Minus One, Plus Two at Supreme Court – Update for December 12, 2017

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


You may recall McCarthan v. Collins, a case dealing with when and under what terms an inmate may use a 28 USC 2241 motion. Nine federal circuits let inmates file 2241s under the 2255 “saving clause,” which provides that a prisoner may use the 2241 form of federal habeas corpus if it “appears that the remedy by [2255] motion is inadequate or ineffective to test the legality of his detention.”

futility171212Earlier this year, however, the 11th Circuit held that an initial Section 2255 motion is an adequate and effective remedy to “test” a sentence, even when circuit precedent forecloses the movant’s claim at the time of the motion. After all, the Circuit said, a movant could have asked the court of appeals to overrule its precedent, sought Supreme Court review, or both. The saving clause in Section 2255(e), the 11th said, is concerned only with ensuring that a person in custody has a “theoretical opportunity” to pursue a claim, even if, at the time of the initial 2255 motion, the claim was virtually certain to fail in the face of adverse precedent. In other words, you have to raise arguments even when the court has already said the arguments are futile.

Both the 11th and 10th adhere to this draconian view. Dan McCarthan challenged the 11th Circuit interpretation. A few weeks ago, we reported that the Trump Justice Department asked the Supreme Court not to take the case, even though it acknowledged that the legal question is significant and that its new position could condemn inmates to serve out unlawful sentences. A week ago, the Supreme Court denied certiorari to Dan.

Meanwhile two new sentencing cases have been added to the Supreme Court docket. Hughes v. United States revisits the 2011 Freeman v. United States decision. Freeman said that a defendant with a F.R.Crim.P. 11(c)(1)(C) sentence – one where the sentence was fixed in the plea agreement – could get a sentence reduction under retroactive Guidelines changes only were the sentence was somehow tied to the Guidelines. Freeman was a 5-4 decision, and the fifth Justice only concurred, which made her concurring opinion the one that controlled.

undo160812Freeman has been a mess. Hughes gives the Court a chance for a do-over that may let more people with Rule 11(c)(1)(C) sentences reductions.

It frequently happens that defendants cooperate with the government, and are rewarded with a reduction in sentence under Sec. 5K1.1 of the Sentencing Guidelines. In Koons v. United States, the Supreme Court will determine whether a defendant who has a mandatory minimum sentence prescribed by statute, but who gets a 5K1.1 sentence reduction beneath that minimum, can later get a sentence reduction under retroactive Guidelines changes, even where the new sentence is below the mandatory minimum that was voided by the 5K1.1 motion.

Hughes v. United States, Case No. 17-155 (certiorari granted Dec. 8, 2017)

Koons v. United States, Case No. 17-5716 (certiorari granted Dec. 8, 2017)

– Thomas L. Root


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