Noia that habeas corpus is intended to “provide a prompt and efficacious remedy for whatever society deems to be intolerable restraints.”

But what is “prompt and efficacious?” It turns out, the courts define “prompt” in geologic terms. Last week, the 4th Circuit denied a petition for writ of mandamus filed by Mustafa Muhammad.

Mandamus is a wonderful device. A writ of mandamus is an order issued by a court directing an official to take some action which is not discretionary. Or, as in this case, mandamus is an order of a higher court directing a lower court to take such a non-discretionary action. Mandamus cannot direct the lower court to grant or deny a pending action, but it can order the judge to do something.

Mustafa filed his § 2255 motion in 2016. It has been awaiting a district judge’s decision since January 2017. He filed a petition for mandamus with the U.S. Court of Appeals last February, asking that court to order the district court to act one way or the other on his § 2255 motion. The petition apparently convinced the lower court to act, because it finally denied the § 2255 motion two months ago, 34 months after he filed it.

Still, it is troubling that the district court did not act for five months after the mandamus action was filed, and the 4th took a whopping seven months to act on a petition asking it to order that a dilatory lower court finally take action. Oh, the irony.

Last week, the 4th also denied mandamus to Rick Chestnut, a prolific civil action and habeas filer (PACER shows he has filed over three dozen cases in the last five years). Rick filed a § 2241 petition in March, complaining about irregularities in a disciplinary hearing. When he had gotten no response from the district judge by the first week of June, he filed a mandamus petition with the 4th Circuit.

nuclear190925Although the district court has passed six months without even asking the government to answer, the Circuit said, “We find the present record does not reveal undue delay in the district court.” The language is curious, suggesting that there is some kind of delay that is “due.” This seems to be at odds with the 28 USC § 2243 “forthwith” standard, not to mention Fay v. Noia’s “prompt and efficacious” language.

Mandamus has always been the “nuclear option” for people whose post-conviction § 2241s and § 2255s are languishing. I have never favored it, because it is reasonably to anger the very judge who is to be deciding the merits of your case. Mandamus is a filing that is the legal equivalent of tattling on the teacher’s pet to the teacher. It usually irritates the teacher’s pet – who immediately finds out you ratted him or her out – and hardly ever gets favorable results from the teacher.

In re Muhammad, Case No. 19-1210 (4th Cir. Sept. 19, 2019)
In re Chestnut, Case No. 19-1595 (4th Cir. Sept. 20, 2019)

– Thomas L. Root

Sisyphus Had Nothing on Us – Update for September 24, 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.

NOTHING HAPPENS FAST – PART 1

sisyphus190924Remember that Greek guy who kept rolling the rock up the hill, only to have it roll back down, and then he’d have to do it again? Yeah, that Sisyphus character… Legal combat with the Bureau of Prisons over the agency’s glacial pace in updating sentences to add the additional 7 days-a-year good time credit is something like that.

Last December, the First Step Act amended the wording of 18 USC 3624(b)(1) to correct a Congressional oversight. Congress had always intended that federal inmates get 54 days per year good-conduct credit, but it had written the statute so badly that the BOP was able to interpret 54 days to really mean 47 days. No fooling. The First Step Act was to fix that.

onecar190924But trust Congress to screw up a one-car parade… even the “fix” was messed up. Congress meant that inmates would immediately retroactively receive seven extra days for every year they had served in their sentences, the be only 47. But the statute was unclear, and the BOP took the position that the extra seven days would only be effective on July 19th (180 days after the statute passed).

Even that hasn’t worked. Since July 19th, I have been bombarded with emails from inmates that the BOP has yet to correct their sentences to add the extra seven days per year. The BOP complains that the process is labor-intensive, and it’s moving as fast as it can.

Attempts to address the problem judicially has thus far come to naught. Case in point: Tim Greene, doing a long sentence for bank robbery, was due to be released August 9th. But with the additional 7 days a year, his release date would be moved back to March 29. He filed a habeas corpus petition in the Northern District of Texas last February, arguing that he was due the extra good time right away, and should be released at the end of March.

The District Court dismissed the petition as premature, because July 19th had not yet come around, and Tim appealed. By now, it was early June. He filed his brief, a motion for expedited consideration, and a request for conditional release. But nothing happened fast. The government filed its brief a month later, and Tim replied on July 18. The next day, the BOP kicked him out the door, which is exactly what would have happened had Tim done nothing.

nothing190924Last week, the 5th Circuit finally ruled. It held the BOP was right that the extra goodtime only became effective on July 19, making Tim’s petition premature. Because Tim got out July 19, the requests for expedited consideration and conditional release were dismissed as moot.

There are undoubtedly habeas cases in the pipeline over the BOP’s failure to update release dates by applying the extra goodtime, a failure that messes with release plans and halfway house/home confinement placement. But as Tim’s case – which took seven months start to finish – shows, nothing happens fast.

Greene v. Underwood, 2019 U.S. App. LEXIS 28512 (5th Cir. Sept. 20, 2019)

– Thomas L. Root