Tag Archives: second-or-successive

This Mallard Is Not A Duck, 6th Circuit Holds – Update for June 6, 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.

JUSTICE REQUIRES THAT THIS 60(b) NOT BE CALLED A DUCK
Except when it's not...
Except when it’s not…

Ever since the Supreme Court’s 2005 Gonzalez v. Crosby decision, people who try to use F.R.Civ.P. 60(b) as a means of getting the denial of a 28 USC § 2255 post-conviction motion reconsidered have run into a brick wall. If the Rule 60(b) motion was challenging the underlying conviction at all rather than an infirmity in the 2255 proceeding (and they almost always are), the 60(b) was deemed to be a second 2255 motion and was kicked to the Court of Appeals (where it was almost always spiked).

But sometimes, justice’s cries are so loud that they are heard.

Roy West is serving a life sentence for a murder-for-hire conviction that now, even his sentencing judge describes like this:

Errors on the part of competent people — prosecutors, defense counsel, probation officers and, ultimately, this judge at the time of sentencing — resulted in the imposition on Roy of a sentence in violation of the law. Even skilled appellate counsel failed to raise the sentencing error.”

habeas_corpusNot that Roy hasn’t tried. He filed a 2255 years ago, arguing that “counsel was ineffective for failing to investigate a causation defense. The district court denied that motion, however, explaining incorrectly that death was ‘not an element of this offense.’ Years later, the district court, “now aware of the defect in West’s conviction” granted him compassionate release, “concluding that justice and faith in our judicial system demand correcting West’s sentence.” The 6th Circuit reversed, holding that compassionate release could not be used “as a vehicle for second or successive § 2255 motions.”

Roy then filed a Rule 60(b) motion, asking that the 2255 be reopened. He focused on the “injustice to himself and the risk to public confidence in the judicial process that could accrue were his unconstitutional life sentence permitted to stand,” noting that the district court had already admitted that his sentence was wrong. The Government fought the 60(b), demanding that it be dismissed as a second 2255 regardless of the fact that James’ sentence was unlawful. The district court agreed and transferred it to the 6th Circuit.

Last week, the 6th Circuit decided that while the 60(b) may waddle, quack, and fly like a second 2255, justice demands that it not be deemed a second 2255.

“Rule 60(b) allows a party to seek relief from a final judgment, and request reopening of his case, in limited circumstances,” the Court said, citing Gonzalez v. Crosby. “The Rule enumerates five specific instances in which relief may be warranted, followed by a catchall covering “any other reason that justifies relief.” Relief under the catchall provision may be granted in ‘extraordinary circumstances’.”

Extraordinary circumstances “rarely occur in the habeas context,” the Circuit said, “but they are not unheard of. Courts considering whether extraordinary circumstances exist “may consider a wide range of factors,” including “the risk of injustice to the parties and the risk of undermining the public’s confidence in the judicial process.”

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Roy’s arguments of injustice, of risk to public confidence, that the district court’s acknowledgment that the sentence was wrong and that the “Government’s conduct in this case raises the specter of fraud on the court,” were the extraordinary circumstances needed to make a Rule 60(b) motion appropriate despite Gonzalez v. Crosby. The case was sent back to the district court to decide the 60(b) motion.

In re W, Case No 23-1792, 2024 U.S. App. LEXIS 12826 (6th Cir. May 29, 2024)

Gonzalez v. Crosby, 545 U.S. 524, 125 S. Ct. 2641, 162 L. Ed. 2d 480 (2005)

– Thomas L. Root

Some § 2255 Motions Are Less Successive than Others, 6th Circuit Says – Update for December 16, 2022

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NOT ALL SECOND 2255s ARE SECOND-OR-SUCCESSIVE, 6TH CIRCUIT SAYS

mulligan190430Generally (a word that is employed dangerously where the law is concerned), every federal prisoner is entitled to file one post-conviction habeas corpus motion challenging his or her conviction under 28 USC § 2255. To file a second one – called a “second-or-successive” 2255 – a prisoner must first petition the court of appeals having jurisdiction over his or her district court for permission to do so.

Permission is only granted if the Supreme Court has handed down a retroactive constitutional decision that would affect the prisoner’s conviction or sentence, or if newly-discovered facts would convince a jury the petitioner was not guilty. These standards – set out in 28 USC § 2244 – are daunting.

Fortunately, while all men may be created equal, not all second-and-successive 2255s are.

rodeo221216In 2007, Ronald Jones was convicted of meth distribution. It was not Ron’s first rodeo – he had two California drug distribution priors. Under 21 USC § 841(b)(1)(A), a defendant with two prior drug convictions would see his or her mandatory minimum set at 300 months. Ron got 360 months.

In 2016, Jim lost a 28 USC § 2255 post-conviction motion raising a Johnson claim. Then, last year, Jim got one of his prior state cases dismissed under California’s Proposition 47. He then filed a 28 USC § 2244 motion with the 6th Circuit, asking permission to file a second § 2255 motion raising a sentencing issue because he no longer qualified for the “two priors” § 841(b)(1)(A) enhancement, and his mandatory minimum dropped to 180 months.

Last week, the 6th Circuit denied Ron’s § 2244 as “unnecessary” and sent his § 2255 to the district court for consideration.

The Antiterrorism and Effective Death Penalty Act limits courts’ authority to hear “second or successive” § 2255 motions. But not all successive § 2255s are “successive” in the eyes of the law.

The Circuit held that “some second-try § 2255 motions are not ‘second or successive’ within the meaning of 2255(h).” Where “the events giving rise to a 2255 claim have not yet occurred at the time of a prisoner’s first 2255 motion, a later motion predicated on those events is not second or successive… A motion based on changes to a prisoner’s eligibility for parole, for example, is not ‘second or successive’ if the changes occurred after the prisoner took his first shot at 2255 relief. Section 2255 is strict, but (in this context at least) it does not demand clairvoyance – that prisoners predict their claims before they arise.”

For Ron, “the events giving rise” to his second § 2255 claim came about in 2021, when California dismissed and vacated his prior California conviction, well after the 2016 § 2255 petition.

circuitsplit220516Not every Circuit agrees with the 6th on this. So far, only the 4th, 7th, 10th and 11th concur that petitions like Ron’s are not successive. The decision could set up a Supreme Court review, but the government would have to be the one to appeal, and that’s unlikely.

In re Jones, Case No. 22-5689, 2022 U.S.App. LEXIS 33759 (6th Cir., December 8, 2022)

– Thomas L. Root

Procedure Matters… Innocence? Not So Much – Update for March 24, 2022

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IN § 2255 CASES, PROCEDURE MATTERS

procedure220324Over the past three weeks, Russia has been reminded of the truth of General Omar Bradley’s old saw that “amateurs talk strategy, professionals talk logistics.” Likewise, two cases handed down last week underscore the truth that inmates talk substance, judges talk procedure.”

DeMarko Collins pled guilty to being a felon in possession under 18 USC § 922(g)(1). DeMarko’s presentence report determined he had two prior felony convictions for crimes of violence, including a Missouri 2nd-degree robbery, which enhanced his Guidelines advisory sentencing range under USSG § 2K1.1.

Five months before DeMarko’s sentencing hearing, a divided 8th Circuit panel held in United States v. Bell that Missouri 2nd-degree robbery was not a crime of violence, but DeMarko’s attorney goofed and did not cite the decision in opposing the § 2K2.1 enhancement. The district court granted the government’s motion for an upward variance, and sentenced DeMarko to 216 months.

DeMarko appealed his sentence. Relying on Bell, he argued the § 2K2.1 enhancement should not have applied. But while his appeal was pending, the 8th Circuit en banc overruled Bell and held that a Missouri 2nd-degree robbery is a violent felony after all. Because of that, Demarko lost his appeal.

stupidlawyr191202DeMarko then filed a § 2255 post-conviction motion, arguing that his lawyer should have cited Bell, which had been controlling authority and good law at the time of his sentencing. The district court denied the § 2255, finding that even if DeMarko was right that his lawyer should have raised Bell at sentencing, “he cannot demonstrate he was prejudiced by” the error.

Last week, the 8th Circuit agreed, holding that by the time DeMarko on “direct appeal cited Bell in challenging his § 2K2.1 enhancement based on a Missouri 2nd-degree robbery conviction, Bell had been overruled… and this prior conviction was once again a predicate crime of violence under the Guidelines. Strickland prejudice ‘focuses on the question whether counsel’s deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair…’ DeMarko was not deprived of a substantive or procedural right to which the law entitles him, so he ‘suffered no legally cognizable prejudice’.”

Meanwhile, in the 9th Circuit, Cesar Gonzalez filed a 28 USC § 2244 application for permission to file a second § 2255 motion. He wanted to argue that his 18 USC § 924(c) conviction for having a gun in furtherance of a crime of violence was invalid because his predicate crime – racketeering – was no longer a categorical crime of violenceunder a new rule of constitutional law announced in the Supreme Court’s United States v. Davis decision.

Last week, the 9th Circuit shot Cesar down, finding that his new Davis argument was not “previously unavailable” as required by 28 USC § 2255(h)(2).

When Davis was handed down, Cesar had filed his § 2255 motion, and the government had responded. Cesar, however, had not yet filed his reply. The 9th Circuit ruled that to show the argument was “previously unavailable” to him, he had to show “that the real-world circumstances that he faced prevented him, as a practical matter, from asserting his claim based on a new rule of law in his initial habeas proceeding.”

The Circuit said it “recognized that pro se prisoners face unique difficulties when litigating habeas relief or anything else, and that language barriers, as Cesar cited in his case, add to those difficulties.” However, the 9th ruled, “nothing in the text or context of AEDPA‘s previously-unavailable-claim requirement suggesting that this limited exception to the otherwise broad prohibition against filing second or successive habeas proceedings was intended to be applied subjectively.”

innocent210504The 9th concluded that Cesar could show that his new Davis argument was unavailable during his initial § 2255, where Davis issued shortly before Cesar filed his reply brief and a few months before the § 2255 was decided. Cesar had the facts that he needed for his claim, the Circuit held, and no systemic or external barrier prevented him from presenting his claim in his initial habeas proceeding.

So it did not matter that Cesar stood convicted of a § 924(c) offense unlawfully, because a hypothetical reasonable inmate would have tried to raise Davis in the nearly-completed § 2255 proceeding.

Substance? Who cares about substance when procedure triumphs?

Collins v. United States, Case No. 20-3662, 2022 U.S. App. LEXIS 6725 (8th Cir., March 16, 2022)

Gonzalez v. United States, Case No 20-71709, 2022 U.S. App. LEXIS 6943 (9th Cir., March 17, 2022)

– Thomas L. Root

59(e) Motion Not A Trap for the Unwary: Supreme Court – Update for June 2, 2020

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

SUPREME COURT HOLDS 59(e) MOTION IS NOT A SECOND BITE OF THE HABEAS APPLE

For the last 2 years, prisoners seeking one final whack at the lawfulness of their convictions or sentences have had to contend with the limitations of a law known by the mouthful “Antiterrorism and Effective Death Penalty Act of 1996.”

secondbiteapple190213Even the name of the Act is strange. No one can be opposed to “antiterrorism.” Well, almost no one. But “effective death penalty?” I suppose an effective death penalty is one that leaves you dead. But what Congress was getting at here was a means of limiting what some lawmakers thought were endless habeas corpus actions brought by the condemned, so that their date with the Grim Reaper could be delayed as long as possible. The AEDPA was intended to limit such collateral attacks, so that execution was more likely to kill the prisoner than old age.

But the practical effect of the AEDPA was to severely limit the right of prisoners to the federal writ of habeas corpus. The Act set hard time limits on filing motions under 28 USC 2254 (for state prisoners seeking federal habeas relief) and 28 USC 2255 (for federal prisoners), and – important for today’s topic – the right to bring a second 2254/2255 motion after the first one has been decided.

There was a time when a prisoner could file as many 2254 or 2255 motions (known as “second-or-successive” motions) as a court would accept before concluding that the prisoner was “abusing the writ.” But the AEDPA turned the equitable and flexible “abuse of the writ” doctrine into a rigid statutory rule. Now, a prisoner seeking to file a second-or-successive 2255 motion must first get permission to do so from the court of appeals, and the circumstances under which permission can be granted are tightly circumscribed by 28 USC 2244.

But water seeks and finds its own level, and in the wake of the AEDPA’s passage, crafty prisoners filed all manner of other motions instead of second-or-successive 2255s. They would file petitions for writs of mandamus or error coram nobis or audita querela, or Rule 60(b) motions, or civil actions. The courts would whack down the efforts as fast as the prisoners filed them, holding that a motion by any other name was in effect a second-or-successive 2255 if it attacked the conviction or sentence in some manner.

whack200602In civil procedure, a motion brought under Federal Rule Civil Procedure 60(b) asks a court to set aside a judgment that is already final, based on any of a variety of reasons (the favorite one probably being due to newly-discovered evidence). Rule 60(b) quickly became an inmate favorite, letting the movant try to reopen a former 2255 proceeding well after the fact because of evidence of some new constitutional violation or even just more evidence on an issue already raised and lost. In 2005, the Supreme Court ruled in Gonzalez v. Crosby that such a motion was really a second-and-successive 2255 prohibited by the AEDPA unless the motion was solely addressed to some infirmity in the 2255 proceeding itself.

Fast forward 15 years to yesterday. Texas prisoner Greg Banister lost his 28 USC 2254 proceeding, in which he challenged his state conviction in federal court after losing in all of the Texas courts. He lost in front of the federal district judge, too, but – having access to both a book of federal civil rules and a typewriter – Greg promptly filed a motion to alter or amend the judgment under Federal Rule of Civil Procedure 59(e). Rule 59(e) gives a party one more chance to convince the district court it was wrong in its judgment, and it stops a judgment from becoming final as long as it was filed on time and remains pending.

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The federal judge, not any more impressed by Greg’s Rule 59(e) motion than it had been by the underlying 2254 petition, denied the motion. Greg then filed his notice of appeal. However, the district court ruled that the Rule 59(e) motion had really been a second-or-successive 2254 motion over which the court had no jurisdiction. Therefore, the court said, the Rule 59(e) motion had not kept the court’s judgment from becoming final the day it was entered, and that meant that Greg’s notice of appeal – which would have been timely if Greg’s Rule 59(e) filing had stayed finality of the judgment – was late.

The Fifth Circuit agreed with the trial judge. Thus, Greg was denied his appeal.

Yesterday, the Supreme Court reversed the decision. Justice Kagan, writing for a 7-2 court, observed that the case “is about two procedural rules. First, Rule 59(e) applies in federal civil litigation generally. (Habeas proceedings, for those new to the area, are civil in nature)… The Rule enables a party to request that a district court reconsider a just-issued judgment. Second, the so-called gatekeeping provision of the… AEDPA, codified at 28 USC §2244(b), governs federal habeas proceedings. It sets stringent limits on second or successive habeas applications.”

habeas170510The Supreme Court observed that even under the old “abuse of the writ” standard, courts had historically considered Rule 59(e) motions filed in habeas corpus cases on their merits. Plus, a prisoner may invoke Rule 59(e) only to request “reconsideration of matters properly encompassed” in the challenged judgment. And, the Court said, “’reconsideration’ means just that: Courts will not entertain arguments that could have been but were not raised before the just-issued decision. A Rule 59(e) motion is therefore backward-looking; and because that is so, it maintains a prisoner’s incentives to consolidate all of his claims in his initial application.”

As well, the Rule consolidates appellate proceedings. “A Rule 59(e) motion briefly suspends finality to enable a district court to fix any mistakes and thereby perfect its judgment before a possible appeal,” Justice Kagan wrote. “The motion’s disposition then merges into the final judgment that the prisoner may take to the next level. In that way, the Rule avoids ‘piecemeal appellate review’… Its operation, rather than allowing re-peated attacks on a decision, helps produce a single final judgment for appeal.”

The Court contrasting the speed and efficiency of a Rule 59(e) motion with a Rule 60(b) motion, which can be filed years after the judgment. The availability of a Rule 60(b) motion “threatens serial habeas litigation; indeed, without rules suppressing abuse, a prisoner could bring such a motion endlessly. By contrast, a Rule 59(e) motion is a one-time effort to bring alleged errors in a just-issued decision to a habeas court’s attention, before taking a single appeal. It is a limited continuation of the original proceeding—indeed, a part of producing the final judgment granting or denying habeas relief. For those reasons, Gonzalez does not govern here.”

Banister v. Davis, Case No. 18–6943, 2020 U.S. LEXIS 3037 (Supreme Court, June 1, 2020)

– Thomas L. Root