Tag Archives: pro se

Sometimes You Can Speak For Yourself, 6th Circuit Says – Update for October 16, 2025

Leave a comment

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

CATCH-22

When Derek Riley pled guilty in 2016 to conspiracy to distribute controlled substances, his Guidelines Criminal History Category was III yielded an advisory sentencing range of 135 to 168 months. The district court sentenced him to 160 months.

In 2023, Amendment 821 to the Sentencing Guidelines retroactively lowered some criminal history points, including Derek’s. His new Guideline sentencing range was 121 to 151 months. A public defender representing him in the resentencing stipulated with the government to a 144-month sentence, which the court imposed.

Derek was not happy with the new sentence and filed a document he wrote himself called a “Motion for Reconsideration.” In it, he stated that his attorney had agreed to the stipulation as to his sentence without his knowledge or consent and that, therefore, the district court should reconsider and entertain the arguments he wanted to make in favor of a “time-served” sentence. The district court denied the motion on the grounds that Derek had a lawyer and thus was not allowed to file pro se motions under the policy prohibiting “hybrid” representation. The court told Derek that if he wanted to file a motion for reconsideration claiming that his lawyer had gone off the reservation, he should have his lawyer file it for him.

Joseph Heller’s “Catch-22” was this: If a World War II bomber airman wanted to avoid flying combat missions over Europe by claiming he was insane, he had to apply for the exemption. But the combat missions were so dangerous – only 25 pct of aircrews survived the 25 missions they were to fly before being relieved – that claim madness to get out of combat was interpreted as proof of sanity, so the application would be denied. “Catch-22” now describes a paradoxical situation from which there is no escape.

Thinking that the court’s instruction that only his lawyer could file a motion claiming his lawyer had agreed to something without his client’s approval veered very close to being a “Catch-22,” Derek filed a pro se notice of appeal.

Last week, the 6th Circuit agreed with Derek. The Circuit acknowledged that the rule against hybrid representation was a good one, because usually, whether to file certain motions and what to say in those motions are decisions for counsel, not the defendant.

“But cases like this one,” the 6th held, “present a materially different landscape. Here, the court was not simply presented with a disagreement over strategic choices made by the attorney nor an instance of nonspecific dissatisfaction. Instead, the court was faced with the defendant’s specific allegation that his counsel made a decision affecting the overarching aims of the representation without his knowledge or assent. A defendant must be permitted to make important decisions as to the direction of his case regardless of whether he is represented. A lawyer may not override a defendant’s decision to accept or reject a plea offer or disposition offered by the government because ‘decisions regarding the exercise or waiver of basic trial rights are of such moment that they cannot be made for the defendant by a surrogate…’ Where a defendant alleges conduct that amounts to such a violation, his allegations, if true, point to a breakdown in proper representation. His dissatisfaction and disagreement with his counsel should, therefore, be an apparent and pressing concern, triggering the district court’s obligation to investigate.”

The Circuit observed that the “clear thrust of the motion was that Riley wanted to proceed pro se because his counsel had agreed to a specific disposition of his § 3582 motion (a revised sentence of 144 months) without his consent. The district court then had an obligation to address that allegation directly in deciding Riley’s pro se motion.”

United States v. Riley, Case No. 24-1287, 2025 U.S.App. LEXIS 26350 (6th Cir. October 9, 2025)

~ Thomas L. Root

How Do You Spell ‘Give Me A Brak’? – Update for September 16, 2025

Leave a comment

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

3rd CIRCUIT HELPS OUT LITIGANT WITH THE ‘LEGAL JARGIN’

Chris Lauria, detained in the Allegheny (Pennsylvania) County Jail, sued some corrections officers for excessive force and deliberate indifference. Chris proceeded pro se, and he wasn’t very good at it. At one point, he asked the court to appoint an attorney to represent him because he did not “speak Legal Jargin.”

Chris, like many pro se litigants, struggled in opposing an F.R.Civ.P. 56 motion for summary judgment that the COs had filed, which argued that the case should be thrown out because Chris had not exhausted administrative remedies by going through the jail grievance system first. The COs filed an affidavit from the jail warden that no grievance from Chris had ever been scanned into the system. Chris wrote back that he had been in the Special Housing Unit and had slipped his grievance under the door for pickup, the usual procedure for people in the SHU and only way he had to file.

In granting summary judgment, the District Court relied in large part on a 3d Circuit holding in United States ex rel. Doe v. Heart Solutions, PC, a 2019 case that held that an unsworn statement not made under penalty of perjury cannot be considered in deciding a Rule 56 summary judgment motion. The District Court concluded that Doe meant it “cannot consider the unsworn statements related to exhaustion as part of its summary judgment analysis.”

But Rule 56 has an escape hatch: Rule 56(e) permits a court to issue appropriate orders when “a party fails to properly support an assertion of fact.” Courts have the discretion to allow litigants to address errors in their summary judgment materials, including by allowing additional time for the resubmission of unsworn allegations in supplemental affidavits.

Last week, the 3d Circuit reversed the District Court and reinstated Chris’s lawsuit. It held that the District Court had expanded the scope of the Doe holding “in a small yet significant way. In Doe, we held that statements that are both unsworn and not given under the penalty of perjury are ‘insufficient to create an issue of fact on summary judgment’… But our holding in Doe does not compel courts to completely disregard unsworn statements when assessing the propriety of summary judgment: such statements may inform a court’s decision pursuant to [Rule] 56(e) to issue appropriate orders when “a party fails to properly support an assertion of fact.”

District courts have “ample discretion to call upon the parties to remedy the defects [in summary  judgment materials], by submitting supplemental affidavits or otherwise,” the Circuit said, and “[i]n determining whether to exercise this discretion, courts are permitted to consider the totality of the allegations made, both sworn and unsworn.”

The 3d didn’t tell the District Court whether to give Chris a chance to resubmit his statements under penalty of perjury, but underneath the “legal jargin,” the implication that the Circuit thought the District Court should consider that the failure to do so “appeared to be the product of a pro se litigant’s ignorance of procedural rules — and had not been objected to by Appellees in their summary judgment briefing,” Chris should get a procedural break.

Lauria v. Lieb, Case No. 24-1461, 2025 U.S. App. LEXIS 23622 (3d Cir. September 12, 2025)

United States ex rel. Doe v. Heart Solutions, PC, 923 F.3d 308 (3d Cir. 2019)

~ Thomas L. Root

Continuing Our Santa Gift Review: A Lump of Coal for a Pro Se Defendant – Update for December 28, 2023

Leave a comment

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

‘I AIN’T NO SNITCH – I’M JUST AN IDIOT’

Henry Underwood chose to represent himself at trial on a felon in possession of a firearm charge. After all, what do those lawyers know that Hank doesn’t?

snitchin200309Well, for starters, try this one on for size. Hank took the stand to testify in his own defense to the 18 USC § 922(g) felon-in-possession count. He explained to the jury that the gun found under his car seat belonged to someone else, not to him.

OK, so far, so good. But on cross-examination, the prosecutor asked the obvious question: if not Hank, exactly to whom did the gun belong? Hank tried to plead the 5th Amendment, saying he did not want to name the owner because he was no “snitch.”

You see, Hank, that dumb lawyer you didn’t want would have told you that by testifying, you were waiving your 5th Amendment rights. But Hank had jettisoned his mouthpiece as unnecessary. For his continued refusal to answer the prosecutor’s question, Hank found himself on the receiving end of a criminal contempt finding. Oh, yeah, and the jury found his testimony not credible and thus voted him guilty of the charged offense.

On appeal, Henry (now represented by counsel, a classic “too little, too late” decision if ever there was one, argued that his pretrial waiver of the right to counsel was not knowing and voluntary.

lumpofcoal221215Last week, the 7th Circuit gave Henry a lump of coal. The Circuit reviewed the four factors considered in determining whether a waiver is knowing and voluntary. The first is whether the court had made a formal inquiry into the defendant’s decision to represent himself. Hank argued that the court should have advised him of what his defenses were (and that he’d better be ready to answer questions on cross-examination if he took the stand). The 7th rejected that notion out of hand. The judge is not there to counsel the defendant.

The appellate panel also held that Henry’s “active participation at trial and regular consultation with standby counsel indicate that he knew the choice he was making when he elected to proceed pro se. Reliance on standby counsel reflects an appreciation for the difficulties of self-representation,” the Circuit held.

Besides, the Circuit said, Henry was no virgin. He had two prior felony convictions and one murder acquittal by a jury, “indicat[ing] he possessed knowledge of the complexities of procedure and trial sufficient to make him aware of the task she was undertaking.”

argueidiot180215Finally, the Court said, Hank “chose to proceed pro se after a disagreement with his appointed counsel over his defense and trial strategy. A defendant who waives his right to counsel for strategic reasons, including the decision to proceed without counsel due to differences in opinion regarding defense strategy, tends to do so knowingly… We therefore presume Underwood’s choice in this instance to have been strategic and intentional.”

If Henry thought that he could select which questions he was going to answer when he took the stand, he did not understand the 5th Amendment right against self-incrimination and thus had no business firing his lawyer.

 United States v. Underwood, Case No 23-1303, 2023 U.S.App. LEXIS 33404 (7th Cir., Dec 18, 2023)

– Thomas L. Root

Calling a Rose a Rose – Update for July 24, 2019

Leave a comment

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

A ROSE BY ANY OTHER NAME…

“What’s in a name?” Shakespeare wrote. So why does it matter what an inmate filer calls his or her post-conviction motion under 28 USC §  2255?

rose190724A month before the statutory one-year deadline for filing his § 2255 motion, Richie Elam filed a document he called “Defendant’s Motion Requesting SPECIAL DISCOVERY HEARING to Determine if Level of Court-Appointed Representation was ADEQUATE, Pursuant to the Criminal Justice Act (18 USC § 3006A).” In the all caps-laden motion, Richie requested a hearing concerning whether he had received adequate representation. He also said his guilty plea was given under duress and contended that counsel coerced the plea.

After the 2255 deadline had passed, the district court held Rich had failed to establish that his case required appointment of counsel, saying “a defendant is not entitled to go on a fishing expedition prior to filing a § 2255 motion.” Richie then asked the court to construe the weirdly-titled motion as a § 2255 motion, but the district court refused to do so, saying that Richie knew that whatever his discovery request might have been, it “was not… a § 2255 motion.”

Richie appealed. Last week, the 7th Circuit granted the appeal and reinstated the motion Rich had filed as a § 2255 motion. The Court said dismissal of a first 2255 “is a particularly serious matter, for that dismissal denies the petitioner the protections of the Great Writ entirely, risking injury to an important interest in human liberty.” Because pro se habeas petitions are “not held to the same stringent and rigorous standards as are pleadings filed by lawyers,” the appellate panel wrote, “it is the substance of the relief sought by a pro se pleading, not the label that the petitioner has attached to it, that determines the true nature and operative effect of a habeas filing.”

illegible2255190724While the decision to recharacterize a motion is discretionary, here the district court abused that discretion. District courts must “determine the true nature of a pleading by its substance, not its label.” Here, Richie’s discovery motion, “although inartfully drafted, stated enough that it should have been liberally construed as a § 2255 motion. Rich asserted that his constitutional right to effective assistance of counsel had been violated, resulting in a deprivation of his liberty. He “implicitly stated seven bases for his [ineffective assistance of counsel] claim” and maintained that his guilty plea was entered under duress. Liberally construed, that is enough to qualify Elam’s motion as a § 2255 motion.”

United States v. Elam, 2019 U.S. App. LEXIS 2086 (7th Cir. July 15, 2019)

– Thomas L. Root

We’ve Got the Shorts – Update for April 4, 2018

Leave a comment

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues. Today, we’re posting some short features from Monday’s inmate newsletter.

LISAStatHeader2small
JUDGE POSNER OPENS LEGAL CENTER FOR PRO SE ASSISTANCE

Retired Judge Richard Posner of the 7th Circuit Court of Appeals last week announced the opening of the Posner Center of Justice for Pro Se’s, a continuation of his prior pro bono project. The Center’s vision is to assist pro se litigants  – which constitute up to 50% of federal courts’ workload – behind the scenes to help them to successfully represent themselves.

prose161209“Representing oneself in court is often the best way for a pro se to obtain justice,” Posner said in news release. “Unlike judges, juries tend to be impressed by a lone litigant standing up against a gaggle of lawyers.”

The center already has about 80 lawyers and non-lawyer advisors spread across 27 states, and expects eventually to have representatives in all 50 states as well as U.S. territories. All staff are currently unpaid—though the center says that could change.

“There are reliably believed to be at least a million pro se’s in the United States,” Posner said. “Many of those pro se’s, however, don’t realize they can obtain legal assistance. Therefore, I will continue to work to get the message out that our organization exists, and then try to assist as many deserving pro se’s as possible.”

Posner resigned from the 7th Circuit last fall after more than three decades on the bench. He said he left in part because of disagreements with colleagues over how the court handles pro se litigants, many of whom are prison inmates.

The Posner initiative does not yet have an Internet presence, and no contact information is available. But we’re looking…

Litigation Daily, Introducing The Posner Center of Justice for Pro Se’s (Mar. 28, 2018)

LISAStatHeader2small
HEY, KIDS, DON’T TRY THIS RDAP HACK AT HOME

Who wouldn’t like a year off his federal sentence? The Bureau of Prisons operates an intensive Residential Drug Abuse Program, as directed by Congress, which consists of nine months of classes and treatment while incarcerated and further treatment during the prisoner’s transition through halfway house. Inmates lucky enough to get into the program and to complete it may receive up to one year off their sentences.

lawyer15170317When RDAP started, every defense lawyer quickly learned that he or she should ask the judge to recommend RDAP for a defendant being sentenced. The judges were compliant, because, after all, the recommendation didn’t cost them anything. But the BOP wised up, and began requiring substantial evidence that the inmate had a substance abuse issue in the year prior to his or her arrest.

So getting into RDAP (and getting that year-off carrot the BOP dangles to encourage successful completion) can be tough. But, federal prosecutors say, not if you’re lawyer is hard-charging Brooklyn attorney Scott Brettschneider.

whitey180405As alleged in a criminal case filed last week in the Eastern District of New York, Scott – known to denizens of the EDNY courts as “Mighty Whitey” – drafted a letter to the BOP for one of his clients, falsely recounting the client’s history of substance and alcohol dependence.  The letter was signed by Mighty’s non-lawyer assistant, who said he was the inmate’s treatment provider. Mighty Whitey sent the letter to the BOP to win his client’s admission into RDAP.

The Feds tumbled to the scheme somehow, and wiretapped Mighty Whitey talking to the inmate on a smuggled cell phone in prison, discussing the letter. One of Mighty’s sidekicks allegedly said on a call that he doubted the BOP would be “scrutinizing it that much.”

He appears to have been mistaken. Quite mistaken.

U.S. Attorney E.D.N.Y. News Release, Queens Criminal Defense Attorney and Three Other Individuals Indicted for Conspiracy and Making False Statements (Mar. 26, 2018)

LISAStatHeader2small

WITHER DIMAYA?

The most common question we get from readers is ‘how do I get up out of prison?’ The second most common question we hear is ‘when is the Supreme Court going to decide Lynch v. Dimaya (now known as Sessions v. Dimaya)?’

violence160110Dimaya, which relates in part to whether the Johnson v. United States declaration that part of the “crime of violence” definition was unconstitutional, was argued on the first day of the current Supreme Court term (last October 2nd). This was after the case was held over from the prior term for reargument (suggesting the Court was split 4-4 after the prior argument, which occurred before Justice Gorsuch was confirmed). Of the nine cases argued in October 2017, four of them (including Dimaya) remain undecided. Only Dimaya has any criminal law impact.

Last week, Supreme Court observer Amy Howe predicted that either Justice Kagan or Gorsuch would be writing Dimaya. She did not guess as to when that opinion would issue.

SCOTUSBlog, Reading the Tea Leaves (Mar. 26, 2018)

LISAStatHeader2small

– Thomas L. Root