Tag Archives: mandamus

6th Mandamuses District Court Plea Agreement Limits – Update for May 3, 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.

6TH CIRCUIT SHUTS DOWN DISTRICT JUDGE WHO DOESN’T LIKE PLEA WAIVERS

Just about any defendant who has ever made a plea deal (about 94% of federal prisoners) has faced a provision in the agreement known as an “appeal waiver”, where the defendant agrees not to appeal or file a 28 U.S.C. § 2255 post-conviction motion except in the most extreme cases. The waivers are often overlooked or underappreciated by the defendant, and rarely explained adequately by defense counsel or the court.

Waivers160215Still, they’re a boon to the government. A waiver ensures that the defendant will never be back to complain on appeal or habeas corpus about infirmities in the sentencing, whether caused by court error or defense attorney misfeasance. Some creative U.S. Attorneys were even bulletproofing their convictions against future changes in the law or Guidelines that might otherwise entitle the defendant to a lesser sentence. A few go so far as to prohibit the defendant from filing a Freedom of Information Act (5 U.S.C. § 552) request to law enforcement agencies. Ohio State University law professor Doug Berman calls an appeal waiver nothing more than a “(government labor-saving) device” that should be “void as against public policy.”In fact, the Dept. of Justice only two months ago had to stamp out the nascent practice by some U.S. Attorneys requiring a defendant to waive any right to petition for a compassionate release sometime under 18 U.S.C. § 3582(c)(1)(A)(i) in the future. Such motions are based on extraordinary changed circumstances that make a modificationof the sentence an act of compassion.

sorry220503‘What, you’re dying of cancer, Mr. Tax Fraud convict, and you would like to spend your final months dying at home instead in a federal prison? Sorry, Charlie, you waived the right to ask the judge for that in your plea deal six years ago…’

A few judges find appeal waivers so odious that they will not accept a plea deal containing one. One such federal judge is David Lawson, who sits on the U.S. District Court in the Eastern District of Michigan. He got slapped down last week by the 6th Circuit, which granted a writ of mandamus against him for rejecting a plea deal based on his “longstanding practice” of rejecting agreements containing appeal waivers.

During a pretrial hearing in a federal drug prosecution for Ashley Townsend, Judge Lawson told the parties that his “practice over the years has [been to] not… to accept plea agreements that have waivers of rights to collateral review or the right to appeal a sentence determination or sentencing issue that is disputed.” Perhaps because U.S. Attorney Dawn Ison doesn’t give as fig what a federal judge wants, or perhaps because she thought she finally had the perfect test case, Dawn’s office and Ashley signed a plea agreement with appeal waivers anyway.

Judge Lawson was as good as his work. He rejected the proposed deal.

The government filed a petition for writ of mandamus with the 6th Circuit, asking for an order telling Judge Lawson that his practice violated F.R.Crim.P. 11, and that he could not impose such a blanket policy. A writ of mandamus is known as an “extraordinary writ.” It is sort of the obverse of the injunction coin. An injunction is a court order prohibiting someone from committing an act. Mandamus is an order to a lower court or government official directing that something be done.

mandamus210218In keeping with its ‘extraordinary’ nature, a writ of mandamus is tough to get. A party seeking a writ of mandamus must show that (1) it has no other adequate means of obtaining relief, (2) its right to mandamus is “clear and indisputable;” and (3) the issuance of the writ was “appropriate under the circumstances.”

The Circuit agreed the U.S. Attorney was entitled to its writ. The 6th pointed out the government has no right under the law to file an interlocutory appeal of Judge Lawson’s denial of a plea deal, and if Ashley would later plead guilty to the indictment, be convicted by a jury, or be acquitted after trial, the government had no right to a direct appeal in which the Judge’s practice could be questioned. “In this case,” the Circuit said, “mandamus is the only adequate means for the United States either to compel the district court to adhere to Rule 11.”

Second, the 6th ruled, “the district court’s violation of Fed.R.Crim.P. 11 was ‘clear and undisputable.’ Rule 11 prohibits the court from participating in plea discussions… When a district court expresses its preference for or against certain plea-bargaining terms in an unfinalized or hypothetical plea agreement, the Circuit rules, the court impermissibly participates in plea negotiations in violation of Rule 11.”

Here, the Circuit held that the district court abused its discretion by rejecting the parties’ plea agreement without a case-specific “sound reason.” In other words, if the court rejects Ashley’s plea deal because of the presence of the waiver. it needs a reason based on the particulars of Ashley’s situation.

Finally, the 6th said, mandamus is appropriate in this circumstance. The issue had never been decided before, it “involves important questions… which bear on the ‘efficient administration of justice,” and raises “questions that might evade review if not considered at this time.”

bonkers220503University of North Carolina criminal law prof Carissa Byrne Hessick called this decision “bonkers.” She said this “astonishing decision curtailing trial courts’ power to reject plea bargains… I hope the 6th Circuit decides to hear this case en banc and to reverse this terrible panel decision. Plea bargaining has warped the criminal justice system. And if other courts follow the Sixth Circuit, it will get even worse.”

Professor Berman said in his Sentencing Policy and Law blog that he “generally agree[s] with the District Court’s stated policy concerns with all appeal waivers: ‘The court explained its belief that appeal waivers “embargo” trial court mistakes, “insulate” the government’s conduct “from judicial oversight,” effectively “coerce” guilty pleas with offers “too good to refuse,” and “inhibit[] the development of the Sentencing Guidelines”‘.”

As usual, the Volokh Conspiracy is succinct about it:

During plea bargaining, prosecutors will often offer criminal defendants an escape from unconscionably long mandatory minimum sentences if they waive their right to appeal their conviction or challenge it on collateral review. It’s a system that’s ripe for abuse and coercion. But, per the Sixth Circuit, that’s no reason for a district judge to have a blanket rule against approving plea deals that contain these waivers. Mandamus-ed!

DOJ, Department Policy on Compassionate Release Waivers in Plea Agreements (March 11, 2022)

Sentencing Law and Policy,  Sixth Circuit panel grants mandamus because district judge rejected a plea deal with an appeal waiver the wrong way (April 28, 2022)

In re United States, Case No 21-1318 (6th Cir. April 26, 2022) 

Twitter, Carissa Byrne Hessick (April 26, 2022)

The Volokh Conspiracy, Short Circuit: A Roundup of Recent Federal Court Decisions (April 29, 2022)

– Thomas L. Root

Mandamus Brings A Habeas Home – Update for February 17, 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.

MANDAMUS FINALLY WORKS FOR SOMEONE

money160118I would retire right now if I had a dime for every time a federal prisoner asks about filing a petition for writ of mandamus. Mandamus is a powerful weapon: the writ (literally, the order) of mandamus is issued by a higher court, directing a lower court it has to do something – that is, something ministerial instead of discretionary.

The best example is also, at least in the federal criminal sphere, the most common. A lower court has discretion as to whether it grants a party relief on, say, a petition for habeas corpus. The judge may grant it; the judge may deny it. But the court cannot sit on its gavel and do nothing. It must do something, although it is permitted a reasonable period of time in which to study, contemplate, and dig its way down its stack of other uncompleted work to get to the petition.

There are other, more creative uses of mandamus, most often practiced in civil litigation. But for now, let’s stick to the straightforward “making a lower court do something that is obviously ministerial.”

mandamus210218Because it’s so powerful, mandamus is a hard writ to obtain. The test for convincing a writ of mandamus includes showing that the movant’s right to the writ is indisputable and that there is simply no other way for the movant to get relief. It’s sort of the 9-1-1 call of extraordinary writs.

Kevin Hall was a federal prisoner pursuing a 28 USC § 2241 petition for habeas corpus. A § 2241 motion – which is the federal version of the classic writ of habeas corpus – must be filed in the district where the prisoner is located, which Kevin did. But then the Bureau of Prisons moved him from Indiana to Florida (something that I, looking out my window at 18″ of snow on the ground, think sounds like a good deal). The Indiana federal district court in which Kev had filed his petition inexplicably concluded that his transfer stripped it of jurisdiction to hear the § 2241 motion. Thus, the court transferred Kev’s case to Florida.

Any aficionado of the federal circuits knows that a defendant would much rather have his or her post-conviction motion heard in the 7th Circuit (of which Indiana is a part) than in the 11th Circuit (down Florida way). This is especially so where the remedy Kevin sought – a holding that the 2015 Supreme Court Johnson decision invalidated his Armed Career Criminal Act conviction – was likely to be shot down by the 11th, which doesn’t like any such § 2241 attacks on convictions or sentences.

So Kevin asked the 7th Circuit for a writ of mandamus bringing the case back to Indiana. He cited prior decisions holding that a prisoner’s transfer from one federal facility to another during a habeas proceeding does not affect the original court’s jurisdiction. Last week, the 7th Circuit agreed with Kevin, and issued the order.

home210218The government argued that Kev should have completely litigated his § 2241 motion in the Florida court, and then bring up the mistaken-transfer issue on appeal. The 7th swept the argument aside, noting that “without the availability of mandamus relief, the question of proper venue escapes meaningful appellate review… Mandamus is the proper vehicle for obtaining review of a transfer decision…”

In re Hall, Case 20-3245, 2021 U.S.App. LEXIS 4086 (7th Cir., February 12, 2021)

– Thomas L. Root

Don’t Tell Dorothy What Those Ruby Slippers Can Do – Update for December 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.

SECOND CIRCUIT NULLIFIES NULLIFICATION TALK

Jury nullification is like that crazy uncle no one ever talks about. A jury, of course, is told by the judge it must apply the law the facts that the jurors determine. But if a jury decides for whatever reason not to do that, to decide that in spite of the obvious facts and law the defendant should not be found guilty, there’s nothing the court can do about it.

ruby191224On Nov. 4, I reported on a Cleveland case where a defendant, who had just sentenced to 47 years by an Ohio judge, sucker-punched his lawyer. The courtroom security camera caught the whole thing. But when the prosecutor later tried the defendant for aggravated assault, the jury – after seeing the punch repeatedly and in slo-mo during the trial – found the defendant not guilty. That’s jury nullification.

The catch is that the law will not let a judge or the defense attorney tell the jury it has the right to find a defendant not guilty despite the law, despite the facts, or even despite what the sentence might be if the defendant is convicted. The nullification power is like Dorothy’s ruby slippers: she wore those things for the whole trip through Oz never knowing they could take her back to Kansas with three taps whenever she wanted them to.

And yet, jury nullification is as American as apple pie. This nation’s preoccupation with truth as a defense to libel – as well as with the sanctity of the jury’s determinations – first came in 1735 – when a jury rode roughshod over a biased judge in acquitting publisher John Peter Zenger of libel (yes, it was criminal at the time) against the governor of the New York colony.  The jury deliberated for all of ten minutes, probably that long because the jurors wanted to finish their tea before re-entering the courtroom.

Yehudi Manzano had a romance with a 15-year old girl. He took some cellphone video of the two of them having sex, with the girl’s consent. Ultimately, he uploaded it to his personal cloud account. No one but Yehudi and the girl ever saw the video. But in a typical example of prosecutorial overreach, Yehudi was indicted for production of child porn, which carries a 15-year mandatory minimum.

The defense asked permission to tell the jurors about the 15-year mandatory minimum and about their right of nullification. The judge agreed, saying, “This is a shocking case… that calls for jury nullification… I am absolutely stunned that this case, with a 15‐year mandatory minimum, has been brought by the government… it is extremely unfortunate that the power of the government has been used in this way, to what end I’m not sure.”

zenger191224

The government filed a petition for writ of mandamus – which is an order telling a subordinate court or official to do something it has refused to do – and last week the Second Circuit gave the U.S. Attorney half a loaf. “Applying settled law in this circuit,” the Court said, “we hold that the government has a clear and indisputable right to a writ directing the district court to deny defense counsel’s motion for leave to argue jury nullification.” But the Court denied mandamus on whether the defense could tell the jury about the 15-year sentence, saying, “at this time, the government does not possess a clear and indisputable right to a writ directing the district court to exclude any evidence of sentencing consequences.”

One judge on the panel, Barrington Parker, dissented:

This case presents the unusual circumstance where a conscientious jurist is confronted with a charging decision that, in his considered judgment, reflects an abuse of prosecutorial power. Charging decisions are, of course, by and large the exclusive province of prosecutors… Faced with the Government’s charging decision, Judge Underhill could, I suppose, have acquiesced in whatever the prosecutors wanted. But he is not a piece of Steuben glass. Instead, witnessing what he perceived to be abuse, he pushed back. I believe that most conscientious jurists would have done the same. I have no difficulty concluding that Judge Underhill was right to do so. Federal courts have authority under their supervisory powers to oversee the administration of criminal justice within federal courts. They should use these powers to see that the waters of justice are not polluted and to protect the integrity of the federal courts… Whether Judge Underhill went too far is debatable. But because this case does not come close to meeting the exacting standards for mandamus, I respectfully dissent..

Ohio State University law prof Doug Berman said in his Sentencing Law and Policy blog, “In the recent Haymond case, Justice Gorsuch spoke broadly about the Framers’ vision of the jury right and explained… ‘The right to a jury trial sought to preserve the people’s authority over its judicial functions.’ But how can the people have authority over the judicial function if they are not fully informed of their rights and authority as jurors and not made aware of the possible consequences of their decisions?”

United States v. Manzano (In re United States), 2019 U.S. App. LEXIS 37415 (2nd Cir. Dec 18, 2019)

Sentencing Law and Policy, Split Second Circuit panel grants feds request for mandamus to preclude a jury nullification instruction in child porn case involving 15-year mandatory minimum (Dec. 19)

Hartford Courant, U.S. appeals court rebukes federal judge in Connecticut who endorsed jury nullification in the trial of a sex offender (Dec. 18)

– Thomas L. Root

Sisyphus Keeps Pushing – Update for September 25, 2019

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

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